Fenzel v. Group2 Software, LLC et al

Filing 61

MEMORANDUM AND ORDER GRANTING IN PART and DENYING IN PART 55 Motion to Compel and DIRECTING Plaintiff to provide copies of all documents responsive to Defendant's Requests for Production of Documents and supplement his responses to the Interrogatories as directed herein within 14 days. Signed by Chief Judge Deborah K. Chasanow on 7/15/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JERRY FENZEL
:
v.

:

Civil Action No. DKC 13-0379

:
GROUP2 SOFTWARE, LLC ET AL.
:
MEMORANDUM OPINION AND ORDER
It appears that neither party’s counsel has read, or can
follow,

the

rules

governing

discovery disputes.

discovery

and

the

resolution

of

Group 2 Software, LLC filed a motion to

compel without even paying lip service to Local Rule 104.8.

The

proper

the

procedure

responses
prepare

to

and

requires

interrogatories
serve,

but

not

a

party
or

dissatisfied

file,

requests
a

for

motion

with

production

to

compel.

to
The

opposing party has 14 days to prepare and serve, but not file, a
response.

The moving party then may reply.

Thereafter, the

parties are to hold a conference required by Rule 104.7.

If

counsel are not able fully to resolve their differences, the
party

seeking

to

compel

discovery

files

the

certificate

and

appends copies of the motion and memoranda previously exchanged.
Here, while Counsel may have communicated with each other prior
to the filing of the motion, there is no indication that the

proper procedure was followed, or that there has been any effort
to narrow the issues.
On

the

other

interrogatories

and

hand,

Plaintiff’s

requests

for

responses

production

to

are

the

clearly

deficient in substantial measure.
Defendant argues that Plaintiff’s failure to assert timely
objections

to

either

the

interrogatories

or

requests

for

production constitutes a waiver of any objections unless excused
by the court.

Plaintiff acknowledges that he was untimely in

his response, but submits that the delay was not intentional nor
was it to frustrate discovery, prejudice, or disadvantage the
Defendant.
Defendant

Plaintiff
had

argues

responses

that

forty-five

deposition of Plaintiff.

discovery
days

is

before

ongoing
the

and

scheduled

The minor delay, by itself, would not

warrant a determination that Plaintiff waived his objections.
On the other hand, Defendant’s contention that Plaintiff’s
objections

are

“overbroad,

improper

vague

and

as

they

unduly

are

simply

burdensome,”

is

boilerplate
well

taken.

“Objections to discovery must be specific, non-boilerplate, and
supported by particularized facts where necessary to demonstrate
the basis for the objection.”
F.R.D.

565,

573

(D.Md.

Mezu v. Morgan State Univ., 269

2010).

“[F]ailure

to

do

constitute a waiver of grounds not properly raised.”
Sullivan,

231

F.R.D.

468,

474
2

(D.Md.

2005).

so

may

Hall v.

Plaintiff’s

untimely, boilerplate objections are waived.

Accordingly, he

must supplement his responses to the extent he withheld any
information in reliance on those objections.
Plaintiff will be directed to comply with the requirements
of

Fed.R.Civ.P.

possession,
copies.

34(b)(2)(E)

even

if

he

with

believes

all

the

documents

defendant

in

his

already

has

Emails provided by Defendant illustrate that on May 6,

Plaintiff’s counsel told his counterpart that he could come to
Plaintiff’s counsel’s office “any day next week to review the
documents.

If you would like any copies after your review, my

office will have them made and provide you the copies.”
No. 55-4, at 16).

(ECF

On May 8, Defendant’s counsel wrote back

asking how many documents are in question and how have they been
categorized.
documents,

He requested that Plaintiff make a copy of all

scan

and

bates

label

them,

and

organize

accordance with Fed.R.Civ.P. 34(b)(2)(E)(i)-(iii).

them

in

On May 14,

Defendant’s counsel wrote that he has not received any response
regarding the number of documents and renewing his request for a
copy of the documents.

On May 20, after not getting a response,

Defendant’s counsel renewed his demand.
Plaintiff’s

counsel

wrote

that

his

Finally, on May 22,

delay

was

due

to

other

pressing matters and that he “will address your inquires in full
tomorrow when I have more time to provide you with a meaningful
response.”

The next day, Plaintiff’s counsel’s legal assistant
3

sent an email with three files attached that, based on their
file names, appear to be the same answers and responses sent
previously.
In his opposition, Plaintiff contends that the invitation
to Defendant’s counsel to come to Plaintiff’s counsel’s office
and inspect the documents remains open and Plaintiff’s counsel
has only himself to blame for failing to inspect.
While Plaintiff’s counsel did extend an invitation to come
visit his office and inspect the documents, he was unresponsive
to Defendant’s counsel further inquiries as to the number of
documents and his desire that he be provided copies, presumably
at Defendant’s expense.

Consequently, Plaintiff’s counsel will

be ordered to provide copies of all documents responsive to
Defendant’s requests, including those that Plaintiff believes
are already in Defendant’s possession, in accordance with the
procedures set forth in Fed.R.Civ.P. 34(b)(2)(E)(i)-(iii).
Defendant

also

argues

that

interrogatories are incomplete.

Plaintiff’s

answers

to

some

It contends that answers to

interrogatories 1, 6, 7, and 22 are incomplete because they do
not provide contact information such as telephone number or last
known address for the individuals identified.

Defendant has not

provided the introductory instructions to the interrogatories.
If those instructions defined the term “identify” to include
contact information, then the responses would be deficient.
4

If

there was no such expansive definition, then Defendant would not
be entitled to further information.
Defendant takes issue with the answer to interrogatory 5,
arguing

that

directions

Plaintiff

that

he

provided

received

no

from

actual
Group

instructions

2

or

Mr.

or

Bowen.

Plaintiff’s answer states that “[h]e [Mr. Bowen], rarely, if
ever game me instructions as to what to do or how to run a
business.”

(ECF No. 55-2, at 9-10).

This is a sufficient

response.
Defendant

objects

specifically

that

individuals,

firms,

to

the

Plaintiff
law

response

“fails

firms,

to

to

interrogatory

identify

accounting

companies, referring to them only generically.”
8).

any

firms

6,

specific
or

other

(ECF No. 55, at

Interrogatory 6 requested Plaintiff to “state and describe”

all actions performed for Group 2 while physically away from his
home or Group 2’s offices, including providing “the identity of
any individual(s) with personal knowledge of such activities.”
(ECF No. 55-2, at 10).

In his response, Plaintiff states that

he met with “private equity firms, law firms, accounting firms”
at an event in Chicago, and also “contacted some contacts I had
at other large companies.”

(Id.).

Defendant correctly points

out that Plaintiff has not identified any individuals who have
personal

knowledge

of

these

activities

which

would

include,

presumably, individuals at the entities he states he met with.
5

Plaintiff

will

be

ordered

to

respond

more

fully

to

this

interrogatory.
Similarly, interrogatory 7 asks Plaintiff to “[i]dentify
and

describe”

all

communications

between

Plaintiff

and

any

actual or prospective Group 2 customer, and include in that
description “the identity of the individuals involved in the
[c]ommunication.”

In his answer, Plaintiff states that he spoke

with Lexis/Nexis and Crown Castle, and that Aetna did sign an
agreement.

(Id.

at

11).

Plaintiff

will

be

instructed

to

identify the individuals he spoke with at these companies.
Defendant

takes

issue

with

Plaintiff’s

responses

to

interrogatory 11, which asked Plaintiff to “state in detail the
basis

of

any

contention

that

[Plaintiff]

fiduciary duties or obligations to Group 2.”

did

not

owe

any

Plaintiff answered

that “the existence and extent of a duty owed is a question of
law for a court.”

Defendant contends that Plaintiff should be

compelled to provide any factual basis that he has that relates,
shows or demonstrates that he owes or does not owe any fiduciary
duty or obligation to Group 2.
denied.

Plaintiff’s request will be

This question asks for a legal conclusion and is not

proper for an interrogatory.
Finally,

Defendant

contends

interrogatory 17 is incomplete.

that

the

answer

to

Plaintiff was asked to state

and describe “all income, benefits, payment, or other form of
6

compensation” received from Group 2.”

In addition to supplying

the cash compensation received, Plaintiff responded that he “did
not

receive

any

reimbursement

for

ordinary

and

necessary

business expenses incurred,” and “allowed Group 2 to use my
furniture and computer equipment without any rental income being
received.”

Defendant asks the court to compel Plaintiff to

provide information and details on these unsubstantiated claims.
But

as

Plaintiff

correctly

points

out,

the

question

asked

Plaintiff to describe compensation “received from Group 2,” not
compensation

not

given

that

Plaintiff

feels

he

is

owed.

Plaintiff’s response is sufficient.
Defendant seeks its reasonable fees, including attorney’s
fees, incurred in making this motion.

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

Subsection (C) provides that 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.”
(emphasis

added).

Given

the

relatively

minor

delay

and

prejudice experienced, and Defendant’s failure to follow proper
procedure, Defendant’s request for expenses will be denied.
Therefore,

for

the

reasons

stated

in

the

foregoing

Memorandum Opinion, it is this 15th day of July, 2014, by the
United

States

District

Court

for

ORDERED that:

7

the

District

of

Maryland,

1.

The

motion

to

compel

filed

by

Defendant

Group

2

Software, LLC (ECF No. 55) BE, and the same hereby IS, GRANTED
IN PART AND DENIED IN PART;
2.
of

all

Plaintiff Jerry Fenzel is directed to provide copies
documents

Production

of

responsive

Documents

and

to

Defendant’s

supplement

his

Requests

responses

to

for
the

Interrogatories as directed herein within 14 days; and
3.

The

clerk

will

transmit

copies

of

the

Memorandum

Opinion and Order to counsel for the parties.

/s/
DEBORAH K. CHASANOW
United States District Judge

8