Huggins v. NC Dept of Administration et al
Filing
111
ORDER denying without prejudice 107 Motion to Compel - The parties are ORDERED to confer no later than November 13, 2012 to resolve these disputes. If any further discovery disputes in this matter are referred to the undersigned, sanctions shall b e imposed pursuant to Rule 37 of the Federal Rules of Civil Procedure. Any subsequent motion to compel shall specifically describe the results of the ordered discovery conference. Signed by Magistrate Judge William A. Webb on 10/25/2012. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:10-CV-414-FL
LINDA K. HUGGINS,
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Plaintiff,
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v.
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N.C. DEPT. of ADMINISTRATION, )
N.C. HUMAN RELATIONS
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COMMISSION,
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Defendant.
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________________________________ )
ORDER
This cause comes before the Court upon Plaintiff’s motion to compel. (DE-107).
Defendant has responded to this motion (DE-110), and the matter is now ripe for adjudication.
For the following reasons, Plaintiff’s motion is DENIED WITHOUT PREJUDICE.
Rule 26(b)(1) of the Federal Rules of Civil Procedure states, in relevant part, “[p]arties
may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim
or defense . . .” F.R.Civ.P. 26(b)(1). The standard for relevance during the discovery phase
differs from the standard employed at trial. In order to be relevant, the information “need not
be admissible at the trial” but only “reasonably calculated to lead to the discovery of
admissible evidence.” Id. During discovery, relevance is broadly construed “to encompass
any matter that bears on, or that reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.” Oppenheimer Fund. Inc. v. Sanders, 437 U.S. 340, 351
(1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). See also, Carefirst of Md., Inc.
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v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003) (stating that discovery
under the Federal Rules “is broad in scope and freely permitted”). “Over the course of more
than four decades, district judges and magistrate judges in the Fourth Circuit . . . have
repeatedly ruled that the party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion.” Kinetic Concepts, Inc., 268 F.R.D. 226, 243
(M.D.N.C. May 12, 2010) (collecting cases). “At the same time, ‘discovery, like all matters of
procedure, has ultimate and necessary boundaries .’ “ Oppenheimer Fund, Inc., 437 U.S. at 351
(quoting Hickman, 329 U.S. at 507). The instant motion shall now be analyzed based on
these precepts.
Plaintiff was employed by Defendant from May 1, 2004 until her termination on
January 30, 2009. In her complaint, Plaintiff alleges, inter alia, that in August 2006 she began
to experience discriminatory treatment from Director George Allison in the form of poor
evaluations, written warnings, and verbal assaults and threats.
The undersigned notes that this Court has already resolved several discovery and
evidentiary disputes in this case. (DE’s 29-32, 38-39, 43, 45, 46, 51, 54-59, 70, 75, 77, 80-88,
102-106). On October 3, 2012, this Court, inter alia, extended the deadline for deposing
expert witnesses until December 20, 2012.
(DE-106).
Notably, the Court specifically
indicated that it was not reopening the “other discovery deadlines, presently set for completion
by September 1, 2012 and fact depositions set for completion by October 1, 2012.”
(DE-104).
Regardless, Plaintiff served several discovery requests upon Defendant on July 27,
2012. (DE-108-1). Defendant responded to these requests on or about August 23, 2012.
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Id. Although these responses provided some discovery, Defendant also lodged a number of
objections to Plaintiff’s requests.
Id.
Defendant’s objections consisted primarily of
boilerplate language asserting that the discovery requests were “vague, burdensome, and
overly broad.” Id. Several courts in the Fourth Circuit have declared such objections
invalid, and, in some cases, said objections were deemed waived. Kinetic Concepts, Inc. ,
268 F.R.D. at 241 (collecting cases).
Plaintiff requested that Defendant supplement its responses on September 14, 2012.
Defendant did not do so before the deadlines for all non-expert discovery had expired, nor did
Plaintiff file her motion to compel prior to the expiration of those deadlines. Specifically,
Defendant did not supplement its responses until October 5, 2012. (DE-108-4). In its
supplemented responses, Defendant still recites stock phrases. However, some additional
details are provided. Notably, Defendant indicates that some of the materials would be
impossible, or prohibitively expensive, to retrieve. In addition, Defendant contends that some
of the requested materials either do not exist or have already been disclosed. Finally,
Defendant argues that some of the requested materials are privileged.
The instant motion to compel was filed on October 11, 2012. (DE-107). To reiterate,
this was after the deadlines for non-expert discovery had expired. Neither the face of
Plaintiff’s motion, nor its supporting memorandum substantively addresses the objections
contained in Defendant’s supplemented discovery responses. Although Plaintiff includes, as
she must, a certification that there was a good faith attempt to resolve this discovery dispute
without the intervention of this Court, the undersigned questions the diligence of this attempt.
Plaintiff concedes she filed that instant motion the day after receiving Defendant’s
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supplemented responses.
(DE-108, pg. 2).
There is no indication the parties further
conferred after the supplemented responses. Plaintiff argues that, “[i]n essence, Defendant
did not supplement any responses.” (DE-107, pg. 2). Clearly, however, Defendant more
fully explained its objections in the supplemented discovery responses. Indeed, Plaintiff
conspicuously notes that “[a] significant number of the objections set forth by
. . .
Defendant are believed to not be with substantial justification . . .” (emphasis added). Id.
This implies that at least some of the objections are with substantial justification, but that
Plaintiff could not be bothered to distinguish between the two to assist the Court. An
examination of the filings, and the entire docket in this matter, indicates any attempts to
resolve this dispute were likely cursory at best.
Finally, neither party has adequately briefed this matter. As noted above, Plaintiff was
aware of Defendant’s objections, yet makes no substantive attempt to address them in her
motion and memorandum. (DE’s 107-108). While Plaintiff is correct that Defendant bears
the burden of persuasion, she nonetheless should have responded to Defendant’s objections
with relevant precedent. Rather, Plaintiff merely argues, with virtually no elaboration, that
the requested material is relevant. Such an argument provides little assistance to the Court
where, as here, Defendant argues, inter alia, the requested materials have already been
provided or no longer exist. Conversely, Defendant asserts, with little elaboration, that it
would be unduly burdensome to further supplement its responses. This argument contains
virtually no discussion of relevant case law pertaining to what is and what is not unduly
burdensome. Likewise, neither party has sufficiently addressed the issue of privilege, and it
is unclear whether Defendant has provided a privilege log as required by Rule 26(b)(5) of the
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Federal Rules of Civil Procedure.
In short: 1) Defendant arguably waived its objections in its first response by using
boilerplate language; 2) the instant motion is arguably untimely since non-expert discovery
has closed; 3) any attempts to resolve this dispute prior to the motion to compel appear
cursory; and 4) neither party has adequately briefed the issues. At minimum, the parties have
violated the spirit of the Federal Rules of Civil Procedure. As noted in Kinetic Concepts, Inc.:
“Rule 26(g) imposes an affirmative obligation to engage in pretrial
discovery in a responsible manner that is consistent with the spirit and
purposes of Rules 26 through 37.” Fed.R.Civ.P. 26 advisory committee's
notes, 1983 Amendment, Subdivision (g) (emphasis added). “[T]he
spirit of the [R]ules is violated when advocates attempt to use discovery
tools as tactical weapons rather than to expose the facts and illuminate
the issues....” Fed.R.Civ.P. 26 advisory committee's notes, 1983
Amendment. See also Mills, 259 F.R.D. at 130 (“The civil discovery
process is to be engaged in cooperatively.”); Wagner v. St. Paul Fire &
Marine Ins. Co., 238 F.R.D. 418, 422 (N.D.W.Va. 2006)
(“Gamesmanship to evade answering [discovery requests] is not
allowed.”)
The certification requirement in Rule 26(g) thus “obliges each attorney
to stop and think about the legitimacy of a discovery request, a response
thereto, or an objection.” Fed.R.Civ.P. 26 advisory committee's notes,
1983 Amendment, Subdivision (g) (emphasis added). See also id. (“The
signing requirement means that every discovery request, response, or
objection should be grounded on a theory that is reasonable under the
precedents or a good faith belief as to what should be the law.”).
Moreover, Rule 26(g) “requires that the attorney make a reasonable
inquiry into the factual basis of his response, request, or objection.” Id.
By signing a Rule 26(g) certification, an attorney “certifies that [he or
she] has made a reasonable effort to assure that the client has provided
all the information and documents available to [the client] that are
responsive to the discovery demand.” Id. (emphasis added). See also
Fed.R.Civ.P. 37 advisory committee's notes, 1993 Amendments,
Subdivision (a) (“[Discovery requests] should not be read or interpreted
in an artificially restrictive or hypertechnical manner to avoid disclosure
of information fairly covered by the discovery request, and to do so is
subject to appropriate sanctions under [ Rule 37(a) ].”).
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“If a certification violates this rule without substantial justification, the
court, on motion or on its own, must impose an appropriate sanction on
the signer, the party on whose behalf the signer was acting, or both. The
sanction may include an order to pay the reasonable expenses, including
attorney's fees, caused by the violation.” Fed.R.Civ.P. 26(g)(3)
(emphasis added). This provision “mandates that sanctions be imposed
on attorneys who fail to meet the standards established in the first portion
of Rule 26(g).” Fed.R.Civ.P. 26 advisory committee's notes, 1983
Amendment, Subdivision (g). See also id. (“Rule 26(g) is designed to
curb discovery abuse by explicitly encouraging the imposition of
sanctions.”); . . .
Despite the unambiguous dictates of the Rules (including Rule 26(g))
and related local rules (like this Court's Local Rule 26.1(b)(1)) that
require attorneys to conduct discovery in a cooperative fashion, courts
continue to find that “[h]ardball discovery ... is still a problem in some
cases ....” Network Computing Servs. Corp. v. Cisco Sys., Inc., 223
F.R.D. 392, 395 (D.S.C.2004) (noting that such conduct “is costly to our
system and consumes an inordinate amount of judicial resources”). See
also Frontier-Kemper, 246 F.R.D. at 530 (“[T]his court encounters
discovery disputes involving boilerplate and other inappropriate
objections far too frequently.”); Jayne H. Lee, Inc., 173 F.R.D. at 656
(“As with interrogatories, answers to requests for production of
documents are also subject to frequent abuse during pretrial
discovery.”).
Kinetic Concepts, Inc., 268 F.R.D. at 243 (footnotes omitted).
In this posture, Plaintiff’s motion to compel (DE-107) is DENIED WITHOUT
PREJUDICE. The parties are ORDERED to confer no later than November 13, 2012 to
resolve these disputes.
If any further discovery disputes in this matter are referred to the
undersigned, sanctions shall be imposed pursuant to Rule 37 of the Federal Rules of Civil
Procedure. See, Biovail Corp. v. Mylan Labs., Inc., 217 F.R.D. 380, 382 (N.D.W.Va. May 2,
2003)( “[t]he great operative principle of [Rule 37] is that the loser pays”)(quotation omitted).
Any subsequent motion to compel shall specifically describe the results of the ordered
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discovery conference. Likewise, any argument for, or objection to, discovery shall: 1)
specifically reference the request at issue; 2) describe in detail what has already been
disclosed; and 3) be supported with relevant precedent. Given that non-expert discovery has
closed, the undersigned takes no position whether any future motion to compel would be
deemed timely. Finally, Defendant is admonished that it has the burden of persuasion in
resisting discovery, and few of its current objections would meet that burden.
DONE AND ORDERED in Chambers at Raleigh, North Carolina on Thursday, October 25, 2012.
____________________________________
WILLIAM A. WEBB
UNITED STATES MAGISTRATE JUDGE
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