Margaret McGuinn v. J.L Gray Company, Inc.

Filing 67

ORDER by Magistrate Judge Kevin R. Sweazea granting 60 Motion to Compel. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, ex rel.
MARGARET MCGUINN,
Plaintiff,
v.

No. 2:20-cv-31 KG/KRS

THE J.L. GRAY COMPANY, et al.,
Defendants.
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL (DOC. 60)
THIS MATTER is before the Court on Plaintiff’s Motion to Compel, filed February 2,
2022. (Doc. 60). Defendants filed a response to the Motion to Compel on February 21, 2022,
and Plaintiff filed a reply on March 4, 2022. (Docs. 63 and 64). Having reviewed the parties’
briefing on the motions, the record of the case, and relevant law, the Court will grant the Motion
to Compel, as set forth below.
I.

Background
Plaintiff alleges that Defendants, who are the owners, managers, or developers of

buildings in New Mexico, Colorado, Texas, Utah, and Arizona, made false claims in order to
secure funding from the U.S. Department of Agriculture Rural Development program
(“USDA/RD”). (Doc. 60) at 2. Specifically, Plaintiff claims that Defendants violated the False
Claims Act by falsely certifying that they were in compliance with Section 504 of the
Rehabilitation Act, the Fair Housing Act, and the Americans with Disabilities Act, in order to
receive USDA/RD funding for the construction of apartment buildings and for rental subsidies.
Id. at 2-4.

Plaintiff states that she sought discovery from both the USDA and Defendants in order
“to maximize efficiency and ease the relative discovery burden on the Parties.” Id. at 5. On July
20, 2021, she served a request to the USDA pursuant to 7 C.F.R. § 1.215, which was later
converted to a Freedom of Information Act (“FOIA”) request. Two months later, on September
21, 2021, Plaintiff served her First Set of Requests for Production and Interrogatories on
Defendants, seeking several categories of documents, including those that Plaintiff had asked for
in her FOIA request. Id. On October 25, 2021, the parties met to discuss Plaintiff’s discovery
requests and agreed that the portions of the discovery requests that overlapped with the FOIA
request would be deferred pending the USDA’s response, and that Defendants would respond to
the remaining discovery requests and interrogatories by November 24, 2021. Id. at 6. On
November 24, 2021, Defendants provided only written responses to Plaintiff, which Plaintiff
contends were deficient. Id. The parties met again on December 7, 2021, and made two
agreements: (1) that within one week Defendants would produce documents responsive to RFP
Nos. 13, 17-20, and 22-23, respond to Interrogatories 2-4 and 9, and address errors with
Defendants’ responses to the interrogatories; and (2) that by January 10, 2022, Defendants would
produce documents responsive to RFP Nos. 8 and10, and respond to Interrogatories 1, 5, 7-8, and
10-11, limited to a subset of thirty-five developments (out of the seventy developments owned,
managed, or developed by Defendants), and to a timeframe from January 2010 to September
2021. Id. at 7, 10.
In her Motion to Compel, Plaintiff states that as of the date the motion was filed,
Defendants have completely failed to produce any documents and failed to provide complete
responses to the interrogatories. Id. at 7, 10-11. Plaintiff asks the Court to compel Defendants to
produce documents in response to Requests for Production (“RFP”) Nos. 8, 10, 13, 17-20 and
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22-23, and to fully respond to Interrogatories 1-5 and 7-11. Id. at 9-10. Additionally, Plaintiff
contends that Defendants have improperly invoked Rule 33(d) as an alternative to answering the
interrogatories and have failed to provide a signature by the party answering the interrogatories,
and that Defendants’ General Objections (other than General Objections 1 and 2) are
impermissibly general and should be deemed waived. Id. at 11-14.
In response, Defendants state that information about Plaintiff’s FOIA request served on
the USDA had been withheld from Defendants, which “impeded Defendants’ counsel’s ongoing
ability to reliably assess the scope and timing of review and production from which the
responsive information for the interrogatories and requests for production can be found.” (Doc.
63) at 1-2. Defendants note that the USDA has determined that there are 523,625 pages of
documents responsive to Plaintiff’s FOIA request and that production of those pages will take
over 300 days at a cost to Plaintiff of over $200,000. Id. at 2; (Doc. 60) at 7, n.5; (Doc. 63-2).
Defendants state that they would not have agreed to the production schedule and scope if they
had been included in communications regarding Plaintiff’s FOIA request to the USDA. (Doc.
63) at 2 (“Plaintiff’s counsel’s complete exclusion of Defendants’ counsel from communications
regarding the response to the July subpoena to USDA for substantially the same documents led
to these now-obviously ill-advised agreements as to timing and scope.”).
Nevertheless, Defendants state that by March 14, 2022, they will supplement their
discovery responses, provide verification of the interrogatory responses, provide a rolling
production timeline, and begin providing documents. Id. at 3. Defendants state that the
production will be subject to General Objections 1 and 2, which limit Defendants’ production to
a ten-year timeframe from January 1, 2010 forward, and to thirty-five developments. Id.

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Defendants argue that their remaining General Objections should remain for now and that they
will clarify their applicability to discovery responses as needed. Id. at 4-5.
In reply, Plaintiff argues that the USDA’s estimates regarding producing its own
documents are not relevant to Defendants’ production of their records, and disputes that the
USDA’s estimate is an accurate representation of the actual number of responsive documents.
(Doc. 64) at 1-2. Plaintiff also states that she was upfront with Defendants’ counsel about the
FOIA request. Id. at 2. Plaintiff reiterates that she is seeking production of documents and
interrogatory responses subject to General Objections 1 and 2, and that Defendants’ remaining
objections should be deemed waived because they are impermissibly general. Id. at 2-3.
II.

Legal Standard
Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery and provides

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.” Fed. R. Civ. P. 26(b)(1).
Relevant evidence is that which “has any tendency to make a fact more or less probable than it
would be without the evidence; and the fact is of consequence in determining the action.” Fed.
R. Evid. 401. However, “[i]nformation within [the] scope of discovery need not be admissible in
evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1); see Regan-Touhy v. Walgreen Co., 526
F.3d 641, 649 (10th Cir. 2008) (“Under our rules, parties to civil litigation are given broad
discovery privileges.”). Nonetheless, the Court is not required to permit the parties to engage in
fishing expeditions in the hope of supporting their claims or defenses. See Landry v. Swire
Oilfield Servs., L.L.C., 323 F.R.D. 360, 375 (D.N.M. 2018).
Key considerations in determining the scope of permissible discovery include “the
importance of the issues at stake in the action, the amount in controversy, the parties’ relative
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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). Ultimately, “[c]ounsel bears the responsibility of
propounding proper discovery requests, and expecting counsel to fulfill this responsibility is
neither capricious nor unfair.” Punt v. Kelly Services, 862 F.3d 1040, 1047 (10th Cir. 2017).
Parties may propound interrogatories and requests for production pursuant to Federal
Rules of Civil Procedure 33 and 34, provided that such requests are within the scope of Rule
26(b). See Fed. R. Civ. P. 33(a); Fed. R. Civ. P. 34(a). Where one party improperly fails to
respond to another party’s discovery requests, the requesting party may move to compel
disclosure and for appropriate sanctions. Fed. R. Civ. P. 37(a)(3)(A). “[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.

Discussion
Plaintiff seeks complete responses to RFP Nos. 8, 10, 13, 17-20 and 22-23, and

Interrogatories 1-5 and 7-11. (Doc. 60) at 9-10. These discovery requests were served on
Defendants on September 21, 2021, and Defendants’ responses and objections were due thirty
days later. See Fed. R. Civ. P. 33(b)(2) and 34(b)(2). Plaintiff agreed to multiple extensions of
this deadline, and on November 24, 2021, Defendants provided written responses to the requests
but failed to produce any documents. See (Doc. 60) at 2, 7; (Doc. 60-2). Defendants contend
that they were “impeded” in providing timely discovery responses because of Plaintiff’s FOIA
request served on the USDA. (Doc. 63) at 1-2.
Defendants fail to explain how Plaintiff’s FOIA request, served on a third party,
prevented Defendants from producing responsive documents and responding to interrogatories
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regarding their own businesses. While Defendants state they would not have agreed to the
timing and scope of production if they had known more about Plaintiff’s FOIA request,
Defendants acknowledge they knew about Plaintiff’s FOIA request one week after it was served
on the USDA, and Plaintiff provided Defendants correspondence between Plaintiff and the
USDA within four days of receiving Defendant’s request for it. Id. at 1; (Doc. 64) at 2. Indeed,
while Defendants assert they would not have agreed to the timing and scope of production if they
had known about the USDA’s December 16, 2021 response to Plaintiff’s FOIA request,
Defendants agreed to the scope and timing of production in October and November 2021, before
the response was sent. See (Doc. 64) at 5-6. Moreover, Plaintiff explains that the USDA’s
estimate of the cost and extent of production is irrelevant to Defendants’ production because the
USDA keeps paper files in various locations across the country, so “these estimates are entirely
idiosyncratic to the USDA.” (Doc. 64) at 2. The Court agrees and finds that Plaintiff’s FOIA
request to the USDA does not excuse Defendants’ delay in complying with their discovery
obligations.
Despite their explanation as to why they have not fully responded to Plaintiff’s discovery
requests, Defendants state in response to the Motion to Compel that by March 14, 2022, they will
supplement their discovery responses, provide verification of the interrogatory responses,
provide a rolling production timeline, and begin providing documents subject to General
Objections 1 and 2. (Doc. 63) at 3; (Doc. 60-2) at 3-4 (General Objection 1, limiting the
timeframe for discovery to January 1, 2010 through January 10, 2020, and General Objection 2,

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limiting the scope of discovery to thirty-five developments).1 Plaintiff does not oppose
Defendants’ proposal to produce documents and interrogatory responses subject to General
Objections 1 and 2. See (Doc. 64) at 2 (stating “the Parties have not reached an impasse
regarding Defendants’ General Objections 1 or 2” and “Plaintiff has agreed to allow production
to begin on a more limited set of documents”). Accordingly, the issues remaining before the
Court are whether Defendants’ General Objections 3-11 are impermissibly vague, and whether
Defendants have improperly invoked Rule 33(d) as an alternative to answering several
interrogatories.
A. General Objections
Federal Rule of Civil Procedure 33 provides that “[e]ach 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). Where the responding party objects, the grounds for such objection “must be stated
with specificity” and objections that are not timely made are waived. Fed. R. Civ. P. 33(b)(4).
Similarly, Rule 34 provides that a proper response to a request for production of documents
“must either state that inspection and related activities will be permitted as requested or state
with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P.
34(b)(2)(B). In doing so, the party must also “state whether any responsive materials are being
withheld” on the basis of the objection. Fed. R. Civ. P. 34(b)(2)(C).

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The Court’s docket reflects that on March 14, 2022, Defendants filed a Certificate of Service
stating they served Supplemental Responses and Objections to Plaintiff’s First Set of
Interrogatories and Requests for Production on that date. (Doc. 66). The parties have not notified
the Court as to whether this production resolved any of the issues raised in Plaintiff’s Motion to
Compel.
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Plaintiff challenges Defendants’ General Objections 3-11 as being impermissibly vague.
Plaintiff is correct that Defendants’ General Objections are impermissible under Rules 33 and 34
and that Defendants’ reference to their general objections in response to discovery requests is
improper because it fails to set forth the specific grounds on which they are objecting. See
Heuskin v. D&E Transp., LLC, 2020 WL 1450575, at *2 (D.N.M.) (“Boilerplate, generalized
objections are inadequate and tantamount to not making any objection at all.”); King v.
Gilbreath, 2015 WL 12866984, at *1 (D.N.M.) (explaining that “the use of general, reserved
objections is disfavored” because Rules 33 and 34 “require that the grounds for objecting to an
interrogatory or request for production be particularized to that request”) (citations omitted);
Matter of Caswell Silver Family Tr. Created Under the Terms of the Caswell Silver Revocable
Tr. U/A Dated Nov. 21, 1985, 2012 WL 13013063, at *3 (D.N.M.) (“‘[G]eneral objections’ are
not contemplated by the Rules and, therefore, are null.”). Instead, a proper objection is one that
is tailored to the individual discovery request, not a conclusory objection such as “vague,”
“ambiguous,” “overly broad” or “unduly burdensome” which neglects to say why the discovery
request is subject to that objection.
Based on the foregoing, the Court grants Plaintiff’s motion as to her contention that
Defendants’ General Objections 3-11 are improper and finds that those objections have been
waived because they were not properly raised in response to the discovery requests. Defendants
shall provide supplemental responses to each interrogatory and RFP providing any information
or documents that were withheld on the basis of General Objections 3-11.
B. Federal Rule of Civil Procedure 33(d)
Plaintiff also objects to Defendants’ reliance on Rule 33(d) as an alternative response to
providing answers to Interrogatories 1-4 and 7-11. (Doc. 60) at 11. Rule 33(d) states:
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If the answer to an interrogatory may be determined by examining,
auditing, compiling, abstracting, or summarizing a party’s business
records (including electronically stored information), and if the
burden of deriving or ascertaining the answer will be substantially
the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient
detail to enable the interrogating party to locate and identify
them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to
examine and audit the records and to make copies,
compilations, abstracts, or summaries.
Fed. R. Civ. P. 33(d). In response to Interrogatories 2, 3, 4, and 9, Defendants directed Plaintiff
to documents that they had not produced, and in response to Interrogatories 1, 7-8, and 10-11,
Defendants directed Plaintiff to a hypothetical, prospective document production by the USDA.
See (Doc. 60-2) at 20-25. These responses are deficient because Defendants failed to produce
the documents with the responsive information. See Fed. R. Civ. P. 33(d)(1) (allowing a party to
reference business records to answer an interrogatory, but requiring “sufficient detail to enable
the interrogating party to locate and identify [the records] as readily as the responding party
could”). Moreover, Defendants may not rely on a third party’s records to respond to an
interrogatory. See Fed. R. Civ. P. 33(d) (providing that a party may respond to an interrogatory
by specifying “a party’s business records” to be reviewed) (emphasis added); Pulsecard, Inc. v.
Discover Card Services, Inc., 1996 WL 397567, at *4 (D. Kan. 1996) (“[A party] may not use
Rule 33(d), of course, if the … documents are not its own business records.”). Therefore, the
Court finds that Defendants’ reliance on Rule 33(d) in response to Plaintiff’s interrogatories is
improper and Defendants shall revise their answers in compliance with Rule 33.

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IV.

Conclusion
For the foregoing reasons, the Court finds that Defendants have failed to timely and fully

respond to Plaintiff’s discovery requests. The Court will require Defendants to provide
supplemental responses to all disputed RFPs and Interrogatories in compliance with Rules 33
and 34, including Rule 33(b)(5)’s signature requirement. Fed. R. Civ. P. 33(b)(5) (“The person
who makes the answers must sign them, and the attorney who objects must sign any
objections.”). The Court notes that Defendants have proposed a rolling production, which
Plaintiff does not appear to oppose. Nevertheless, Plaintiff asks for immediate production of the
two sets of discovery that Defendants promised and failed to produce by November 24, 2021 and
January 10, 2022. Therefore, the Court will order that within fifteen days, Defendants shall: (1)
provide complete responses to RFP Nos. 13, 17-20, and 22-23, and Interrogatories 2-4, and 9;
and (2) shall provide responses to RFP Nos. 8 and 10, and Interrogatories 1, 5, 7-8, and 11-12,
limited to thirty-five developments from January 2010 to January 2020. Defendants shall fully
respond to all remaining discovery requests, as set forth above, within thirty days. The parties
may agree to a rolling production within these deadlines.
The Court further notes that under Rule 37(a)(5), when a motion to compel is granted or
discovery is provided after the motion is filed, the party whose conduct necessitated the motion,
after having an opportunity to be heard, must pay the moving party’s reasonable expenses
incurred in making the motion. Here, however, Plaintiff did not ask the Court to award her
expenses, so Defendants have not had an opportunity to be heard on the issue. The Court will
not award expenses at this time but will consider a motion for expenses relating to this Motion to
Compel if Plaintiff chooses to file one.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel, (Doc. 60), is
GRANTED. Defendants shall provide supplemental interrogatory responses and produce
documents as follows:
1. No later than fifteen days after the entry of this Order, Defendants shall provide
complete responses to RFP Nos. 13, 17-20, and 22-23, and Interrogatories 2-4, and 9;
2. No later than fifteen days after the entry of this Order, Defendants shall provide
responses to RFP Nos. 8 and 10, and Interrogatories 1, 5, 7-8, and 11-12, limited to
documents on thirty-five developments from January 2010 to January 2020; and
3. No later than thirty days after the entry of this Order, Defendants shall fully respond
to all remaining discovery requests, as set forth above.
IT IS SO ORDERED.

___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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