Ortega v. New Mexico Legal Aid, Inc. et al
Filing
252
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL UNION by Magistrate Judge Kirtan Khalsa. (kmt)
Case 1:18-cv-00111-MV-KK Document 252 Filed 07/15/20 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MINA ORTEGA,
Plaintiff,
vs.
Civ. No. 18-111 MV/KK
NEW MEXICO LEGAL AID, INC. et al.,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL UNION
THIS MATTER is before the Court on Plaintiff’s Motion to Compel Responses to
Plaintiff’s Second Discovery Requests to Union (Doc. 242), filed June 10, 2020. Plaintiff filed a
Notice of Errata relating to the motion on June 11, 2020, (Doc. 243); Defendant Siempre Unidos
en Progreso, a unit of National Organization of Legal Service Workers (NOLSW)/UAW Local
2320 International United Auto Workers, AFL-CIO (“Union”) filed a response in opposition to
the motion on June 23, 2020, (Doc. 247); and, Plaintiff filed a reply in support of the motion on
July 10, 2020. (Doc. 250.) The Court, having reviewed the parties’ submissions, the record, and
the relevant law, and being otherwise fully advised, FINDS that the motion is well-taken in part
and should be GRANTED IN PART and DENIED IN PART as set forth below.
Pursuant to Federal Rule of Civil Procedure 33, a party may serve on any other party
interrogatories “relat[ing] to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ.
P. 33(a)(2). Similarly, pursuant to Rule 34, a party may request that any other party produce
designated documents or electronically stored information (“ESI”) in the other party’s possession,
custody, or control that concern any matter within the scope of Rule 26(b). Fed. R. Civ. P. 34(a).
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Rule 26(b), in turn, permits a party to “obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.
P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be
discoverable.” Id.
Factors the Court should consider in determining whether discovery is “proportional to the
needs of the case” include:
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.
Id. “The court’s responsibility, using all the information provided by the parties, is to consider
these . . . factors in reaching a case-specific determination of the appropriate scope of discovery.”
Fed. R. Civ. P. 26(b)(1), 2015 Amendment, Advisory Committee Notes.
In the motion presently before the Court, Plaintiff seeks an order compelling the Union to:
(a) answer Instruction E and Interrogatories Nos. 8 and 10 of Plaintiff’s First Set of Interrogatories
to Union more fully; (b) verify the Union’s Amended Responses to Plaintiff’s First Set of
Interrogatories to Union; and, (c) respond more fully to Requests for Production Nos. 10 and 11
of Plaintiff’s Second Request for the Production of Documents to Defendant Union. (Docs. 242,
243.)
1.
Instruction E
According to the parties, Instruction E directs the Union to state the name, address, and
telephone number of the person(s) who supplied the Union with the information in its answers to
Plaintiff’s First Set of Interrogatories to Union. (Doc. 242 at 3; Doc. 247 at 8-9.) In her motion,
Plaintiff contends that the Union “did not comply” with this instruction, “but only made a general
statement” in a letter from its counsel “that Donis [Borks] assisted in the preparation of all of the
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interrogator[y answers], and Alicia Clark assisted in the preparation of the responses that mention
her actions and her time as Grievance Chair.” (Doc. 242 at 3.) In response, the Union contends
that the information its counsel provided is adequate when read in conjunction with its Initial
Disclosures, in which it advised Plaintiff that Mr. Borks and Ms. Clark “could be contacted care
of Union’s counsel.” (Doc. 247 at 9.)
As an initial matter, the Court notes that Plaintiff did not attach a copy of her First Set of
Interrogatories to Union to her motion to compel or Notice of Errata. (See generally Doc. 242 and
Doc. 243 at 4-18.) She did attach to her Notice of Errata a copy of the Union’s Amended
Responses to Plaintiff’s First Set of Interrogatories to Union; however, this document does not
include Instruction E. (Id.) As such, Plaintiff’s motion does not comply with Local Civil Rule
37.1, which requires “[a] party seeking relief pursuant to Fed. R. Civ. P. 26(c) or 37(a) [to] attach
to the motion a copy of . . . the interrogatory [or] request for production or inspection” at issue.
D.N.M. LR-Civ. 37.1(a). Plaintiff’s failure to comply with Rule 37.1 prevents the Court from
analyzing the precise language of Instruction E in determining whether the Union has answered it
adequately. The Court must therefore rely on the parties’ descriptions of the instruction, which
are fortunately substantially similar. (Compare Doc. 242 at 3 with Doc. 247 at 8-9.)
Based on these descriptions, the Court concludes that the Union has provided Plaintiff with
adequate information in response to Instruction E. In particular, the Court finds that the Union has
given Plaintiff sufficient information to enable her to identify which interrogatories Ms. Clark
assisted in answering. However, the Court notes that interrogatories must be answered “under
oath,” Fed. R. Civ. P. 33(b)(3); and, it does not appear that the Union has verified the supplemental
information its counsel provided in response to Instruction E. Thus, although the Court will not
compel the Union to provide Plaintiff with any additional information responsive to this
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instruction, it will order the Union to verify the supplemental information its counsel has already
provided.
2.
Interrogatory No. 8
In Interrogatory No. 8, Plaintiff asks the Union to “[s]tate the name, address, and telephone
number of each and every person [the Union]1 will call to testify at the trial of this case, and as to
each person named state all facts to which that person will testify.” (Doc. 243 at 11.) In her
motion, Plaintiff claims that the Union’s answer to this interrogatory improperly provided “topics”
about which the witnesses will testify, and not “facts.” (Doc. 242 at 3.) The Union responds that
Plaintiff’s motion “is not clear” regarding how the Union’s answer is insufficient. (Doc. 247 at 9.)
Moreover, the Union concedes that Plaintiff eventually changed the phrase “all facts” to “principal
and material facts”; however, “[t]o the extent she viewed that change as a clarification of
Interrogatory [No.] 8, she did not give the Union a reasonable time to respond” to the clarification
before filing her motion to compel. (Id. at 9 n.6.)
The Court agrees that, as written, Interrogatory No. 8 is vague, overbroad, unduly
burdensome, and disproportionate to the needs of the case in seeking “all facts” about which each
of the Union’s witnesses will testify. The Court further finds that the Union interpreted and
answered this interrogatory reasonably by describing all factual “topics” about which its witnesses
will testify.
The Court also agrees that Plaintiff waited too long to offer her clarification regarding
principal and material facts for the Court to require the Union to supplement its answer on that
basis. In its response to Plaintiff’s motion to compel, the Union described the events leading up
1
As written, Interrogatory No. 8 refers to New Mexico Legal Aid, Inc.’s witnesses rather than the Union’s. (Doc. 243
at 11.) However, the parties appear to agree that this is a typographical error and that Plaintiff meant to ask about the
Union’s witnesses. (Id. at 11-12; see also Doc. 242 at 3, 16; Doc. 247 at 9.)
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to the filing of Plaintiff’s motion in considerable detail. (Doc. 247 at 2-6.) The most salient points
for purposes of Interrogatory No. 8 are: (a) Plaintiff first offered her clarification regarding
principal and material facts in a letter she e-mailed to the Union’s counsel on the afternoon of
Sunday, June 7, 2020; and, (b) Plaintiff filed her motion to compel on the morning of Wednesday,
June 10, 2020.2 (Doc. 242 at 16.) It would be patently unreasonable for the Court to require the
Union to supplement its answer based on a modification made two business days before Plaintiff
filed her motion to compel, even assuming the modification rendered the interrogatory reasonably
clear and proportional to the needs of the case, which it does not.3 The Court will therefore deny
Plaintiff’s motion to compel the Union to provide any additional information in response to
Interrogatory No. 8.
3.
Interrogatory No. 10
Interrogatory No. 10 asks the Union to “describe in detail and with specificity the facts [it]
will introduce at . . . trial . . . to support” each of the affirmative defenses asserted in its answer to
Plaintiff’s Amended Complaint, and to provide the name, address, and telephone number of each
witness who will testify regarding the affirmative defense. (Doc. 243 at 12.) Plaintiff contends
that, again, she subsequently “corrected ‘the facts’ with [‘]the principal and material facts[’]” in
this interrogatory.4 (Doc. 242 at 4.) According to Plaintiff, “[t]he Union’s answer provides a
2
Although Plaintiff’s letter to the Union’s counsel is dated June 5, 2020, she concedes that she did not successfully email its substance until June 7, 2020. (Doc. 242 at 15; Doc. 250 at 2-3.)
3
Plaintiff’s citation to Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403 (D. Kan. 1998), does not convince the Court
that Interrogatory No. 8, as modified, is reasonably clear and proportional. Hiskett holds that interrogatories may
“properly ask for the ‘principal or material’ facts which support an allegation or defense.” Id. at 405. However, the
decision expressly limits this holding to “[i]nterrogatories which do not encompass every allegation, or a significant
number of allegations” in the responding party’s pleadings. Id. Here, Plaintiff asks for the principal and material
facts to which all of the Union’s witnesses will testify, which clearly encompasses most or all of the Union’s defenses.
4
In her letter to the Union’s counsel e-mailed on June 7, 2020, Plaintiff offered to modify Interrogatory No. 8, but not
Interrogatory No. 10, to ask for “principal and material facts.” (Doc. 242 at 16.) It is thus unclear whether Plaintiff
actually offered to modify Interrogatory No. 10 before filing her motion to compel.
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narrative of why Plaintiff’s complaint should be dismissed, but fails to provide facts.” (Id.) In
response, the Union argues that “a narrative response that contain[s] facts” should “count as a
factual response.” (Doc. 247 at 9.)
The Union’s answer to Interrogatory No. 10 includes nearly three pages of mostly factual
narrative regarding its defenses. (Doc. 243 at 12-15.) The Court finds that this answer is
sufficiently responsive to Interrogatory No. 10. Plaintiff appears to believe that the Union should
have listed each of its affirmative defenses separately, and then separately described the facts
supporting each such defense. However, if Plaintiff wanted nine separate answers, i.e., one for
each of the Union’s affirmative defenses, (see Doc. 65 at 13), she should have asked nine separate
interrogatories. As it is, the Court finds that Plaintiff, as an attorney, can reasonably ascertain
which facts may apply to which affirmative defenses, and declines to order the Union to break
down its answer to Interrogatory No. 10 as Plaintiff wishes.
4.
Verification of Amended Responses
In her Notice of Errata, Plaintiff observes that the Union did not verify its Amended
Responses to Plaintiff’s First Set of Interrogatories to Union. (Doc. 243 at 2-3.) The Union
responds that it verified its original answers to Plaintiff’s First Set of Interrogatories to Union and
believed that this verification was sufficient because its amended answers included few changes
and no “significant” ones. (Doc. 247 at 10 & n.8.) As noted above, interrogatory answers must
be made “under oath.” Fed. R. Civ. P. 33(b)(3). However few and minor the Union’s substantive
changes to its answers were, Plaintiff is entitled to have them verified. The Court will therefore
order the Union to verify its Amended Responses to Plaintiff’s First Set of Interrogatories to
Union.
5.
Request for Production No. 10
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Request for Production No. 10 asks the Union to produce all documents and ESI “having
to do with Plaintiff’s discharge from [New Mexico Legal Aid, Inc. (“NMLA”)] and Union’s
grievance filed therefor.”5 (Doc. 243 at 21.) In her motion, Plaintiff argues that the Union’s
response to this request is incomplete because it has not produced responsive documents in Alicia
Clark’s possession. (Doc. 242 at 4-5.) The Union responds that it does not have to produce
documents in Ms. Clark’s possession, because Ms. Clark “resigned as grievance chair in 2014”
and “is not currently an agent of the Union.” (Doc. 247 at 11-12.) However, the Union cites to
no authority for the proposition that an organization need never produce documents in a former
agent’s possession, nor does it present any argument regarding its practical ability to obtain
responsive documents from Ms. Clark. (See id.)
Rule 34 requires the production of responsive documents and ESI in the responding party’s
“possession, custody, or control.” Fed. R. Civ. P. 34(a)(1) (emphasis added).
Courts have broadly construed control as ‘the legal right, authority, or practical
ability to obtain the materials sought upon demand[.]’ If a person, corporation, or
a person's attorney or agent can pick up a telephone and secure the document, that
individual or entity controls it.
Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 397 (D.N.M. 2018) (emphasis added)
(alterations omitted). “A party seeking production of documents bears the burden of establishing
the opposing party's control over those documents.” United States v. 2121 Celeste Rd. SW,
Albuquerque, N.M., 307 F.R.D. 572, 590 (D.N.M. 2015). However, “records which are normally
kept in the business of the party . . . are presumed to exist, absent a sworn denial, and a prima facie
case of control is all that must be established to justify issuance of the order” requiring their
production. Norman v. Young, 422 F.2d 470, 472–73 (10th Cir. 1970).
5
Interestingly, Plaintiff requests these documents by first referring to an interrogatory in which she asks the Union to
identify the “containers” in which it keeps documents and ESI regarding her discharge and discharge grievance, and
then requesting that the Union produce the specified “content” of these “containers.” (Doc. 243 at 6, 21.)
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Courts have found that, in some circumstances, an organization may have control over
documents in the possession of a former agent. See, e.g., Royal Park Investments SA/NV v.
Deutsche Bank Nat'l Tr. Co., No. 14-CV-04394 (AJN) (BCM), 2016 WL 5408171, at *5–*7
(S.D.N.Y. Sept. 27, 2016) (citing cases); In re Domestic Air Transp. Antitrust Litig., 142 F.R.D.
354, 356 (N.D. Ga. 1992); In re Folding Carton Antitrust Litig., 76 F.R.D. 420, 423 (N.D. Ill.
1977). Also, “[s]ome courts have required an employer to contact former employees to determine
whether they took responsive documents when they changed employment.” Cache La Poudre
Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 627 (D. Colo. 2007); see Exp.-Imp. Bank of
U.S. v. Asia Pulp & Paper Co., 233 F.R.D. 338, 341–42 (S.D.N.Y. 2005) (“Analyzing the practical
ability of corporations to obtain work-related documents from former employees, courts insist that
corporations, at the very least, ask their former employees to cooperate before asserting that they
have no control over documents in the former employees' possession.”). Ultimately, whether an
organization retains sufficient control over a former agent to be required to produce documents in
the former agent’s possession is a case-specific and “fact-intensive” question. Royal Park
Investments SA/NV, 2016 WL 5408171 at *9.
Here, it is apparent that the Union retains some measure of control over Ms. Clark, even
though she is no longer the Union’s grievance chair. The Court could speculate regarding why
this might be, e.g., because she acted as the Union’s agent “with respect to the events or
transactions at issue in the litigation,” or because she has a “continuing economic relationship”
with the Union as an employee of NMLA. Id. at *6. However, such speculation is beside the
point; whatever the reason, the Union’s continuing control is demonstrated by the fact that Ms.
Clark can be contacted in care of the Union’s counsel and was one of two individuals who supplied
the Union with the information in its interrogatory answers. (See, e.g., Doc. 247 at 9.) In these
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circumstances, it seems highly likely that, if the Union asked her to, Ms. Clark would give it copies
of any documents and ESI in her possession regarding Plaintiff’s discharge and discharge
grievance. At the very least, these circumstances justify requiring the Union to ask Ms. Clark for
such documents and ESI. The Court will therefore compel the Union to ask Ms. Clark, in good
faith, to provide it with copies of any documents and ESI in her possession responsive to Request
for Production No. 10, and to produce to Plaintiff any documents it obtains from Ms. Clark
pursuant to this good-faith request.
6.
Request for Production No. 11
Finally, Request for Production No. 11 asks the Union to produce documents and ESI
“having to do with the grievance filed by the Union concerning NMLA’s calculation and/or
application and/or handling of attorney comp time or flex time.”6 (Doc. 243 at 21-22.) In her
motion, Plaintiff contends that the Union has produced only one document responsive to this
request and asserts that the Union should have many more. (Doc. 242 at 8.) The Union responds
that, having received clarification from Plaintiff regarding the specific grievance to which the
request refers, it has agreed to produce any responsive documents it is able to locate. (Doc. 247 at
12; see Doc. 247-8 at 5.) The Court will therefore order the Union to make a good-faith effort to
locate and produce documents and ESI in its possession, custody, or control responsive to Request
for Production No. 11 within the time specified below.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Responses to Plaintiff’s
Second Discovery Requests to Union (Doc. 242) is GRANTED IN PART and DENIED IN PART
as follows:
6
Again, Plaintiff requests these documents by first referring to an interrogatory in which she asks the Union to identify
the “containers” in which it keeps documents and ESI regarding the grievance at issue, and then requesting that the
Union produce the specified “content” of these “containers.” (Doc. 243 at 8, 21-22.)
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1.
The motion is GRANTED insofar as the Union is hereby ordered to:
a.
Verify the supplemental information it has provided to Plaintiff in response
to Instruction E of Plaintiff’s First Set of Interrogatories to Union;
b.
Verify its Amended Responses to Plaintiff’s First Set of Interrogatories to
Union;
c.
Ask Alicia Clark to provide it with copies of any documents and ESI in her
possession responsive to Request for Production No. 10 of Plaintiff’s
Second Request for the Production of Documents to Defendant Union, and
produce copies of any documents and ESI it obtains from Ms. Clark as a
result of this request; and,
d.
Search for any documents and ESI in its possession, custody, or control
responsive to Request for Production No. 11 of Plaintiff’s Second Request
for the Production of Documents to Defendant Union, and produce copies
of any responsive documents and ESI it locates.
The Union is to supplement its responses to Plaintiff’s First Set of Interrogatories
to Union and Second Request for the Production of Documents to Defendant Union
in accordance with this Order no later than Wednesday, August 5, 2020.
2.
In all other respects, Plaintiff’s motion is DENIED.
3.
The Court declines to apportion the expenses the parties incurred in connection with
the motion pursuant to Federal Rule of Civil Procedure 37(a)(5)(C).
IT IS SO ORDERED.
_____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE
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