Salazar v. Continental Construction of Montana
Filing
64
ORDER granting 55 Motion to Compel. Plaintiff shall respond fully to Interrogatory No. 1 no later than 5/1/1012. The deadline for A & J Construction of Montana to serve its liability expert disclosures is extended to 5/29/2012. A Hearing on fees is set for 2:00 p.m. on 5/29/2012 before Judge Ostby. SEE ORDER FOR SPECIFICS. Signed by Magistrate Carolyn S Ostby on 4/25/2012. (JDH, ) Modified on 4/25/2012 per chambers, no court reporter is needed. FTR Gold is sufficient. (JDH, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JUAN SALAZAR,
) Cause No:
) CV-11-16-BLG-CSO
Plaintiff,
)
)
vs.
) ORDER GRANTING MOTION
)
TO COMPEL
)
CONTINENTAL
)
CONSTRUCTION
)
OF MONTANA, LLC, A&J
)
CONSTRUCTION OF MONTANA, )
INC., and JOHN DOES A-Z,
)
)
Defendants.
)
Defendant A&J Construction of Montana, Inc. has filed a Motion
to Compel Plaintiff’s response to a single interrogatory. Court Doc. 55.
Interrogatory No. 1 of A&J’s Second Discovery Requests asks Plaintiff
to “identify the Occupational Safety and Health Act Regulations
Plaintiff claims A&J Construction violated as alleged in Plaintiff’s
Third Amended Complaint.” See Court Doc. 56 at 3. Plaintiff did not
answer the interrogatory, instead objecting that it “calls for a legal
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conclusion” and was “vague.” For the reasons set forth below, the
motion will be granted.
I.
Applicable Legal Standard
A motion to compel may be filed when a party disagrees with the
objections interposed by the other party and wants to compel more
complete answers. See Moreno Rivera v. DHA Global Forwarding, 272
F.R.D. 50 (D. P.R. 2011). The Court has wide discretion in controlling
discovery. Jeff D. v. Otter, 643 F.3d 278, 289 (9th Cir. 2011) (citing
Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988)).
The burden lies on the objecting party to show that a discovery
request is improper. Where a party’s objections are themselves vague
and impermissibly overbroad, and no specifics are given, the objecting
party fails to carry its burden. See McLeod, Alexander, Powel & Apffel,
P.C. V. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (holding that the
party resisting discovery must show specifically how each discovery
request is not relevant or how each question is overly broad,
burdensome or oppressive); Contratto v. Ethicon, Inc., 227 F.R.D. 304,
308-09 (N.D.Cal. 2005) (finding declaration of counsel insufficient to
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warrant protection of documents). Even when the required showing is
not made, however, the Court still has the obligation to review the
discovery requests to ensure that they are non-frivolous requests.
Moreno Rivera, supra, 272 F.R.D. at 57.
II.
The Request is Relevant and Non-Frivolous
Where no claim of privilege applies, the production of evidence
can be compelled regarding any matter that is "relevant to any party’s
claim or defense...." Fed. R. Civ. P. 26(b)(1). The information sought by
Interrogatory No. 1 is clearly relevant. Plaintiff alleged in his Third
Amended Complaint, filed on May 18, 2011, that Defendants “failed to
comply with OSHA standards” and that such violations “constitute
negligence per se.” See Court Doc. 24 at 6-7, ¶¶ 29, 33. Plaintiff has
not here objected to the interrogatory on the basis of relevance.
III. Plaintiff’s Objections Are Not Sufficient
Plaintiff objected that the interrogatory calls for a legal
conclusion. It does not. Instead, it asks Plaintiff to identify what
OSHA regulation he claims were violated. This is a contention
interrogatory, not a request for a legal conclusion.
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Plaintiff’s next objection is that the question is vague. His
responsive brief does not explain how the interrogatory is vague and
the Court does not find it to be vague. Accordingly, this objection is
overruled.
Plaintiff emphasizes that he should not be required to respond to
the interrogatory because the information will be provided in his expert
disclosure. But the federal rules make clear both the deadlines for
responding to discovery and the parties’ freedom to conduct discovery in
any sequence they choose. See Fed. R. Civ. P. 26(d)(2)(A). As A&J
Construction here seeks to do, parties may use interrogatories to obtain
information to provide to their experts in preparation for trial. The
responding party may not unilaterally decide to control the sequence of
discovery. Segal v. Amazon.com, Inc., 2011 WL 841317 (W.D. Wash.
2011) (one party may not withhold discovery pending receipt of its own
requested discovery). The Court’s Scheduling Order requiring the
disclosure of experts does not eliminate the parties’ option to seek
relevant discovery by way of Rule 33 of the Federal Rules.
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IV.
Payment of Expenses
Rule 37(a)(5)(A) provides as follows:
If the motion [to compel] is granted..., the court must, after giving
an opportunity to be heard, require the party ... whose conduct
necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.
Pursuant to this rule, the Court will schedule a hearing on: (1)
whether payment of expenses is appropriate; (2) if so, the amount of
payment that should be awarded; and (3) whether Plaintiff or his
attorney, or both, should be responsible for payment of those expenses.
V.
Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that A&J’s
Motion to Compel (Court Doc. 55) is GRANTED. Plaintiff shall respond
fully to Interrogatory No. 1 no later than May 1, 2012.
IT IS FURTHER ORDERED that the deadline for A&J
Construction of Montana to serve its liability expert disclosures is
extended to May 29, 2012. All other deadlines not amended herein
remain in full force and effect.
IT IS FURTHER ORDERED that counsel shall appear before the
Court on Tuesday, May 29, 2012, at 2:00 p.m., for a hearing to
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determine: (1) whether payment of expenses to A&J Construction is
appropriate; (2) if so, the amount of payment that should be awarded;
and (3) whether Plaintiff or his attorney or both, should be responsible
for payment of those expenses.
DATED this 25th day of April, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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