Engineers Joint Welfare Fund et al v. C. Destro Development Co., Inc. et al

Filing 34

DECISION AND ORDER re 32 Letter Motion from Jennifer A. Clark, Esq. IT IS HEREBY ORDERED that plaintiffs' motion to compel, to hold defendants in contempt and for sanctions is DENIED. Signed by US Magistrate Judge Andrew T. Baxter on 7/25/2012. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
ENGINEERS JOINT WELFARE FUND, et al.

No. 5:10-cv-474
(NPM/ATB)

Plaintiffs,
v.
C. DESTRO DEVELOPMENT CO., INC., et al.,
Defendants.
_________________________________________
JENNIFER A. CLARK, ESQ., for Plaintiffs
BRIAN P. FITZGERALD, ESQ., for Defendants
ANDREW T. BAXTER, U.S. MAGISTRATE JUDGE
DECISION AND ORDER
Presently before this court is plaintiff’s letter motion (Dkt. No. 32) to compel
further responses to written discovery requests, to hold defendants in contempt for
inadequate discovery responses, and for discovery sanctions, including attorneys’ fees.
Defendants filed a letter in opposition to plaintiffs’ motions. (Dkt. No. 33). The court
conducted a stenographically-recorded, telephonic discovery conference on July 24,
2012. Based upon the written submissions and the arguments of counsel, and for the
reasons stated during the discovery conference, this court denies plaintiffs’ motions.1

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The court notes that, during the conference, the defendants agreed to provide, by August
24, 2012, formal Rule 26 mandatory disclosures, a renewed demand for which plaintiffs made in
their July 12, 2012 letter motion. The court also directed defense counsel to confirm that
defendants’ accountants had no records responsive to plaintiffs’ first set of interrogatories, #4.

The plaintiffs’ primary objection to defendants’ responses to the second set of
interrogatories is that some of the responses directed plaintiffs to a group of business
records purportedly containing the requested information, rather than supplying
written answers. Fed. R. Civ. P. 33(d) allows a party to respond to interrogatories in
this fashion if the burden of ascertaining the answer from the documents identified
will be substantially the same for either party. Although neither party provided the
court with the particular records referenced in defendants’ interrogatory answers, the
court has concluded that the defendants’ supplemental responses are adequate, if
barely so. Moreover, the plaintiffs clearly intend to examine and audit the records
provided by defendants in response to the interrogatories, as well as substantial
additional records which defense counsel has agreed to make available to the auditors.
Because the plaintiffs’ audit will fill in any perceived gaps in defendants’
interrogatory responses, the court finds that it would be a waste of the resources of the
parties and the court to require the defendants to further supplement the interrogatory
responses to which plaintiff has objected. Having denied plaintiffs’ motion to compel
further responses to its interrogatories, the motions to hold defendants in contempt and
for discovery sanctions should also be denied.
WHEREFORE, IT IS HEREBY ORDERED that plaintiffs’ motion to
compel, to hold defendants in contempt, and for sanctions (Dkt. No. 32) is DENIED.
Dated: July 25, 2012

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