DEERE et al v. AMERICAN WATER WORKS COMPANY, INC.
Filing
95
ORDER granting in part and denying in part 86 Motion to Compel and for Sanctions. Defendant is ordered to respond to Plaintiff's First Set of Interrogatories as set out above within 14 days of the date of this order. Signed by Magistrate Judge Mark J. Dinsmore on 3/16/2015. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GREGORY J. DEERE,
GINA R. DEERE,
Plaintiffs,
vs.
AMERICAN WATER WORKS COMPANY,
INC.,
Defendant.
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No. 1:14-cv-01077-WTL-MJD
ORDER ON PLAINTIFFS’ MOTION TO COMPEL AND FOR SANCTIONS
This matter comes before the Court on Plaintiffs’ Motion to Compel and for Sanctions.
[Dkt. 86.] For the following reasons, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs’ Motion.
I.
Background
On June 26, 2014, Gregory and Gina Deere (“Plaintiffs”), sued American Water Works
Company, Inc., d/b/a Indiana American Water Co., Inc. (“Defendant” or “American Water”).
[Dkt. 1.] Plaintiffs allege that Defendant was responsible for providing water services on
Plaintiffs’ property, but that Defendant negligently failed to maintain Plaintiffs’ water meter. [Id.
¶¶ 30, 33, 60.] This failure allegedly caused the ground around the water meter to collapse,
which in turn caused injuries to Gregory Deere. [Id. ¶¶ 34, 48, 49.] Plaintiffs now assert claims
for negligence and loss of consortium. [Id. ¶¶ 60-69.]
On September 4, 2014, Defendant filed an “Amended Motion to Dismiss for Lack of
Jurisdiction.” [Dkt. 36.] Defendant asserted two grounds for dismissal: 1) lack of diversity
jurisdiction and 2) the presence of a pending state case involving the same matter. [Id.]
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Defendant’s first argument was based on the premise that “American Water Works
Company” was not the proper entity for Plaintiffs to sue. [Dkt. 37 at 1.] Defendant argued that
American Water was merely a “holding company” that was “not responsible in any way for the
allegations of negligence” in Plaintiffs’ complaint. [Id. at 1-2.] Instead, Defendant maintained
that the proper party was “Indiana American Water Company, Inc.” (“Indiana Water”), which
Defendant alleged was a citizen of Indiana. [Id. at 2.] Because Plaintiffs are also citizens of
Indiana, naming Indiana Water as a Defendant would have eliminated diversity of citizenship,
thereby depriving this Court of jurisdiction. [See id. at 2.]
Defendant’s second argument for dismissal was based on Plaintiffs’ August 5, 2014 filing
of a state court action against Indiana Water in the Tippecanoe County Circuit Court. [Id. at 3.]
Defendant claimed that the allegations in the state case were substantially identical to the
allegations in Plaintiffs’ complaint in this case, such that “there is no basis for this court to
exercise or maintain jurisdiction over this cause.” [Id.]
On September 29, 2014, Defendant filed a “Second Amended Motion to Dismiss for
Lack of Jurisdiction.” [Dkt. 45.] This time, Defendant asserted that the Court should dismiss the
case under Fed. R. Civ. P. 12(b)(7) because Plaintiffs had failed to join a party—Indiana
Water—as required by Rule 19. [Id.] Defendant withdrew its first “Amended Motion to Dismiss
for lack of Jurisdiction,” [id.], but the Second Amended Motion to Dismiss remains pending.
On November 21, 2014, Plaintiffs served their First Set of Interrogatories on Defendant.
[See Dkt. 86 ¶ 1.] Defendant’s responses were due on December 22, 2014, see Fed. R. Civ. P.
33(b)(2), but Defendant did not respond by that date. [See Dkt. 86 ¶ 1.] On December 29, 2014,
Defendant then filed a motion for an extension of time to respond. [Dkt. 77.] The Court granted
that motion and gave Defendant until January 20, 2015 to respond. [Dkt. 79.]
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Instead of responding, Defendant on January 20, 2015 filed a motion to stay discovery.
[Dkt. 82.] One week later, the Court denied that motion, [Dkt. 83], and the next day, the parties
conferred before the Court to try to resolve their dispute. [Dkt 84.] They were unable to do so.
[Id.] The Court accordingly ordered Defendant to serve its responses to Plaintiffs’ interrogatories
by January 29, 2015 and authorized Plaintiffs to file a motion to compel if the responses were not
served by that time. [Dkt. 84.]
Defendant met the January 29 deadline, [see Dkt. 85], but Plaintiffs considered
Defendant’s responses to be “evasive and incomplete.” [Dkt. 86 ¶ 10.] Plaintiffs conferred with
Defendant to try to resolve this issue, but the parties were unable to reach an agreement, and on
February 10, 2015, Plaintiffs filed the currently pending Motion to Compel and for Sanctions.
[Dkt. 86.] Plaintiffs ask the Court to 1) compel Defendant to respond to interrogatories two
through twenty-five in Plaintiffs’ First Set of Interrogatories; and 2) award Plaintiffs their
attorney’s fees and enter sanctions against Defendant for their alleged failure to comply with the
Court’s orders. [Id. at 4.] On March 12, 2015, the Court held a hearing to address Plaintiffs’
motion.
II.
Discussion
The Court first considers Plaintiffs’ motion to compel and then considers Plaintiffs’
request for attorney’s fees and sanctions.
A. Motion to Compel
A party seeking discovery may move “may move for an order compelling an answer” to
an interrogatory if the party to whom the interrogatory is directed “fails to answer[.]” Fed. R.
Civ. P. 37(a)(3)(B). For the purposes of such motions, an “evasive or incomplete” answer is
treated as a failure to answer. Fed. R. Civ. P. 37(a)(4). Plaintiffs in this case contend that
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Defendant’s answers to interrogatories two through twenty-five were in fact “evasive or
incomplete,” such that the Court may appropriately order a more extensive response. [Dkt. 87 at
14-15.]
Plaintiffs’ main argument is that Defendant’s “purported responses were not its own.”
[Id. at 15.] Instead, Defendant responded to each interrogatory by stating “[a]ll information
[American Water] has regarding the incident comes from [Indiana Water.] [Indiana Water] is a
wholly-owned subsidiary corporation of [American Water.] [American Water] provides herewith
the text of the answers to these identical interrogatories provided by [Indiana Water] on January
16, 2015, in Gregory and Gina Deere v. Indiana American Water Company, Inc., Tippecanoe
County Circuit Court, Cause No. 79C01-1408-CT-00020” (hereinafter the “Qualifying
Paragraph”). [See Dkt. 87-3 (Def.’s Resps. to Pls.’ Interrogs.).] Defendant then reproduced the
response that its subsidiary, Indiana Water, had provided for each of Plaintiffs’ interrogatories.
[See id.]
Plaintiffs assert that these answers are insufficient because they “fail to indicate what
information Defendant actually has itself.” [Dkt. 87 at 15.] They may indicate what Indiana
Water knew, and they may indicate that all of American Water’s information did in fact come
from Indiana Water, but Plaintiffs believe the answers do not unequivocally establish the
knowledge that American Water had. [See id.] Plaintiffs therefore contend that the responses
“unfairly inhibit Plaintiffs from establishing their case.” [Id.] Whether this argument has any
merit depends on the specific interrogatory at issue, and the Court will thus address Plaintiffs’
contention when ruling on each interrogatory.
In addition to the Qualifying Paragraph, Defendant’s answers to Plaintiffs’ interrogatories
included a “general objection” that the interrogatories were “improper given the pending motion
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to dismiss.” [Dkt. 87-3.] Defendant also objected “on grounds of lack of jurisdiction, improper
venue and that it is not the proper party for Plaintiffs’ claims.” [Id.]
These objections are not appropriate. As an initial matter, such general objections are
entitled to little if any weight. See, e.g., Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D.
370, 375 (S.D. Ind. 2009) (“‘[G]eneral objections’ made without elaboration, whether placed in a
separate section or repeated by rote in response to each requested category, are not ‘objections’
at all—and will not be considered.”). In addition, Defendant’s asserted bases for the objections
are not proper reasons for refusing to answer discovery requests: the Court has already denied
Defendant’s motion to stay discovery pending resolution of its motion to dismiss, [see Dkt. 83],
and any issues regarding jurisdiction, venue, or proper joinder of parties will be addressed when
the Court rules on that motion—not when addressing Plaintiffs’ discovery requests. Finally,
Defendant acknowledged at the hearing that it had not withheld any information from its
responses on the basis of its general objections. [Motion to Compel Hr’g, March 12, 2015 at
9:00.] It would therefore be meaningless to sustain these objections, and the Court accordingly
OVERRULES Defendant’s “general objection.”
Finally, Defendant’s responses to Plaintiffs’ interrogatories incorporated numerous
objections that Indiana Water had asserted in its response to Plaintiffs’ interrogatories in
Plaintiffs’ state court case. [See, e.g., Dkt. 87-3 at 5, 9, 14.] The party objecting to a discovery
request bears the burden to show why a particular discovery request is improper. Cunningham v.
Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). Further, that party must show “with
specificity” that the request is inappropriate. Id. “[G]eneral assertions” of hardship will not
suffice, Schaap v. Executive Indus., Inc., 130 F.R.D. 384, 387 (N.D. Ill. 1990), nor will
“reflexive invocation” of the “often abused litany that the requested discovery is vague,
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ambiguous, overly broad, unduly burdensome or [irrelevant.]” Cunningham, 255 F.R.D. at 478
(citation omitted). With these principles in mind, the Court will evaluate the propriety
Defendant’s objections with respect to each specific interrogatory at issue.
B. Plaintiffs’ Specific Interrogatories
Interrogatory Number Two states:
State the name, address, and telephone number of each individual: (a) who
witnessed the INCIDENT[ 1] or the events occurring immediately before or after
the INCIDENT; (b) who heard any statements made about the INCIDENT by any
individual at the scene; and (c) who YOU OR ANYONE ACTING ON YOUR
BEHALF claim has knowledge of the INCIDENT (except for expert witnesses
covered by the Federal Rules of Civil Procedure).
[Dkt. 87-3 at 3.] Defendant answered with the Qualifying Paragraph and then reproduced
the response from Indiana Water: “Besides Gregory Deere, Defendant is not aware of any
witnesses to this incident.” [Id.]
As described above, Plaintiffs assert that this response was evasive and
incomplete, but the Court does not agree. The interrogatory asks for facts known to
American Water or to anyone acting on behalf of American Water. By including the
Qualifying Paragraph, American Water indicated that “all” of its knowledge about the
incident came from Indiana Water, [see id.], and by incorporating the response from
Indiana Water, American Water relayed that knowledge. In doing so, American Water
provided a complete answer to the interrogatory. Plaintiffs may not be pleased with the
relatively brief response, but if “all” of American Water’s information came from Indiana
Water, and if American Water already included the response from Indiana Water, then
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Plaintiffs defined the term “INCIDENT” as follows: “INCIDENT includes the circumstances and events
surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or
proceeding.” [Dkt. 87-2 at 2.] They also defined “YOU OR ANYONE ACTING ON YOUR BEHALF” as including
“you, your agents, your employees, your insurance companies, their agents, their employees, your attorneys, your
accountants, your investigators, and anyone else acting on your behalf.” [Id.]
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Defendant has no more information to provide. The Court therefore DENIES Plaintiffs’
motion with respect to Interrogatory Number Two.
Interrogatory Number Three states:
For each of your employees physically present at the time and place of the
INCIDENT and those employees who were physically present on the day of the
INCIDENT, please state: (a) his or her name, address and telephone number; (b)
job title as of date of INCIDENT; (c) whether she or he was on duty at the time of
the INCIDENT; and (d) the job or function she or he was performing at the time
of the INCIDENT.
[Dkt. 87-3 at 4.] Defendant answered with the Qualifying Paragraph and Indiana Water’s
response: “There were no employees of [Indiana Water] present at the time this incident
occurred. After the incident occurred, employees, Roy Staley and Shannon Gaylord reported to
the location.” [Id. at 4-5.]
This response is insufficient. Plaintiffs’ interrogatory is directed at American Water and
asks whether American Water had any employees present at the scene of the incident. It is thus
non-responsive for Defendant to indicate that Indiana Water had employees who reported to the
location. Defendant’s answer may well be that it had no employees at the scene of the alleged
incident, but if that is the case, Defendant must say so. The Court accordingly GRANTS
Plaintiffs’ motion to compel with respect to this interrogatory. Defendant shall provide a
complete and unequivocal response within fourteen (14) days of the date of this order.
Interrogatory Number Four states:
Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any
individual concerning the INCIDENT? If so, for each individual state: (a) the
name, address, and telephone number of the individual interviewed; (b) the date
of the interview; and (c) the name, address, and telephone number of the
PERSON who conducted the interview.
[Dkt. 87-3 at 5.] Defendant responded with the Qualifying Paragraph and then provided
Indiana Water’s response. [Id. at 5-6.] That response, in turn, objected to the interrogatory on the
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grounds that it called for information protected by the insurer-insured privilege and the attorneyclient privilege. [Id. at 6 (citing Richey v. Chappell, 594 N.E.2d 443, 446 (Ind. 1992)).] It then
stated that two Indiana Water employees had briefly spoken with Gregory Deere. [Id.]
As with Defendant’s answer to Interrogatory Number Three, the answer to this
interrogatory is non-responsive: Plaintiffs asked if American Water had interviewed anyone; the
response that two employees of Indiana Water had spoken with Gregory Deere thus does not
answer the question asked. Further, Defendant’s objections are baseless: the attorney-client
privilege and the insurer-insured privilege protect the substance of communications, not the sort
of factual details requested in the interrogatory. See, e.g., Kodish v. Oakbrook Terrace Fire Prot.
Dist., 235 F.R.D. 447, 453 (N.D. Ill. 2006) (“Communications from an attorney to a client are
privileged if the statements reveal, directly or indirectly, the substance of a confidential
communication by the client.”); Richey, 594 N.E.2d at 446 (emphasis added) (“[P]rivilege
attaches to an insured’s statement given to the insurer for possible use by the insured’s
attorney.”). The Court accordingly OVERRULES Defendant’s objections and orders Defendant
to provide a complete and unequivocal response to Plaintiffs’ Interrogatory Number Four within
fourteen (14) days of the date of this order.
Interrogatory Number Five states:
Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or
recorded statement from any individual concerning the INCIDENT? If so, for
each statement state: (a) the name, address, and telephone number of the
individual from whom the statement was obtained; (b) the name, address, and
telephone number of the individual who obtained the statement; (c) the date the
statement was obtained; and (d) the name, address, and telephone number of each
PERSON who has the original statement or a copy.
[Dkt. 87-3 at 6.] Defendant responded with the Qualifying Paragraph and the same objections it
asserted in response to Interrogatory Number Four. [Id. at 7.] For the same reasons as described
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above, the Court OVERRULES these objections. Defendant then included Indiana Water’s
response to this question, but, again, this response is not sufficient. American Water must state
whether it has obtained a written or recorded statement and cannot simply rely on whether
Indiana Water has obtained such a statement. The Court thus GRANTS Plaintiffs’ motion with
respect to this interrogatory and orders Defendant to provide a complete and unequivocal
response within fourteen (14) days of the date of this order.
Interrogatory Number Six states:
Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any
photographs, films, or videotapes depicting any place, object, or individual
concerning the INCIDENT or Plaintiff GREGORY DEERE’s injuries? If so,
state: (a) the number of photographs or feet of film or videotape; (b) the places,
objects, or persons photographed, filmed, or videotaped; (c) the date the
photographs, films, or videotapes were taken; (d) the name, address, and
telephone number of the individual taking the photographs, films, or videotapes;
and (e) the name, address, and telephone number of each PERSON who has the
original or a copy.
[Dkt. 87-3 at 7-8.] Defendant responded with the Qualifying Paragraph and then reproduced
Indiana Water’s response from the state court case. [Id.]
As with Interrogatory Number Two, Defendant’s response in this instance is sufficient.
The integratory asks whether Defendant has certain knowledge. By stating that “all” of
Defendant’s knowledge comes from Indiana Water and by providing Indiana Water’s response,
Defendant has divulged all responsive knowledge it has with regard to this interrogatory. As a
result, Defendant has no more information to provide, and the Court DENIES Plaintiffs’ motion
to compel an additional response to this interrogatory.
Interrogatory Number Seven states:
Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any diagram,
reproduction, or model of any place or thing (except for items developed by
expert witnesses covered by the Federal Rules of Civil Procedure) concerning the
INCIDENT? If so, for each item state: (a) the type (i.e., diagram, reproduction, or
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model); (b) the subject matter; and (c) the name, address, and telephone number
of each PERSON who has it.
[Dkt. 87-3 at 9.] Defendant again responded with the Qualifying Paragraph and Indiana Water’s
response, and again, this response is sufficient. Plaintiffs asked for Defendant’s knowledge, and
Defendant divulged that knowledge. No further response is necessary, and Plaintiffs’ motion
with respect to Interrogatory Number Seven is DENIED.
Interrogatory Number Eight states:
Was a report made by any PERSON concerning the INCIDENT? If so state: (a)
the name, title, identification number, and employer of the PERSON who made
the report; (b) the date and type of report made; and (c) the name, address, and
telephone number of the PERSON for whom the report was made.
[Dkt. 87-3 at 10.] Defendant responded with the Qualifying Paragraph and then gave Indiana
Water’s response. [Id. at 10-11.] That response, in turn, objected on the basis of attorney-client
and work-product privilege. [Id. at 10.]
At the hearing, Defendant stated that no information had been withheld on the basis of
the objections, [Hr’g at 9:27], and the Court will thus show those objections as withdrawn. In
addition, Defendant acknowledged that Indiana Water’s response incorrectly named the
employer of the person identified in the response. [Hr’g at 9:28.] Defendant agreed to correct the
response, and the Court thus orders Defendant to do so within fourteen (14) days of the date of
this order. Finally, the Court DENIES Plaintiffs’ motion to the extent that it seeks to compel any
additional response to this interrogatory. As with Interrogatories Two, Six, and Seven,
Interrogatory Number Eight asks only for Defendant’s knowledge, and Defendant’s current
response is sufficient.
Interrogatory Number Nine states:
Have YOU OR ANYONE ACTING ON YOUR BEHALF inspected the scene of
the INCIDENT? If so, for each inspection state: (a) the name, address, and
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telephone number of the individual making the inspection; and (b) the date of the
inspection.
[Dkt. 87-3 at 11.] Defendant relied on Indiana Water’s answer from the state court case,
[Dkt. 87-3 at 11-12], but this is not appropriate: The interrogatory asks whether American
Water has inspected the scene of the incident, and Defendant therefore cannot simply
state that Indiana Water has done so. The Court thus GRANTS Plaintiffs’ motion to
compel with respect to this interrogatory and orders Defendant to provide a complete and
unequivocal response within fourteen (14) days of the date of this order.
Interrogatory Number Ten states:
Did YOU OR ANYONE ACTING ON YOUR BEHALF cause an investigation
to be conducted at any time in connection with the subject matter of this action? If
so, please state for each such investigation: (a) the date of each investigation; (b)
where the investigation was made; (c) the names of the PERSONS conducting
each such investigation; (d) the names and capacities of all PERSONS present or
contacted at any time during the investigation; (e) whether any written notes or
memoranda of any kind were made in connection with the investigation; (f)
whether a report of the investigation was made; (g) the date of each such report;
(h) the name of the PERSON making each such report; (i) whether each such
report was oral or in writing; (j) the present location of each such written report;
and (k) the name and address of the PERSON having custody of each written
report.
[Dkt. 87-3 at 12.] Defendant relied on Indiana Water’s previous answer, [Dkt. 87-3 at 1213], but this is not sufficient. As with the previous interrogatory, this interrogatory asks
whether American Water has taken a certain action, and Defendant cannot simply state
that Indiana Water has taken that action.
In addition, Defendant objected that a portion of the requested information was
protected by the insurer-insured or attorney-client privilege. [Dkt. 87-3 at 13.] Defendant,
however, did not explain this objection and did not provide any basis for it. [See id.]
Defendant thus failed to satisfy its burden to demonstrate “with specificity” that
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Plaintiffs’ request was improper. See Cunningham, 255 F.R.D. at 478; see also Acosta v.
Target Corp., 281 F.R.D. 314, 321 (N.D. Ill. 2012) (“Properly claiming privilege is just
the first step. A party asserting attorney-client privilege has the burden of establishing all
of its essential elements[.]”). The Court thus OVERRULES these objections and
GRANTS Plaintiffs’ motion to compel with respect to this interrogatory. Defendant is
ordered to provide a complete and unequivocal response within fourteen (14) days of the
date of this order.
Interrogatory Number Eleven states:
Please state whether YOU OR ANYONE ACTING ON YOUR BEHALF has
reviewed or read any memoranda concerning any investigation of Plaintiff
GREGORY DEERE’s injury, which was written or compiled by someone not
then acting on your behalf. If so, for each such memorandum please state: (a) the
name, address, capacity, and employer of each PERSON who furnished you with
a copy thereof; (b) the name, address, capacity, and employer of each PERSON
who wrote or compiled it; (c) the date or dates upon which it was written or
compiled; (d) the name and address of each PERSON for whose benefit it was
originally written or compiled; and (e) whether a copy thereof now rests in your
custody and control, or in the custody or control of ANYONE ACTING ON
YOUR BEHALF
[Dkt. 87-3 at 13-14.] Defendant relied on Indiana Water’s answer from the state court case, [id.
at 14-15], but this is insufficient. The interrogatory asks whether American Water has read any
memoranda, and Defendant thus cannot rely on what a different party may have read.
In addition, Defendant incorporated Indiana Water’s objections to this interrogatory. [Id.
at 15.] These objections asserted that the requested information was protected by the attorneyclient or work-product privilege, [id.], but these objections are not sound: the interrogatory seeks
only factual information, not the sort of legal advice or mental impressions that would fall within
either privilege. See, e.g., E.E.O.C. v. Jewel Food Stores, Inc., 231 F.R.D. 343, 346 (N.D. Ill.
2005) (“[T]he work product doctrine . . . does not protect factual information that a lawyer
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obtains when investigating a case.”); Pippenger v. Gruppe, 883 F. Supp. 1201, 1208 (S.D. Ind.
1994) (“It is beyond question that the attorney-client privilege does not preclude the discovery of
factual information.”). The objections are therefore OVERRULED, and the Court GRANTS
Plaintiffs’ motion to compel with respect to this interrogatory. Defendant shall provide a
complete and unequivocal response within fourteen (14) days of the date of this order.
Interrogatory Number Twelve states:
Please state whether YOU OR ANYONE ACTING ON YOUR BEHALF has
consulted any experts concerning the facts of this case. If so, for each expert
please state: (a) name, address, occupation and capacity; (b) whether the expert
furnished an oral or written report of findings or opinions concerning the matters
for which the consultation was obtained; (c) whether you intend to call the expert
as an expert witness at trial; (d) the substance of the findings or opinions
respecting this action; and (e) the name, date, publisher, and author of any
scientific technical, or professional text, treatise, journal, or similar publication
upon which such expert relied to form the findings or opinions.
[Dkt. 87-3 at 15-16.] Defendant relied on Indiana Water’s answer from the state court case, but
for the reasons described above, this is improper: the question asks whether American Water has
consulted any experts, and so American Water must answer on its own behalf. In addition, the
answer from Indiana Water included an objection on the grounds that disclosure was precluded
by Indiana Trial Rule 26. [Id. at 16.] Reliance on state trial rules is improper in answering
interrogatories served in Plaintiffs’ federal case, see, e.g., Brauer v. Stryker Corp., No. 2:13-CV442-JMS-WGH, 2014 WL 29069, at *3 (S.D. Ind. Jan. 3, 2014) (quoting Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 427 (1996)) (“[F]ederal courts sitting in diversity apply state
substantive law and federal procedural law.”), and to the extent that Defendant intends to
continue asserting such an objection, it must refer to the Federal Rules of Civil Procedure. The
Court thus OVERRULES the current objection; GRANTS Plaintiffs’ motion with respect to
this interrogatory; and orders Defendant to completely and unequivocally respond to this
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interrogatory, to include the assertion of any appropriate objections, within fourteen (14) days of
the date of this order.
Interrogatory Number Thirteen states:
Do YOU OR ANYONE ACTING ON YOUR BEHALF have any information
that Plaintiffs made any admission or declaration against interest that in any way
would tend to support your version of this case? If so, state: (a) the time and place
when such admission or declaration was made; (b) the substance of the admission
or declaration; and (c) the names and addresses of all PERSONS in whose
presence such admission or declaration was made.
[Dkt. 87-3 at 17.] Defendant responded with the Qualifying Paragraph and then included a
response from Indiana Water that objected on the grounds that the interrogatory was a
“contention request.” [See id. at 17-18.] At the hearing, Defendant withdrew this objection and
stated that, regardless of the objection, the response from Indiana Water was already a complete
and unequivocal response. [Hr’g at 9:37.] Plaintiffs then argued that the response was
nonetheless evasive, but this argument is baseless: Plaintiffs asked what information American
Water had, and American Water 1) stated that all its information came from Indiana Water and
2) provided the information that Indiana Water had. Defendant therefore cannot provide any
additional information, and the Court DENIES Plaintiffs’ motion to compel any further response
to this interrogatory.
Interrogatory Number Fourteen states:
If you contend that any other person, business entity, or government entity is or
may be responsible in any way for Plaintiff GREGORY DEERE’s injuries, please
state all facts on which you rely in making this contention, as well as: (a) the
names, addresses, and telephone numbers of all persons who have knowledge of
the facts; and (b) identify all writings and other tangible things that support your
contention and state the name, address, and telephone number of the person who
has each writing or thing.
[Dkt. 87-3 at 18.] Defendant relied on Indiana Water’s answer, but this is not an appropriate
response to this interrogatory. Plaintiffs have asked whether American Water contends that
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anyone else is responsible for Plaintiffs’ injuries, and it thus does not suffice to explain whom
Indiana Water may try to hold responsible. American Water may very well assert that an entity
other than itself is responsible for Plaintiffs’ injuries, such that American Water must provide an
additional response to this interrogatory.
Defendant also incorporated Indiana Water’s objection that the interrogatory is a
“contention request.” [Dkt. 87-3 at 19.] The Court OVERRULES this objection. The Federal
Rules expressly state that an interrogatory is not objectionable “merely because it asks for an
opinion or contention that relates to fact or the application of law to fact.” Fed. R. Civ. P.
33(a)(2). Moreover, the interrogatory at issue will help narrow the issues in this litigation by
establishing which of many potential theories Defendant may assert to try to avoid liability. The
interrogatory is thus appropriate, see, e.g., Commerce Bank, N.A. v. Widger, No. 06-CV-1103,
2008 WL 630611, at *1 (C.D. Ill. Mar. 5, 2008) (noting that contention interrogatories “serve a
proper purpose of narrowing the issues for litigation”), and the objection is OVERRULED. The
Court GRANTS Plaintiffs’ motion with respect to this interrogatory and orders Defendant to
provide a complete and unequivocal response within fourteen (14) days of the date of this order.
Interrogatory Number Fifteen states:
With regard to any complaint(s) against the Defendants [sic] within the past five
years regarding water meters allegedly causing damages in Tippecanoe County of
Indiana, please state: (a) the date of the complaint; (b) the nature of the situation
complained of; and (c) the name and address of the person so complaining.
[Dkt. 87-3 at 19.] Defendant relied on the Qualifying Paragraph and Indiana Water’s response,
but this was not proper. The interrogatory specifically asks for complaints against the defendant
in this case, and American Water must thus answer with respect to any complaints against it.
Defendant also incorporated Indiana Water’s objection that the interrogatory did not seek
relevant information. [Dkt. 87-3 at 20.] This objection, however, was vague and unsupported,
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[see id.], and Defendant therefore did not satisfy its burden to show “with specificity” why
Plaintiffs’ request was improper. See Cunningham, 255 F.R.D. at 478. The Court thus
OVERRULES this objection; GRANTS Plaintiffs’ motion with respect to this interrogatory;
and orders Defendant to completely and unequivocally respond to this interrogatory within
fourteen (14) days of the date of this order.
Interrogatory Number Sixteen states:
If you were aware, before the filing of the complaint in this action, that Plaintiff
GREGORY DEERE alleged he fell and was injured at the location alleged in the
complaint on August 6, 2012, on or around 1:00 PM EST, state: (a) the name,
address and telephone number of the person from whom you received notice; (b)
date, time, and place you received notice; and (c) whether the notice was written
or oral, and, if written, the name and address of the person who now has custody
of it.
[Dkt. 87-3 at 20.] Defendant responded with the Qualifying Paragraph and then reproduced
Indiana Water’s response. [Id. at 20-21.] This was an appropriate answer: Plaintiffs asked for
knowledge, and Defendant 1) responded that all its knowledge came from Indiana Water and 2)
produced the information that Indiana Water had. No further information remains to be
produced, and the Court thus DENIES Plaintiffs’ motion with respect to this interrogatory.
Interrogatory Number Seventeen states:
If you contend that any person or entity other than you owned and/or controlled
the premises on which Plaintiff GREGORY DEERE alleges he was injured at the
time of his injury, state each and every fact on which you base the contention and
identify each and every writing that supports the contention.
[Dkt. 87-3 at 21.] Defendant relied on Indiana Water’s response, [id. at 21-22], but this
was improper. The interrogatory asks for American Water’s contention, such that
Defendant cannot state only what its subsidiary contends. The Court therefore GRANTS
Plaintiffs’ motion with respect to this interrogatory and orders Defendant to provide a
complete and unequivocal response within fourteen (14) days of the date of this order.
16
Interrogatory Number Eighteen states:
If you contend that any person or entity other than you and your employees and
agents was responsible for the cleaning and maintenance of the premises on which
Plaintiff GREGORY DEERE alleges he was injured at the time of his injury, state
each and every fact on which you base your contention and identify each and
every writing that supports the contention.
[Dkt. 87-3 at 22.] Defendant relied on Indiana Water’s response, [id. at 22-23], but for the
same reasons as described in regard to Interrogatory Number Seventeen, this was
inappropriate. Defendant also incorporated Indiana Water’s objection that this was a
“contention request,” [id. at 24], but for the same reasons as described in regard to the
objection to Interrogatory Number Fourteen, this objection is OVERRULED. The Court
therefore GRANTS Plaintiffs’ motion with respect to this interrogatory and orders
Defendant to provide a complete and unequivocal response within fourteen (14) days of
the date of this order.
Interrogatory Number Nineteen states:
Identify, with sufficient particularity to allow Plaintiffs to frame a notice to
produce, all procedure manuals, letters, memos, instruction manuals and other
writings that pertain to or concern in any way the servicing and maintenance of
the premises where Plaintiff GREGORY DEERE alleges he was injured.
[Dkt. 87-3 at 23.] Defendant responded with the Qualifying Paragraph and Indiana
Water’s response from the state court case, but this was not proper. The Qualifying
Paragraph states that all information American Water has “regarding the incident” comes
from Indiana Water, but this interrogatory asks for information about the existence of
documents in the possession of American Water relating to service and maintenance of
the water meter. Defendant must therefore answer the question itself, rather than relying
on Indiana Water’s response, and the Court accordingly GRANTS Plaintiffs’ motion
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with respect to this interrogatory. Defendant shall provide a complete and unequivocal
response within fourteen (14) days of the date of this order.
Interrogatory Number Twenty states:
Of what type of material was the water meter and water meter cover made at the
spot Plaintiff GREGORY DEERE alleges he was injured?
[Dkt. 87-3 at 24.] Defendant relied on Indiana Water’s response, which stated “[t]he cover was
cast iron and the meter was made of brass and plastic.” [Id. at 25.] This is a complete response to
the question asked, and the Court thus DENIES Plaintiffs’ motion with respect to this
interrogatory.
Interrogatory Number Twenty-One states:
When is the last time the area, water meter, and water meter cover were
maintained/serviced?
[Dkt. 87-3 at 25.] Defendant relied on Indiana Water’s response, which included an objection
that the interrogatory was “vague and not limited in time.” [Id.] The answer then stated: “Subject
to and without waiving said objections the meter is read monthly. Defendant states the area was
serviced on August 9, 2012.” [Id. at 25-26.]
At the hearing, Defendant explained that its objection was based on uncertainty about
whether Plaintiff was seeking the last time the water meter was maintained or serviced as of the
date the interrogatories were served or the last time the water meter was maintained or serviced
prior to the incident. [Hr’g at 9:49.] Plaintiffs clarified that they sought the latter information,
[Hr’g at 9:50], and Plaintiffs later explained that the “area” in the interrogatory referred to the
ground immediately surrounding the water meter. [Hr’g at 9:57.] The Court will thus modify this
interrogatory to read:
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When was the last time prior to the Incident that 1) the water meter; 2) the water meter
cover; and 3) the area within a 20-foot radius of the water meter were
maintained/serviced?
Defendant shall provide a complete and unequivocal response to the interrogatory as modified
above within fourteen (14) days of the date of this order.
Interrogatory Twenty-Two states:
With what equipment was the area, water meter, and water meter cover
maintained/serviced where the incident[ 2] allegedly occurred?
[Dkt. 87-3 at 26.] Defendant incorporated Indiana Water’s answer, which stated
“Defendant does not understand this question as written.” [Id.] At the hearing, Plaintiffs
explained that it was their understanding that the water meter at issue was read
electronically and that the water meter may have been serviced or maintained either
remotely (through electronic means) or manually (by a person physically interacting with
the water meter). [Hr’g at 9:56.] The Court will thus modify this interrogatory as follows:
With what equipment were 1) the water meter; 2) the water meter cover; and 3)
the area within a 20-foot radius of the water meter where the Incident allegedly
occurred maintained/serviced, by a human being or otherwise, on the date of the
last maintenance/service prior to the Incident?
Defendant shall provide a complete and unequivocal response to the interrogatory as modified
above within fourteen (14) days of the date of this order.
Interrogatory Twenty-Three states:
How frequently was the area, water meter, and water meter cover
maintained/serviced where the incident allegedly occurred?
[Dkt. 87-3 at 26.] Defendant incorporated Indiana Water’s answer, which stated “Defendant
objects to this Interrogatory to the extent it is vague and not limited in time. Subject to and
2
Plaintiffs’ later interrogatories abandoned the earlier practice of capitalizing defined terms such as “incident.” [See
Dkt. 87-3 at 26.]
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without waiving said objections, the meter is read monthly.” [Id. at 27.] The Court agrees with
Defendant’s assessment and will modify the interrogatory to more clearly define its geographic
and temporal scope. This interrogatory will thus read:
How frequently were 1) the water meter; 2) the water meter cover; and 3) the area
within a 20-foot radius of the water meter where the Incident allegedly occurred
maintained and/or serviced during the five-year period preceding the Incident?
The Court orders Defendant to provide a complete and unequivocal response to this interrogatory
as modified within fourteen (14) days of the date of this order.
Interrogatory Twenty-Four states:
If the area, water meter, and water meter cover where the alleged incident
occurred had been cleaned in the year before the incident, state: (a) the date(s) and
time(s) it was serviced/maintained; (b) the name, address, and telephone number
of each person who performed the service/maintenance; (c) the type of
service/maintenance equipment used; (d) the name of each service/maintenance
equipment used; and (e) the reason it was maintained/serviced.
[Dkt. 87-3 at 27-28.] Defendant answered by incorporating Indiana Water’s response, which
stated: “On a monthly basis, this meter is read electronically. When necessary, leaves and debris
are wiped away to make sure a proper read takes place from the touchpad.” [Id. at 28.] This
answer is not responsive to the question asked. The interrogatory asks when the water meter was
cleaned and requests specific dates of such cleanings. Responding generally that some cleanings
may occur under certain circumstances does not answer this question. At the same time,
however, the interrogatory as currently written is somewhat unclear regarding the “area” within
the scope of the interrogatory. The Court will thus rewrite the interrogatory as follows:
If 1) the water meter; 2) the water meter cover; and/or 3) the area within a 20-foot
radius of the water meter where the Incident allegedly occurred had been cleaned
in the year before the Incident, state: (a) the date(s) and time(s) it was serviced
and/or maintained; (b) the name, address, and telephone number of each person
who performed the service and/or maintenance; (c) the type of service and/or
maintenance equipment used; (d) the name of each service and/or maintenance
equipment used; and (e) the reason it was maintained and/or serviced.
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Defendant shall provide a complete and unequivocal response to this interrogatory as modified
within fourteen (14) days of the date of this order.
Interrogatory Twenty-Five states:
Identify, with sufficient particularity to allow Plaintiffs to frame a notice to
produce, any writing, including sweep sheets and maintenance logs, that support
your answer to Interrogatory No. 21 through Interrogatory No. 24. If said writings
contain abbreviations or initials, define the abbreviations and state the full name,
address and telephone number of the person whose name is signified by the
initials.
[Dkt. 87-3 at 28.] Defendant incorporated Indiana Water’s response, which stated: “There are no
maintenance logs. Meter reading logs are created to show dates a meter [is] read.” [Id. at 29.] At
the hearing, Plaintiffs explained that they were dissatisfied with this response because it came
from Indiana Water rather than American Water, [Hr’g at 10:11], but added that as long as there
were in fact no maintenance logs or sweep sheets, then they were content with the answer. [Hr’g
at 10:11.] Plaintiffs have not provided any evidence that Defendant’s assertion about the absence
of such logs is erroneous, and the Court accordingly DENIES Plaintiffs’ motion to compel with
respect to this interrogatory.
C. Fees and Sanctions
The Federal Rules allow for an award of fees and expenses when a court rules on a
motion to compel. Fed. R. Civ. P. 37(a)(5). Plaintiffs in this case thus ask the Court to issue an
order “requiring Defendant to pay reasonable expenses to Plaintiffs incurred by Plaintiffs in
making this motion, including attorney’s fees.” [Dkt. 77 at 13.] The Court, however, has granted
Plaintiffs’ motion in part and denied Plaintiffs’ motion in part, and the Court in such
circumstances has significant discretion with regard to the award of any fees. See Fed. R. Civ. P.
37(a)(5)(C) (“If the motion is granted in part and denied in part, the court . . . may, after giving
an opportunity to be heard, apportion the reasonable expenses for the motion.”). Additionally,
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the Court in this case has accepted and rejected portions of both parties’ arguments. Contrary to
Plaintiffs’ assertions, the Court does not find Defendant’s responses to be evasive. American
Water has consistently asserted that the water meter at issue is owned and maintained by its
wholly-owned subsidiary Indiana Water, and that American Water has no information with
regard thereto. Based upon the representations of Defendant’s counsel, the Court expects that
Defendant’s revised responses provided pursuant to this order will, in fact, demonstrate that
American Water possesses no relevant and responsive information. In light of that, any victory
achieved by Plaintiffs with respect to the instant motion will be pyrrhic at best, and it would be
ludicrous to penalize Defendant’s effort to be over-inclusive and more forthcoming than required
in its responses. However, it would likewise be improper to penalize Plaintiffs for seeking a
precise answer to their interrogatories from the particular defendant in this case, even if that
response ultimately provides no useful information. The Court thus sees no basis for ordering
either party to pay the other’s costs and fees, and each party shall therefore pay its own expenses
related to the instant motion.
In addition to the fees and expenses authorized under Rule 37(a)(5), Plaintiffs seek
imposition of sanctions pursuant to Rule 37(b)(2) and Rule 37(d). [See Dkt. 87 at 7-8.] The first
subsection, Rule 37(b)(2), authorizes the Court to enter sanctions against a party who “fails to
obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). The second
subsection, Rule 37(d), authorizes the Court to enter sanctions against a party who “fails to serve
its answers, objections, or written response” to interrogatories. Fed. R. Civ. P. 37(d)(1)(A)(ii).
Regardless of the subsection at issue, the Court has “broad discretion” in deciding whether to
impose discovery sanctions. Park v. City of Chicago, 297 F.3d 606, 614 (7th Cir. 2002). The
Court need not select the “least drastic” or “most reasonable” sanction, but any sanction imposed
22
must be “proportionate to the circumstances surrounding a party's failure to comply with
discovery rules.” Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 672 (7th Cir. 1996).
Plaintiffs contend that Rule 37(b)(2) is applicable in this case because Defendant did not
comply with the Court’s order requiring Defendant to serve its answers to Plaintiffs’
interrogatories by January 20, 2015. [See Dkt. 87 at 16-17.] On that date, however, Defendant
filed a motion to stay discovery or, in the alternative, to be granted an extension of ten days to
serve its responses. [Dkt. 82 at 3.] Although the Court denied the motion to stay discovery, [Dkt.
83], the Court did grant Defendant an extension of time to serve its responses. [Dkt. 84.]
Defendant then complied with the extended deadline. [See Dkt. 85.] The Court acknowledges
that Defendant could have exhibited more alacrity in responding to Plaintiffs’ interrogatories, but
the fact remains that Defendant received additional time to respond and then did respond within
that allotted time. The Court will thus not impose sanctions pursuant to Rule 37(b)(2).
Plaintiffs then contend that Rule 37(d)(1)(A)(ii) is applicable in this case because
Defendants failed to respond to Plaintiffs’ interrogatory by serving “evasive or incomplete”
answers. 3 [Dkt. 87 at 18.] As explained above, the Court does not agree. Although the Court has
ordered Defendant to respond more fully to certain of Plaintiffs’ interrogatories, many of the
deficiencies in Defendant’s initial responses were the result of legitimate confusion. [See, e.g.,
Hr’g at 9:49 (acknowledging that Interrogatory Number Twenty-One is unclear); Hr’g at 9:56-58
(modifying Interrogatory Number Twenty-Three to address lack of clarity).] In addition, the
Court finds no culpable behavior in Defendant’s decision to incorporate many of the responses
3
Plaintiffs also suggest that Defendant failed to respond because Defendant did not answer Plaintiffs’ interrogatories
before the initial December 22, 2014 deadline to do so. [Dkt. 87-3 at 16.] The Court, however, granted Defendant’s
motion for an extension of time to answer. [See Dkt. 79.] If Plaintiffs objected to that decision, they could have
timely raised the issue with the district judge. See Fed. R. Civ. P. 72(a). Plaintiffs chose not to, and the Court at this
time will not revisit its decision to grant the extension.
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from Indiana Water: Plaintiffs asked for information in the possession of Defendant or anyone
acting on Defendant’s behalf, [see, e.g., Dkt. 87-3 at 3, 7-8, 17], and it was therefore reasonable
for Defendant to respond with the information in the possession of its wholly owned subsidiary.
Defendant thus had legitimate reasons for responding to Plaintiffs’ interrogatories in the way it
did, such that imposing sanctions would be disproportionate to Defendants’ alleged misconduct.
The Court therefore DENIES Plaintiffs’ motion for sanctions.
III.
Conclusion
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs’ Motion to Compel and for Sanctions. [Dkt. 86.] Defendant is ordered to respond to
Plaintiffs’ First Set of Interrogatories as set out above within fourteen (14) days of the date of
this order.
Dated: 03/16/2015
Distribution:
Brian Lamar Ponder
brian@brianponder.com
Duran Keller
KELLER LAW LLP
duran@kellerlawllp.com
Daniel Mark Witte
TRAVELERS STAFF COUNSEL OFFICE
dwitte@travelers.com
Frederick A. Roetter
TRAVELERS STAFF COUNSEL OFFICE
froetter@travelers.com
24
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