Charter Practices International, LLC et al v. Robb

Filing 186

Order & Ruling on plaintiffs' motion 144 to compel. See attached. 14 pages. Signed by Judge Donna F. Martinez on 1/23/14. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHARTER PRACTICES
INTERNATIONAL, LLC, et al.,
Plaintiffs,
v.
JOHN M. ROBB,
Defendant.

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CASE NO. 3:12cv1768(RNC)

RULING ON PLAINTIFFS' MOTION TO COMPEL
The
Medical

plaintiffs,
Management

Charter

Practices

International,

Inc.,

International,
bring

this

LLC

breach

and
of

contract action against former franchisee, defendant John M. Robb,
D.V.M.

Pending before the court is the plaintiffs' motion to

compel and for an award of attorney's fees and costs.

(Doc. #144.)

The motion involves a staggering number - almost 60 - of
discovery requests.

Despite being granted an extension of time in

which to respond to the plaintiffs' requests (doc. #128), the
defendant's responses are cursory, inadequate, nonresponsive and
suggest indifference to the serious obligations of discovery.
objections are not well-founded.1
1

His

According to his affidavit,

It appears that the defendant himself prepared the discovery
responses. The defendant is advised that he must make a good faith
effort to search for responsive information and materials. See 7
James Wm. Moore et al., Moore's Federal Practice § 33-102[1] (3rd
ed. 2013)("A party answering interrogatories has an affirmative
duty to furnish any and all information available to the party.");
Fed. R. Civ. P. 34(a)(1)(responding party must produce responsive
documents within his "possession, custody or control").
In
addition, the defendant is under a duty to supplement his responses
in a timely manner if he "learns that in some material respect the
disclosure or response is incomplete or incorrect." Fed. R. Civ. P.
26(e)(1)(A).

plaintiffs' counsel reached out to defense counsel to meet and
confer to resolve these discovery issues before filing the instant
motion but defense counsel did not respond.
¶4.)

(Doc. #145, Wolf Aff.

Most, if not all, of the requests at issue should have been

resolved by counsel without need for judicial intervention.

The

defendant

and

is

production

admonished

requests

that

must

be

answers
full

and

to

interrogatories

complete,

not

evasive.

Responses to requests for admission must fairly meet the substance
of the request.
After hearing oral argument, the court rules as follows:
Interrogatories
1.

Interrogatory #1(a): The defendant objects on the grounds that

there is "no such thing as a 'partial dose'" and asserts that a
"full dose is the volume of vaccine determined by the doctor."
objection is overruled.
context
"partial

to

refer

dose"

to

was

The

The term "full dose" was defined in this

the

manufacturer's

defined

to

mean

recommended
anything

dose

less.

and
See

Interrogatory 3 (defining a partial dose of vaccine as "less than
the dose the vaccine manufacturer recommends be administered in a
single vaccination").

The motion is compel as to interrogatory #1

is granted.
2.

Interrogatory 1(b) is granted. The defendant shall supplement

his response by type of vaccine.
3.

Interrogatory 1(c) is granted.

2

The defendant shall set forth

the information he provided to customers regarding partial doses of
vaccines.
4.

Interrogatory 1(d) is granted.

The defendant shall identify

documents, if any, he provided to customers regarding partial
doses.

If he provided no documents to customers, he shall so state

under oath.
5.

Interrogatory 1(e) is withdrawn by the plaintiffs.

6.

Interrogatory 1(f) is granted.

The defendant shall provide a

description of records he created.
7.

Interrogatory 2 is granted.

8.

Interrogatory 3(a): The defendant objects on the grounds that

there is "no such thing as a 'partial dose'" and asserts that a
"full dose is the volume of vaccine determined by the doctor."
the

reasons

stated

above,

Interrogatory 3(a) is granted.

the

objection

is

For

overruled.

The defendant shall identify any

veterinarian he knows "who administers partial doses of vaccines."
9.

Interrogatory 3(b): The defendant's objection, the same as for

interrogatory 3(a), is overruled.
10.

Interrogatory

4:

The

motion

Interrogatory 3(b) is granted.
to

compel

is

granted.

The

defendant shall provide a complete and responsive answer.
11.

Interrogatories 5 and 6 ask the defendant to state facts and

identify documents that support his denial of ¶¶32 and 33 of the
complaint.

The defendant's objection on the grounds that there is

"no such thing as a 'partial dose'" and that a "full dose is the

3

volume

of

vaccine

determined

by

the

Interrogatories 5 and 6 are granted.

doctor"

is

overruled.

See Maziarz v. Housing

Authority of Town of Vernon, No. 3:10CV2029(JCH), 2011 WL 4538071,
at

*2

(D.

Conn.

Sept.

29,

2011)(overruling

objections

to

interrogatories that seek factual basis for the denial of an
allegation because the interrogatories "are permissible areas of
inquiry

under

the

rules

of

discovery,

subject

to

the

scope

limitations in Rule 26(b).")
12.

Interrogatory 7: The defendant's objection on the grounds that

there is "no such thing as a 'partial dose'" and that a "full dose
is the volume of vaccine determined by the doctor" is overruled.
The motion to compel is granted.
response is complete.
13.

Interrogatory 9:

The defendant maintains his

If so, he shall so state under oath.
The motion to compel is granted.

The

defendant's response is incomplete. The defendant shall separately
answer each of the subparts of the interrogatory in a methodical
way.
14.

Interrogatory 10: The motion to compel is granted.

The

defendant's answer is truncated and not fully responsive as it
neither

describes

his

"involvement"

nor

identifies

responsive

documents.
15.

Interrogatory 15, 16 and 19 seek the facts underlying certain

allegations in the counterclaim.

The motion to compel is granted.

The defendant shall disclose the facts and identify documents

4

supporting ¶¶12, 13 and 32 of the counterclaim.
16.

Interrogatories 21 - 24: The defendant's objection on the

grounds that the interrogatories exceed the 25 limit is overruled.
The motion to compel a response to these requests is granted.
17.

Interrogatory 25 asks the defendant to describe all the facts

and identify all the documents which support the defendant's denial
of any requests for admission.

The defendant's objection that the

interrogatory would exceed Fed. R. Civ. P. 33's limit of 25
interrogatories is sustained.

See Saliga v. Chemtura Corp.,No.

3:12cv832(RNC)(DFM), 2013 WL 6097100, at *3 (D. Conn. Nov. 20,
2013) (where interrogatory sought factual basis for any denial or
partial denial of request for admission, it "should be construed as
containing a discrete subpart for each request for admission" which
resulted

in

the

plaintiff

exceeding

the

25

interrogatory

limit)(citing cases).
Requests for Production
18.

Requests for production 3, 4, 5, 11 and 25 are granted.

The

defendant objects to producing the requested documents because they
are "available online" and as such, equally available to the
plaintiffs.

This objection is insufficient to resist a discovery

request. See, e.g., National Academy of Recording Arts & Sciences,
Inc. v. On Point Events, LP, 256 F.R.D. 678, 682 (C.D. Cal.
2009)(overruling defendant's objection that interrogatory sought
information equally available to plaintiff); Fosselman v. Gibbs,

5

No. C 06-0375, 2008 WL 745122, at *4 (N.D. Cal. Mar. 18, 2008)("the
objection that information is equally available to the questioner
is not a proper objection"); St. Paul Reinsurance Co. v. Commer.
Fin. Corp., 198 F.R.D. 508, 514 (N.D. Iowa 2000) (plaintiffs'
objection that the information and documents sought are equally
available to the propounding parties from their own records or from
records which are equally available to the propounding parties is
a "meritless" basis for objection); City Consumer Services v.
Horne, 100 F.R.D. 740, 747 (D. Utah 1983) (it is "not usually a
ground for objection that the information is equally available to
the interrogator or is a matter of public record"; Petruska v.
Johns–Mannville, 83 F.R.D. 32, 35 (E.D. Pa. 1979)(same); 8 Charles
Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice
& Procedure § 2014 (3rd. ed. 2010)(same).
19.

Request for production 6: The defendant objects on the grounds

that the investigation is confidential and cites Conn. Gen. Stat.
§ 20-204a.

The statute provides that the "investigation shall be

confidential and not subject to disclosure . . . and no person may
disclose knowledge of the investigation to a third party unless the
veterinarian requests that the investigation be open." There is no
case law interpreting this statute.
defendant

waived

confidentiality

The plaintiffs argue that the
by

publicizing

he

is

under

investigation, including posting on a public website a letter from
the State of Connecticut regarding the investigation and discussing

6

the investigation in briefs filed with the court.

See doc. #147 at

3, doc. #141 at 1.

Under the circumstances, the statute is not a

bar to production.

The request is granted.

20.

Request for

production

7:

The

part

of the

defendant's

response in which he objects on the grounds that there is "no such
thing as a 'partial dose'" and that a "full dose is the volume of
vaccine determined by the doctor" is overruled.
compel

is

granted.

If

there

are

no

The motion to

additional

responsive

documents, the defendant shall so state under oath.
21.

Request for production 9, which seeks documents relating to

the defendant's assertion that the plaintiffs interfered with his
website, is granted.

If the defendant does not have any responsive

documents in his care, custody or control, he shall so state under
oath.
22.

Request for production 10, which seeks documents that justify

the

defendant's

entry

into

the

defendant's response is unclear.
he

must

produce

them.

If

hospital,

is

granted.

The

If he has responsive documents,

the

defendant

does

not

have

any

responsive documents in his care, custody or control, he shall so
state under oath.
23.

Request for production 11 seeks documents relating to any

picket or protest the defendant organized. The defendant's answer,
in which he says it was not his idea and that all communications
are on Facebook, is nonresponsive.
24.

The request is granted.

Request for production 13, which seeks documents supporting

7

the defendant's damages claim, is granted.

The defendant did not

provide any documents, asserting that the plaintiffs are "well
aware" of his profits.

This is not a valid objection.

See Wilson

Land Corp. v. Smith Barney, Inc., No. 5:97CV519, 2000 WL 33672980,
at

*3

(E.D.N.C.

interrogatory

Dec.

sought

8,

2000)(overruling

information

equally

objection

available

to

that
both

parties); 8 Wright, Miller & Marcus, Federal Practice & Procedure,
§ 2014 at 288 (a party is allowed to inquire about facts already
known to him or her).
25.

Requests for production 14 - 17 seek documents supporting the

defendant's affirmative defenses and counterclaims.

The defendant

objects on the grounds of overbreadth and undue burden.
objections are overruled.

The

"Under well-settled law, the party

resisting production bears the responsibility of establishing undue
burden." Michanczyk v. Metropolitan Life Ins. Co., No. 3:05CV1903,
2007 WL 926911, at *2 (D. Conn. Mar. 26, 2007).

The defendant has

made no showing as to the nature and extent of the actual burden he
would face in responding to the plaintiffs' requests.

See, e.g.,

In re In-Store Advertising Sec. Lit., 163 F.R.D. 452, 455 (S.D.N.Y.
1995) ("If a party resists production on the basis of claimed undue
burden, it must establish the factual basis for the assertion
through competent evidence.").

In the absence of any showing, the

court cannot sustain the defendant's burdensomeness objection. Nor
are

the

requests

overly

broad.

Moreover,

pursuant

to

Rule

26(a)(1)(A)(ii), the defendant was required to produce or disclose

8

"without

awaiting

a

discovery

request"

all

documents

or

electronically stored information that the party "may use to
support its claims or defenses, unless the use would be solely for
impeachment."

This

obligation

is

ongoing,

and

a

party

must

supplement its initial disclosures when additional information
supporting its claims or defenses comes to its attention. Fed. R.
Civ. P. 26(e). See Pentair Water Treatment (OH) Co. v. Continental
Ins. Co., No. 08 Civ. 3604(BSJ)(JCF), 2009 WL 3817600, at *2
(S.D.N.Y. Nov. 16, 2009) (granting motion to compel document
request that sought any documents related to each affirmative
defense).
26.

Request for production 18 seeks documents the defendant relied

on in responding to the interrogatories.

The defendant objects on

the grounds that the request is overbroad and unduly burdensome.
The objections are not well-founded and are overruled.
unexceptional discovery request.

This is an

See Smith v. Café Asia, 256

F.R.D. 247, 255 (D.D.C. 2009)(plaintiff's request that defendant
identify all documents on which it relied in support of its answer
to interrogatory was not overly burdensome); Chubb Custom Ins. Co.
v. Grange Mut. Cas. Co., No. 2:07–CV–1285, 2009 WL 243034, at *8
(S.D. Ohio Jan. 30, 2009)(granting motion to compel plaintiff to
produce "any and all documents used, relied upon, reviewed by, or
referred to in the preparation of your responses to the First Set
of Interrogatories"); Strauss v. Credit Lyonnais, S.A., 242 F.R.D.
199,

232

(E.D.N.Y.

2007)(ordering

9

plaintiffs

to

identify

and

produce

non-privileged

documents

upon

which

they

relied

in

preparing their interrogatory responses).
27.

Request for production 19 seeks "posts, messages, comments or

blog posts" the defendant made on the Internet from December 2012
to the date of his response.

The defendant objects that the

request is overbroad and unduly burdensome.

The objections are

overruled and the request is granted.
28.

Request for production 20:

The part of the defendant's

response in which he objects on the grounds that there is "no such
thing as a 'partial dose'" and that a "full dose is the volume of
vaccine determined by the doctor" is overruled.

Request for

production 20 is granted.
29.

Request for production 22 seeks documents that support the

defendant's contention that the plaintiffs terminated his former
franchise without good cause. The defendant objects on the grounds
that the request is overbroad and unduly burdensome.
neither.
30.

It is

The request is granted.

Request for production 23:

The part of the defendant's

response in which he objects on the grounds that there is "no such
thing as a 'partial dose'" and that a "full dose is the volume of
vaccine determined by the doctor" is overruled.
production 23 is granted.

Request for

To the extent that the defendant does

not have any responsive documents in his care, custody or control,
he shall so state under oath.

10

Requests for Admission
Fed. R. Civ. P. 36(a)(4) provides:
If a matter is not admitted, the answer must specifically
deny it or state in detail why the answering party cannot
truthfully admit or deny it. A denial must fairly respond
to the substance of the matter; and when good faith
requires that a party qualify an answer or deny only a
part of a matter, the answer must specify the part
admitted and qualify or deny the rest.
Rule 36's function "is to define and limit matters in controversy
between the parties." 8B Wright & Miller, Federal Practice and
Procedure § 2252 (2010).

"The rule is intended to expedite the

trial and to relieve the parties of the cost of proving facts that
will not be disputed at trial, the truth of which is known to the
parties

or

can

be

ascertained

by

reasonable

inquiry."

Id.

"[R]equests for admission are used to establish admission of facts
about which there is no real dispute." 7 Moore's Federal Practice
§ 36.02.

"A denial of a matter on which an admission has been

requested

must

admission.

fairly

meet

the

substance

of

the

requested

If good faith requires that a party qualify its answer

or deny only a part of the requested matter, it must specify so
much of the request as is true and deny only the remainder."

8B

Wright, Miller & Marcus, Federal Practice and Procedure § 2260
(2010).
"If a party fails to admit what is requested under Rule 36 and
if the requesting party later proves . . . the matter to be true,
the requesting party may move that the party who failed to admit
pay the reasonable expenses, including attorney's fees, incurred in
making that proof."

Fed. R. Civ. P. 37(c)(2).
11

30.

Requests for Admission 1 - 10: The defendant's objection or

qualification that a "full dose is the volume of vaccine determined
by the doctor to protect the pet" is overruled.

As discussed

above, in this context, the term "full dose" is defined as the
manufacturer's recommended dose.
amended answer.

The defendant shall serve an

Fed. R. Civ. P. 36(a)(6)("On finding that an

answer does not comply with this rule, the court may order either
that the matter is admitted or that an amended answer be served.")
31.

Request for Admission 11 is withdrawn by the plaintiffs.

32.

Request

for

Admission

12:

The

defendant's

objection

or

qualification that a "full dose is the volume of vaccine determined
by the doctor to protect the pet" is overruled.

The defendant

shall serve an amended answer.
33.

Requests for Admission 13 and 14:

The defendant's objection

or qualification that a "full dose is the volume of vaccine
determined by the doctor to protect the pet" is overruled.

To the

extent that the defendant's response must be qualified because his
practice

changed over

time,

he

must

serve

an

amended

answer

specifying the part of the request admitted and qualifying or
denying the rest.

See 7 Moore's Federal Practice § 36.11 ("When

good faith requires that a party qualify an answer or deny only
part of a matter, the answer must specify the part admitted and
qualify or deny the rest.")
34.

Requests for Admission 15 - 17:

The defendant's objection or

qualification that a "full dose is the volume of vaccine determined

12

by the doctor to protect the pet" is overruled.
answers are nonresponsive.

The defendant's

The defendant shall serve an amended

answer.
35. Requests for Admission 18 - 22:

The defendant's objection or

qualification that a "full dose is the volume of vaccine determined
by the doctor to protect the pet" is overruled.

The defendant

shall serve an amended answer.
36.

Requests

for

Admission

23,

27

and

67:

The

defendant's

objection or clarification that a "full dose is the volume of
vaccine determined by the doctor to protect the pet" is overruled.
The defendant's answers are nonresponsive.

The defendant shall

serve amended answers.
37.

The plaintiffs' motion as to requests for admission 61 and 62

is denied.
admit

if

See Fed. R. Civ. P. 37(c)(2) (sanctions for failure to
later

proved

true)

and

26(e)

(duty

to

supplement

response).
38.

Request

for

Admission

65:

The

defendant's

answer

is

nonresponsive. The defendant shall serve an amended answer without
qualification.
Fees
The plaintiffs seek an award of fees and costs incurred in
making this motion.

The plaintiffs' motion has been granted in

part and denied in part, which permits the court discretion to
apportion reasonable expenses.
"Rule

37(a)(5)(C)

See Fed. R. Civ. P. 37(a)(5)(C).

effectively

13

incorporates

the

substantive

standards of Rule 37(a)(5)(A) . . . that expenses of a discovery
motion may be imposed upon a party ordered to produce discovery
where that party's 'conduct necessitated the motion'" unless the
nondisclosure or objection was substantially justified or other
circumstances make an award of expenses unjust.

Rahman v. Smith &

Wollensky Restaurant Group, No. 06 Civ. 6198(LAK), 2009 WL 2169762,
at *2 n.1 (S.D.N.Y. July 21, 2009).
substantially justified.2

The defendant was not

Nor are there other circumstances that

would make an award of expenses unjust. The plaintiffs' request is
granted.3
Conclusion
For the foregoing reasons, the plaintiffs' motion to compel
(doc. #144) is granted in part and denied in part.

Pursuant to D.

Conn. L. Civ. R. 37(d), the defendant's compliance is due within 14
days of this order.
SO ORDERED at Hartford, Connecticut this 23rd day of January,
2014.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge
2

The defendant's objections were without merit. Similarly, his
opposition to the plaintiffs' brief was not substantially
justified, that is, it did not have a "reasonable basis in law and
fact." 7 Moore's Federal Practice § 37.23[2]. Indeed, his brief
did not even address some of the requests at issue.
3

Counsel are strongly encouraged to come to agreement as to the
amount of fees. If they are unable to, the plaintiffs may submit
an affidavit itemizing any reasonable expenses incurred in filing
the present motion for which they request reimbursement. The
defendant may file an objection within 21 days as to the amount of
the requested award.
14