Davis v. Western Carolina University et al
Filing
28
ORDER granting in part and denying as moot in part 24 Motion to Compel. Signed by Magistrate Judge Dennis Howell on 2/10/2015. (nv)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
2:14cv6
JAMES D. DAVIS,
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)
Plaintiff,
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v.
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WESTERN CAROLINA UNIVERSITY, )
THE UNIVERISITY OF NORTH
)
CAROLINA,
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Defendants.
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___________________________________ )
ORDER
Pending before the Court is the Motion to Compel [# 24]. Plaintiff moves
to compel Defendants to provide the information required by Rule 26(a)(1)(A)(i)
of the Federal Rules of Civil Procedure and to provide complete answers to certain
interrogatories. In response to the Motion to Compel, Defendants failed to offer
any legal argument supported by citations to legal authority. Upon a review of the
record and the relevant legal authority, the Court GRANTS in part and DENIES
as moot in part the Motion to Compel [# 24].
I.
Legal Standard
Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
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reasonably calculated to lead to the discovery of admissible evidence.” Id. Where
a party fails to respond to an interrogatory or a request for production of
documents, the party seeking discovery may move for an order compelling an
answer to the interrogatories or the production of documents responsive to the
request. Fed. R. Civ. P. 37(a)(3)(B). An incomplete disclosure, answer, or
response is treated as a failure to disclose, answer, or respond. Fed. R. Civ. P.
37(a)(4). “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. v. ConvaTec Inc., 268 F.R.D. 226,
243 (M.D.N.C. 2010) (collecting cases); Mainstreet Collection, Inc. v. Kirkland’s,
Inc., 270 F.R.D 238, 241 (E.D.N.C. 2010); Billips v. Benco Steel, Inc., No.
5:10cv95, 2011 WL 4005933 (W.D.N.C. Sept. 8, 2011) (Keesler, Mag. J.).
II.
Analysis
A party responding to an interrogatory must either object or answer each
interrogatory separately and fully in writing under oath. Fed. R. Civ. P. 33(b)(3).
The grounds to any objection must be stated with specificity. Fed. R. Civ. P.
33(b)(4). “A mere statement by the responding party that an interrogatory or a
document production request is ‘overly broad, burdensome, oppressive, and
irrelevant’ does not suffice as a specific objection.” Brown v. Blue Cross and Blue
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Shield of Ala., Civil Action No. 3:13-CV-121-GCM, 2014 WL 3519100, at *5
(W.D.N.C. Jul. 15, 2014) (Mullen, J.) (internal quotation and citation omitted).
Rule 33(d), however, provides an exception to Rule 33(b)(3)’s requirements in
limited circumstances. Pursuant to Rule 33(d), a party may answer an
interrogatory by referencing business records where an “answer to an interrogatory
may be determined by examining . . . a party’s business records . . . and if the
burden of deriving . . . the answer will be substantially the same for either party . . .
.” The responding party, however, must specify the business records to be
reviewed “in sufficient detail to enable the interrogating party to locate and
identify them as readily as the responding party could . . . .” Fed. R. Civ. P.
33(d)(1). Here, Defendants have failed to answer Plaintiff’s interrogatories fully.
As a threshold matter, the boilerplate objections set forth by Defendants are
not sufficient state a specific objection under Rule 33(b)(4). See Anderson v.
Caldwell Cnty. Sheriff’s Office, No. 1:09cv423, 2011 WL 2414140, at *5
(W.D.N.C. Jun. 10, 2011) (Howell, Mag. J.). Moreover, the answers contained in
Defendants’ Response to Plaintiff’s First Interrogatories and their Supplemental
Response to Plaintiff’s First Interrogatories fail to satisfy Rule 33’s requirement to
answer each interrogatory fully in writing. And Defendants have failed to set forth
any legal authority demonstrating that they may rely on Rule 33(d) to answer
Plaintiff’s Interrogatories, much less that Defendants satisfied the requirements of
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Rule 33(d). Defendants must do more than offer generic references to other
documents to satisfy Rule 33(d). Anderson, 2011 WL 2413140, at *4; Brown,
2014 WL 3519100, at *6. Accordingly the Court GRANTS the Motion to Compel
as to Interrogatories No. 3-10, 14-15, 17-19, 21-22, 25-26. The Court DIRECTS
Defendants to answer each of these interrogatories fully in writing within ten (10)
days of the entry of this Order. The Court also GRANTS the Motion to Compel as
to Interrogatory No. 1 and DIRECTS Defendants to fully answer Interrogatory
No. 1 and to supplement their Rule 26(a)(1)(A)(i) disclosures within ten (10) days
of the entry of this Order.
As to Interrogatory No. 2, the Court DENIES as moot the Motion to
Compel. Defendants had until November 1, 2014, to disclose any expert witness
and provide Plaintiff with the required expert reports. (Order, Aug. 5, 2014.) If
Defendants or Plaintiff failed to disclose their expert within the required time
period, they will be excluded from calling any such expert witnesses at trial to
testify. As such, either Defendants have previously provided the relevant
information requested by Interrogatory No. 2, or no such information exists
because Defendants will be excluded from calling an expert witness at trial.
To the extent that Defendants rely on the attorney client privilege or any
other applicable privilege, the Court DIRECTS Defendants, to the extent that they
have not already done so, to provide Plaintiff with a privilege log that complies
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with the requirements of the Federal Rules within ten (10) days of the entry of this
Order. See Fed. R. Civ. P. 26(b)(5)(A); Synovus Bank v. Karp, Civil Nos. 1:10-cv172, et al., 2013 WL 3927604 (W.D.N.C. Jul. 29, 2013) (Howell, Mag. J.). The
privilege log must list every responsive document that was withheld from
production based on the assertion of the attorney-client privilege, the work product
doctrine, or any other applicable privilege. The Court will deem Defendants to
have waived the applicable privilege to any document not included on the privilege
log.
Finally, the Court AWARDS Plaintiff his reasonable expenses, including
attorney’s fees, in making the Motion to Compel. See Fed. R. Civ. P. 37(a)(5)(A).
Defendants failed to demonstrate in response to the Motion to Compel that their
failure to fully answer Plaintiff’s interrogatories was substantially justified, and the
Court finds no other circumstances that would make an award of expenses unjust
in this case. The Court DIRECTS the parties to CONFER in an attempt to
resolve the amount of reasonable expenses incurred by Plaintiff. If the parties are
unable to resolve the amount of fees within ten (10) days of the entry of this Order,
Plaintiff shall file an accounting of its expenses, including attorney’s fees incurred
as a result of the filing and presentation of the Motion to Compel, by February 24,
2015. Plaintiff should also submit affidavits setting forth the number of hours
counsel reasonably expended filing the Motion to Compel, the hourly rate charged,
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and the prevailing market rate in the relevant community. See Robinson v. Equifax
Information Servs., LLC, 560 F.3d 235, 243–244 (4th Cir.2009); Neves v. Neves,
637 F. Supp. 2d 322, 340 (W.D.N.C.2009) (Reidinger, J.); Fender v. Toys-R-US –
Delaware, Inc., No. 1:13cv24, 2013 WL 3010718 (W.D.N.C. Jun. 18, 2013)
(Howell, Mag. J.).
III.
Conclusion
The Court GRANTS in part and DENIES as moot in part the motion to
Compel [# 24].
Signed: February 10, 2015
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