Pueblo of Jemez v. United States of America
Filing
218
MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter granting in part and denying in part 170 Motion to Compel. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PUEBLO OF JEMEZ,
Plaintiff,
v.
CIV 12-0800 JB/JHR
UNITED STATES OF AMERICA,
Defendant,
and
NEW MEXICO GAS COMPANY,
Defendant-in-Intervention,
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant United States’ Motion to Compel
Production of Supplemental Responses and Production of Documents in Response to the United
States’ Interrogatories, Requests for Production, and Requests for Admission, (Doc. 170), filed
December 22, 2017, and fully briefed on January 19, 2017. See Doc. 183. The Court, having
reviewed Plaintiff Pueblo of Jemez’s Response (Doc. 180), and the United States’ Reply (Doc.
182), finds that the Motion is well-taken in part and will be granted in part, for the reasons set
forth below.
I)
BACKGROUND
Plaintiff Pueblo of Jemez, a federally-recognized Indian Tribe, brought this action against
the United States to quiet its aboriginal title to the lands known as the Valles Caldera National
Preserve, formerly referred to as Baca Location No. 1. Doc. 91 (Joint Status Report) at 2.
Plaintiff’s claim is premised upon the alleged fact that “[t]he ancestral Jemez people were the
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predominant and primary Native American occupants and land users of the Jemez Mountains,
including the lands of the Valles Caldera National Preserve and the greater Rio Jemez
watershed[.]” Doc. 1 (Complaint) at 1-2. As set forth in the Complaint, “[i]n 1860 Congress
authorized the heirs of Luis Maria Cabeza de Baca (the ‘Baca heirs’) to select 496,447 acres, in
no more than five square parcels, of so-called ‘public domain’ lands anywhere in the Territory of
New Mexico.” Id. at 2. One of the parcels selected by the Baca heirs, subsequently known as
“Baca Location No. 1” encompassed approximately 99,289 acres including and surrounding the
Valles Caldera. Id. Plaintiff claims, and the Tenth Circuit agreed, 1 that the Baca heirs received
this grant subject to the continuing aboriginal Indian Title of the Pueblo of Jemez, “assuming that
Jemez maintained aboriginal possession at the time.” See Doc. 42-1 (Mandate) at 39 (As the
Tenth Circuit “pointed out, Supreme Court decisions since 1823 make clear that the Baca grant
at issue was subject to the Jemez Pueblo’s aboriginal title – assuming the Jemez maintained
aboriginal possession at the time.”). However, the Tenth Circuit made clear that it expressed “no
opinion on whether, on remand, the Jemez Pueblo can factually establish aboriginal possession
to the land it claims.” Doc. 42-1 at 39. That was left to this Court. Id. at 48 (“At this point in the
current proceedings, neither party has had the opportunity to offer evidence about whether
anyone has actually interfered with the Jemez Pueblo’s traditional occupancy and uses of the
land in question here, before or after 1946.”).
The Tenth Circuit’s rationale in reversing this Court helps frame the current discovery
dispute. After reviewing Supreme Court precedent, the Tenth Circuit pointed out that, in the case
of the Valles Caldera, “simultaneous occupancy and use of land pursuant to fee title and
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This case was initially dismissed for want of jurisdiction by the Honorable Robert Brack. See Doc. 26. The Tenth
Circuit reversed Judge Brack’s decision and remanded this case for further proceedings. See Doc. 42. The Court
presumes that the parties are familiar with the case history, and so does not fully set forth that procedural
background.
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aboriginal title could occur because the nature of Indian occupancy differed significantly from
the occupancy of the settlers.” Doc. 42-1 at 42. In other words, assuming that Plaintiff continued
in its “aboriginal use and occupancy,” the fact that the land was granted to the Baca heirs did not
extinguish Plaintiff’s aboriginal title. Id. This is because, as the Court pointed out, “the terms
‘aboriginal use and occupancy’ have been defined ‘to mean use and occupancy in accordance
with the way of life, habits, customs and usages of the Indians who are its users and occupiers.’”
Id. (citation omitted). Whether Plaintiff could demonstrate aboriginal use and occupancy of the
land was therefore determined to be a fact question, subject to development on remand. Doc. 421 at 44 (quoted authority omitted). Specifically, Plaintiff was tasked with “show[ing] ‘actual,
exclusive, and continuous use and occupancy for a long time of the claimed area.’” Id. The Court
explained that “the ‘exclusive’ part of the test mean[s] only that in order to establish aboriginal
title, a tribe ‘must show that it used and occupied the land to the exclusion of other Indian
groups.’” Id. (emphasis in original). “To show ‘actual’ and ‘continuous use,’ on the other hand,
the Jemez Pueblo must show, as it alleges in its Complaint, that the Jemez people have continued
for hundreds of years to use the Valles Caldera for traditional purposes, including hunting,
grazing of livestock, gathering of medicine and of food for subsistence, and the like. As the cases
make clear, if there was actually substantial interference by others with these traditional uses
before 1946, the Jemez Pueblo will not be able to establish aboriginal title.” Doc. 42-1 at 44-45.
Accordingly, the question before this Court on remand is whether Plaintiff can demonstrate
actual, exclusive and continuous use of the Valles Caldera/Baca Location No. 1.
On remand, this Court entered a Scheduling Order and the parties have engaged in
discovery. See Doc. 94 (Scheduling Order); Docs. 115 & 116 (Protective Orders Governing
Confidential Information) Doc. 119 (Order and Stipulation Regarding Discovery Procedure);
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Doc. 144 (Stipulated Order Amending Scheduling Orders); Doc. 187 (Stipulated Order
Amending Scheduling Order). The United States served its First Set of Interrogatories and
Requests for Production on May 17, 2016, see Doc. 61 (Certificate of Service), and its First Set
of Request for Admission on May 25, 2016. See Doc. 63 (same). Plaintiff served its Objections
and Responses to Defendant’s First Set of Requests for Production and Interrogatories on July
11, 2016, Doc. 71 (Certificate of Service) and its First Supplemental Objections and Answers to
Defendant United States’ First Set of Interrogatories on June 27, 2017. Doc. 135. Plaintiff served
its Objections and Responses to Defendant’s First Set of Requests for Admission on November
2, 2017. Doc. 153. The parties met and conferred about Plaintiff’s allegedly deficient responses
to Defendant’s Interrogatories and Requests for Admission over the course of 2016 and 2017.
See Doc. 170 at 2-3 (Motion). Ultimately, the parties reached an impasse, and the pendent
motion was filed.
In bringing the present Motion, Defendant asserts that “Plaintiff has essentially declined
to provide information on topics the Tenth Circuit identified as critical elements of Plaintiff’s
case.” Doc. 170 at 5. The United States so asserts on the grounds that Plaintiff has “provided
incomplete and often summarized responses to the United States’ Interrogatories and Requests
for Admission” and “has withheld thousands of admittedly relevant documents on the basis of
privileges that either do not exist or, if they exist, do not shield the documents in question under
the circumstances of this case.” Id. at 5-6. Plaintiff, on the other hand, responds that it
appropriately responded to Defendant’s Interrogatories and Requests for Admission, and
withheld the documents at issue on the basis of the Pueblo of Jemez’ legislative privilege. See
Doc. 180.
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II)
LEGAL STANDARDS
Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery, providing that
[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in
evidence to be discoverable.” Id.
Parties may issue interrogatories pursuant to Federal Rule of Civil Procedure 33, which “may
relate to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2). “Each
interrogatory must, to the extent it is not objected to, be answered separately and fully in writing
under oath.” Fed. R. Civ. P. 33(b)(3). A responding party may object to an interrogatory; however,
the grounds for an objection “must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). A party may
move to compel the answer to an interrogatory under Rule 33 if good faith attempts to secure the
answer are unsuccessful. Fed. R. Civ. P. 37(a)(3)(B)(iii).
Parties may issue requests for admission under Federal Rule of Civil Procedure 36
directed at “any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application
of law to fact, or opinions about either; and (B) the genuineness of any described documents.”
Fed. R. Civ. P. 36(a)(1). “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.” Fed. R. Civ. P. 36(a)(4). “The requesting party may move to determine the sufficiency of
an answer or objection. Unless the court finds an objection justified, it must order that an answer
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be served. On finding that an answer does not comply with this rule, the court may order either
that the matter is admitted or that an answer be served[.]” Fed. R. Civ. P. 36(a)(6).
Parties may issue requests for production pursuant to Federal Rule of Civil Procedure 34
“within the scope of Rule 26(b)[.]” Fed. R. Civ. P. 34(a). Each request must be responded to or
addressed by specific objection. Fed. R. Civ. P. 34(b)(2). A party may move to compel a
response to a request for production if good faith attempts to secure the answer are unsuccessful.
Fed. R. Civ. P. 37(a)(3)(B)(iv).
Parties are under a continuing duty to supplement responses to discovery “in a timely
manner if the party learns that in some material respect the disclosure or response is incomplete
or incorrect, and if the additional or corrective information has not otherwise been known to the
other party during the discovery process.” Fed. R. Civ. P. 26(e)(1)(A). The failure to supplement
a discovery response may result in sanctions “unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). “[A]n evasive or incomplete disclosure, answer, or response
must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).
III)
ANALYSIS
Defendant’s Motion is not a model of clarity, insofar as it does not directly identify which
discovery requests are at issue until the concluding paragraph. There, Defendant “respectfully
requests that this Court compel Plaintiff to supplement its responses to the United States’
Interrogatories 1-5, 7-8, 10, and 18, and to respond to Requests for Production 1, 3, 4, and 5[.]”
Doc. 170 at 28. “Finally, the United States respectfully moves the Court to overrule Plaintiff’s
executive/leg. process privilege objection and to order Plaintiff to produce all documents that
have until now been withheld on the basis of that objection.” Id. However, Defendant also
appears to take issue with Plaintiff’s responses to its first six Requests for Admission, and asks
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the Court to order Plaintiff admit them in its Reply brief. See Doc. 170 at 5, 10, 12; Doc. 182 at
13. The Court addresses each request in turn.
A) Timing of the Motion
Before addressing the merits of Defendant’s Motion, however, the Court pauses to
consider Plaintiff’s position that the Motion is untimely under this Court’s local rules. See Doc.
180 at 20, 27 (citing D.N.M.LR-Civ. 26.6). Under Local Rule 26.6:
[a] party served with objections to: an interrogatory; request for production or
inspection; or request for admission must proceed under D.N.M.LR-Civ. 37.1
within twenty-one (21) days of service of an objection unless the response
specifies that documents will be produced or inspection allowed. In this case, the
party must proceed under D.N.M.LR-Civ. 37.1 within twenty-one (21) days after
production or inspection of the documents.
Failure to proceed within this time period constitutes acceptance of the objection.
For good cause, the Court may, sua sponte or on motion by a party, change the
twenty-one (21) day period.
D.N.M.LR-Civ. 26.6. Local Rule 37.1, in turn, supplements relief sought pursuant to Fed. R.
Civ. P. 37(a).
Plaintiff’s argument is rejected. Local rules may be waived by a Judge to avoid injustice.
D.N.M.LR-Civ. 1.7. And, as Defendant points out, the parties stipulated to a “suspension” of the
applicable rules in an Order and Stipulation Regarding Discovery Procedure. See Doc. 119 at 16.
As stated in that Order, “[i]n order to comply with the provisions of this order and to review the
likely large amount of discovery, the deadline in which a party must raise a motion to compel or
a motion for a protective order as provided for in D.N.M.LR-Civ. 26.6 and 37.1 is hereby
suspended.” Id. As such, while Defendant’s Motion might be technically late under this Court’s
local rules, the Court will proceed to analyze its merits.
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B) Interrogatories
Defendant’s first three interrogatories (1-3) are targeted at whether Plaintiff can
demonstrate exclusive aboriginal use of the Valles Caldera/Baca Location No.1. See Doc. 170 at
6. Each interrogatory seeks information, ranging from 1850 to the present, regarding Plaintiff’s
denial or attempted denial of permission to a person or entity for use of the Valles Caldera (No.
1), Plaintiff’s granting of permission to a person or entity for use of the Caldera (No. 2), and each
and every instance in which Plaintiff expelled or attempted to expel or eject a person or entity
that had been using the Caldera (No. 3). See Doc. 170-1 at 3-6. Plaintiff objected to each
interrogatory on the basis of overbreadth, undue burden, vagueness and on confidentiality
grounds. Id. “Subject to and without waiving these objections,” Plaintiff responded to
Interrogatory No. 1 with one example, arising on July 2, 1851, when it drove Navajo raiders
from the Caldera. Doc. 170-1 at 4. Otherwise, Plaintiff’s answer to the interrogatory is devoid of
substance, generally suggesting that Plaintiff would not deny permissive use to other tribes
during times of peace, but excluded some during times of conflict. See id. at 3-5. Plaintiff’s
supplemental answer to Interrogatory No. 1 further discusses the example provided in response
to the first interrogatory, states that “[m]embers of the Jemez Pueblo also engaged in efforts to
drive the Spanish from the area,” and discusses an instance of trespassing in 2001 by an
unidentified individual. Doc. 180-2 at 5. Plaintiff’s response to Interrogatory No. 2 originally
merely referenced its response to Interrogatory No. 1. See Doc. 170 at 6. Its supplemental
response provided little of substance; rather, after stating a series of objections, Plaintiff
responded by stating that “those Jemez witnesses that retain an oral history as well as personally
use Baca Location No. 1 do not recall seeing any other tribal members hunting, camping or being
in Baca Location No. 1 during their lifetimes.” Doc. 180-2 at 6-7. Finally, in answering
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Interrogatory No. 3, Plaintiff stated a series of objections and then referred Defendant to its
response to Interrogatory No. 1. See Doc. 170-1 at 6.
Defendant argues that these responses are “inadequate.” Doc. 170 at 5. Defendant further
argues that Plaintiff failed to answer each interrogatory fully or separately, as required by the
rules. Id. at 6, 8. As relief, Defendant asks the Court to “order Plaintiff to provide detailed facts
sufficient to support its claim that it exclusively used the Valles Caldera.” Id. at 15. Specifically,
Defendant would have the Court order Plaintiff to
include specific facts not only about how it used the Valles Caldera, but also: (1)
its knowledge regarding which tribes, groups, or individuals used or attempted to
use it; (2) how other tribes, groups, or individuals used or attempted to use it; (3)
whether and if so how others sought permission from Plaintiff to use the land; and
(4) whether and if so when Plaintiff prevented or sought to prevent use of the land
by others.
Id. (emphasis in original). Plaintiff responds that its answers are not inadequate, but, to the
contrary, are “appropriate and reflect the nature of evidence at issue in aboriginal title cases[.]”
Doc. 180 at 3. Plaintiff then discusses why evidence in aboriginal title cases can vary from the
norm, id. at 8-13, concluding that “[j]ust because Jemez did not use a written language that
would make it possible to provide recorded dates of each visit as might be anticipated under a
more Western system does not mean that Jemez’s answers should somehow be found
unresponsive or impermissible.” Id. at 13.
First, the Court finds that there was nothing technically improper about Plaintiff’s
decision to reference Interrogatory No. 1 when answering Interrogatories Nos. 2 and 3. While
Rule 33(b)(3) states that “[e]ach interrogatory must, to the extent it is not objected to, be
answered separately and fully[,]” Fed. R. Civ. P. 33(b)(3), it is common practice for a party to
answer an interrogatory by referring to others, so long as the reference is “specific rather than
general.” See Martinez v. Easter Seals Santa Maria El Mirador, Inc., 2014 WL 12597407, at *3
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(D.N.M. Oct. 7, 2014) (citing Pilling v. Gen. Motors Corp., 45 F.R.D. 366, 369 (D. Utah 1968)).
Here, as Plaintiff argues, Defendant’s first three interrogatories were related; as such, “[i]t is
logical that Jemez would cross-reference its answers to interrogatories 1 and 3 because these
interrogatories seek similar information, and the information overlaps.” Doc. 180 at 15.
Moreover, as Plaintiff points out in its Response, it actually did provide a separate answer to
Interrogatory No. 2 when it supplemented its answers. See Doc. 180-2 at 5-7.
Turning to the heart of the parties’ dispute, however, the Court is inclined to agree with
Defendant that Plaintiff’s answers to Interrogatories 1-3 lacked the substance that the questions
sought. While the Court is cognizant that it might be difficult for Plaintiff to marshal evidence in
support of its exclusive use of the Valles Caldera/Baca Location No. 1, given that much of this
evidence comes down to oral histories, that does not excuse Plaintiff from making a good-faith
attempt to answer the interrogatories fully. As Defendant argues, “[s]imply put, Jemez cannot
refuse to respond to an interrogatory because the responsive information takes the form of oral
history.” Doc. 182 at 3. As such, the Court will order Plaintiff to serve amended answers to
Interrogatories Nos. 1-3. To the extent that Plaintiff is unable to answer the interrogatories
because the responsive information takes the form of oral histories, Plaintiff must endeavor to
reduce that oral history to writing.
Interrogatories No. 4 and 8 request Plaintiff to “describe by metes and bounds or by
township, range and section,” the lands to which it claims aboriginal title. See Doc. 170-1 at 7,
12. Plaintiff objected to these requests on various grounds, including over-breadth, undue
burden, vagueness and ambiguity. Id. Plaintiff further objected that the described measurement
system is inconsistent with its own and Spanish measurement techniques, which were not used
“during a substantial portion of the time period at issue.” Id. at 7, 12. Without waiving these
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objections, Plaintiff stated that it anticipated its experts would translate oral histories, Spanish
and Mexican land documents and archeological evidence, and would produce “such information
that is responsive or partial (sic) responsive to the interrogatory.” Id. at 8, 12. However, Plaintiff
never supplemented these responses. See Doc. 180-2. Nor does Plaintiff address them in its
Response brief. See Doc. 180 at 8 (only recognizing that Interrogatories Nos. 1, 2, 3, 10, and 18
are disputed). Defendant, apparently, has grown tired of waiting. See Doc. 170 at 13 (“The
caveat is not unreasonable, but it cannot justify a complete failure to address the substance of the
United States’ discovery requests.”). As such, the Court will order Plaintiff to fully and
completely respond to Interrogatories Nos. 4 and 8.
Interrogatories Nos. 5 and 7 ask Plaintiff to “identify the location of all trails, farmhouse
sites, agricultural fields, ceremonial sites, sacred areas, mineral procurement areas, hunt traps
and blinds, and camp sites reference in Paragraph 26 of the Complaint[,]” (No. 5) and the
location of its “uses,” as stated in Paragraph 59 of the Complaint (No. 7). See Doc. 170-1 at 8,
10. Plaintiff objected to these requests on the grounds that they seek “the production of
information that contains confidential, religious, and sacred information. The extensive
desecration, theft, and damage likely to occur to sacred sites through their revelation in fulfilling
th[ese] request[s] [is] not proportional to the needs of the case[.]” Id. at 8, 11. Without waiving
this objection, Plaintiff indicated that it would answer the requests upon the entry of a
confidentiality order “which properly protects Plaintiff’s interests and as allowed by Jemez
tradition and law[.]” Id. at 9, 11. The referenced confidentiality order was entered on March 17,
2017, and Plaintiff supplemented its answers to these interrogatories on June 27, 2017. See Doc.
135 (Certificate of Service); Doc. 180-2 at 7-14. Defendant complains that, “despite the
existence of a Protective Order, [Plaintiff] evaded providing descriptions of where its uses of the
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Valles Caldera occurred under the auspices of Plaintiff’s unfamiliarity with methods to measure
land boundaries.” Doc. 170 at 17. The Court agrees with Defendant that Plaintiff cannot avoid
the discovery requests at issue merely because it is unfamiliar with the measurement devices
referenced therein. As such, the Court will order Plaintiff to supplement its answers to
Interrogatories Nos. 5 and 7 to the extent it is able.
Interrogatory No. 10 asks Plaintiff to “identify and describe every occasion on which
Jemez has prohibited another tribe from accessing or using Redondo Peak[.]” Doc. 170-8 at 2.
By way of background, “Redondo Peak and surrounding areas within the Valles Caldera provide
the central and indispensable geographical and spiritual core of Jemez Pueblo religion and
culture.” Doc. 1 (Complaint) at 7. Plaintiff responded to this Interrogatory with a series of
objections; however, without waiving its objections, Plaintiff “refers and incorporates its
previous answers and objections to interrogatory no. 1, including supplemental answers.” Id. at
3. Plaintiff then went on to explain that in times of peace, there would not be a need to deny
permissive use, but that in times of “war or conflict, Jemez may exclude others.” Id. at 3-5.
Finally, Plaintiff provided one example, in 2001, of when it did not permit a use of the peak. Id.
at 5. As with Plaintiff’s responses to Interrogatories Nos. 1-3, the Court finds that its answer to
Interrogatory No. 10 is incomplete. It appears likely that an occupant such as Plaintiff can
provide more than one example of its exclusive use of Redondo Peak during the period at issue,
and, if it cannot, it must so state. As such, the Court will order Plaintiff to supplement its answer
to Interrogatory No. 10.
The final interrogatory at issue is No. 18, which asks: “[o]n what date did Plaintiff first
become aware that the United States had granted Baca Location No. 1 to the Baca heirs, as
alleged in paragraphs 75 through 83 of Plaintiff’s complaint[,]” was objected to on various
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grounds. See Doc. 170-8 at 6. However, Plaintiff responded that, “[a]s states (sic) in paragraph
78 of the Complaint, ‘Jemez Pueblo received no notice from the United States of the grant to the
Baca heirs.’ None of the referenced paragraphs assert that Plaintiff became aware of the United
States (sic) grant of Baca Location No. 1 to the Baca heirs.” Id. Plaintiff never supplemented this
request. See Doc. 180-3. Defendant protests that “[b]y this utterly hollow objection, Plaintiff
appears to be denying awareness of a fact alleged in its Complaint.” Doc. 170 at 18 (emphasis in
original). The Court agrees with Defendant that Plaintiff, as a governmental entity, must respond
to this interrogatory by one of its officers or agents “who must furnish the information available
to the party.” Fed. R. Civ. P 33(b)(1)(B). Surely, Plaintiff became aware of the Baca grant at
some point in its history, or it would not have referenced the same in its complaint. Defendant is
entitled to know when. As such, the Court will order Plaintiff to provide a supplemental answer
to Interrogatory No. 18.
C) Requests for Admission
After becoming frustrated with Plaintiff’s responses to the above-interrogatories,
Defendant served on Plaintiff a set of Requests for Admission, seeking “to pin down, for three
specific Tribes, whether Plaintiff has or has not given them permission to use Baca Location No.
1.” Doc. 170 at 10. Each of Defendant’s six requests, therefore, asked Plaintiff to admit that it
possesses no oral history explicitly granting or denying permission to other tribes to use the
Valles Caldera. See Doc. 170-7. Plaintiff responded to each request, albeit with qualified
responses. See id. Defendant complains that Plaintiff cannot have it both ways, either it must
admit or deny the requests without qualification. See Doc. 170 at 8-13. Plaintiff, on the other
hand, argues that it properly qualified its responses to Defendant’s requests, because “[a]ll of the
requests at issue contain half-truths, which forces Jemez to qualify its responses.” Doc. 180 at
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19-20. Defendant, in Reply, argues that Plaintiff should be forced to admit its requests for
admission because “it lacks knowledge of other tribes using the Valles Caldera.” Doc. 182 at 5.
Initially, the Court finds nothing improper about the form of Plaintiff’s responses. Rule
36(a)(4) states that
[i]f 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.
Fed. R. Civ. P. 36(a)(4). As such, Plaintiff’s qualification of its responses was in accord with the
rules. Moreover, the Court finds that the substance of Plaintiff’s responses adequately conformed
with the Rule’s requirement. “The purpose of the rule is to reduce the costs of litigation by
eliminating the necessity of proving facts that are not in substantial dispute, to narrow the scope
of disputed issues, and to facilitate the presentation of cases to the trier of fact.” S.E.C. v.
Goldstone, 300 F.R.D. 505, 525 (D.N.M. 2014) (citation omitted). Here, Plaintiff has both
admitted and denied Defendant’s requests for admission. To the extent that these admissions or
denials are inconsistent with Plaintiff’s interrogatory answers, Defendant will have the
opportunity to test the veracity of the same at trial.
D) Document Production
Finally, Defendant moves the Court to compel Plaintiff to fully respond to its Requests
for Production Nos. 1, 3, 4, and 5 “by producing improperly-withheld materials.” Doc. 170 at 28.
These materials, totaling “more than three thousand documents” were withheld on the basis of
the executive and legislative process privileges. Id. at 19. Defendant asks the Court to overrule
the asserted privileges and require the production of these documents. Id.
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There is a significant problem with the relief requested by Defendant. Under this Court’s
local rules, “[a] party seeking relief pursuant to FED. R. CIV. P. 26(c) or 37(a) must attach to the
motion a copy of: (a) the interrogatory, request for production or inspection, relevant portion of
deposition transcript, or request for admission; and (b) the response or objection thereto.”
D.N.M.LR-Civ. 37.1. However, none of the requests at issue are attached to either the Motion or
Reply. While the Court could analyze the privileges asserted in the abstract, it is not authorized
to issue advisory opinions. As such, Defendant’s Motion is denied without prejudice as to the
requests for production at issue. Should Defendant choose to re-litigate this portion of the
Motion, it must attach the disputed requests and Plaintiff’s response. To the extent that doing so
will exceed the page limits set forth in the Court’s local rules, Defendant should file a Motion
seeking to exceed the same.
E) Sanctions
Neither party broaches the topic of sanctions under Rule 37. However,
[i]f the motion is granted … the court must, after giving an opportunity to be
heard, require the party or deponent 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. But the court
must not order this payment if … (ii) the opposing party’s nondisclosure,
response or objection was substantially justified; or (iii) other circumstances make
an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A). If the motion is denied, the Court may, similarly, assess costs and
fees against the movant. Fed. R. Civ. P. 37(a)(5)(B). 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.” Fed. R. Civ. P. 37(a)(5)(C).
In this case, the Court has both granted and denied the relief requested by the United
States in its Motion. As such, the Court will award sanctions to neither party. While Plaintiff’s
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answers to Defendant’s interrogatories may have been deficient, the same is not true of its
responses to Defendant’s requests for admission. Furthermore, the Court is denying without
prejudice Defendant’s Motion as it relates to its requests for production.
IV. CONCLUSION
In sum, the Court finds Defendant’s Motion (Doc. 170) is well-taken in part and should
be granted in part as to Plaintiff’s interrogatory answers. However, the Court will deny the
requested relief as to Plaintiff’s responses to Defendant’s requests for admission, and will deny
without prejudice Defendant’s Motion insofar as it seeks document production. As such, the
Court hereby orders:
1. Within 14 days of the entry of this order, Plaintiff shall supplement its responses to
Interrogatories 1-5, 7-8, 10, and 18.
2.
Defendant’s Motion is denied as to Plaintiff’s responses to Defendant’s Requests for
Admission.
3. Defendant’s Motion is denied without prejudice as to Plaintiff’s responses to
Defendant’s Requests for Production.
4. Each party shall bear its own fees associated with litigating Defendant’s Motion.
IT IS SO ORDERED.
________________________
JERRY H. RITTER
U.S. MAGISTRATE JUDGE
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