Howard et al v. Segway, Inc.

Filing 57

OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 34 Motion to Compel; granting in part 41 Motion for Attorney Fees (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BRIAN C. HOWARD, M.D., and
SUZANNE HOWARD,
Plaintiffs,
v.
SEGWAY, INC.,
Defendant.

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Case No. 11-CV-688-GKF-PJC

OPINION AND ORDER
This case concerns a March 2008 accident involving a Segway transporter in
which Plaintiff Brian Howard was allegedly injured while visiting Disneyworld with
his family. Dr. Howard’s wife, Suzanne, asserts claims derivative of her husband’s
injuries. Plaintiffs brought this manufacturer product liability case alleging design
defect, negligence, etc. by Segway. This lawsuit was filed in November 2011. Discovery
problems began in July 2012, when Plaintiffs’ counsel sent Defendant’s counsel a letter
seeking supplementation of Defendant’s responses to document requests that had been
served eight months earlier. Defendant’s failure to adequately respond to the letter led
to the filing of a Motion to Compel Supplementation of Discovery [Dkt. No. 34] in
November 2012 and a related Motion for Attorney Fees [Dkt. No. 41] in January 2013.

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I.
THE CORE OF THE PROBLEM
In our electronic, internet-based world, it is often said that whatever issue
confronts us, “There’s an App for that.”1 If so, some Apps are fatally flawed and should
be recalled. Apparently, Apps have been developed to assist attorneys in drafting and
responding to Requests for Production of Documents. The App for document requests
generates requests such as “Produce all documents … related to or referring to, in
anyway whatsoever, any communications with any person whatsoever, including but
not limited to …, related to or concerning….whatsoever….”
The App for discovery responses generally:
(1) Responds to every request with “Objection.”
(2) Follows with boilerplate objection language, eg., “vague, over-broad, unduly
burdensome, not reasonably calculated to lead to discovery of admissible
evidence,” but doesn’t indicate how any of these boilerplate objections
specifically apply to the request at hand.
(3) Concludes: “Without waiving these objections, see documents A, B and C.”2
Consider this Order the recall notice for both of these Apps. They don’t work.
Use may subject attorneys to sanctions under Fed. R. Civ. P. 37. If you have these Apps
loaded on your firm network to provide a “go by” in preparing discovery requests,
responses or objections, delete them. Now.

The phrase “There’s an App for that” is a trademark of Apple, Inc. The App
described by the Court herein is not an Apple product.
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This “App” is discussed in Cleary, “Some Thoughts on Discovery and Legal
Writing: ‘What we have here is failure to communicate’.” 82 Okla. B. J. 2923 (Dec. 10,
2011).
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II.
ANATOMY OF A DISCOVERY DISPUTE
The manner in which discovery has proceeded makes this case, in many respects,
the “poster child” for what is wrong with the worst of pre-trial discovery. For that
reason, and in the hope that a closer look at what has occurred in this case might help
prevent similar problems in the future, the Court offers a detailed examination of how
discovery difficulties began and how failure to resolve those difficulties created
additional problems. In the process, the directives and goals of the Federal Rules of
Civil Procedure were simply ignored. This caused significant expense and wasted time
to the clients, and, ultimately, an award of sanctions against Segway.
A. Plaintiffs’ Discovery Requests
The fundamental problem with many of Plaintiffs’ document requests is that
they often fail to describe “with reasonable particularity” what is being sought. For
example, the requests usually don’t specify the time period for which documents are
sought. See Fed. R. Civ. P. 34(b)(1)(A): The request “must describe with reasonable
particularity each item or category of items to be inspected….”
The document request begins with the all too common “Definitions” section.
“Documents”, for example, includes “hotel charges, receipts, freight bills….” [Dkt. No.
34-1, p. 3]. There is no indication that hotel charges are an issue in this lawsuit, but
Plaintiffs have them covered just in case. “Communications” means “every form of
communication, representation or statement of any kind or nature between or involving
two or more persons, by whatever means accomplished.” [Id.] Such definitions are

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generally of little practical value, especially when they haven’t been edited to fit the
case at hand. However, they do set the tone for what follows, and what follows are
often ill-defined discovery requests that fail the reasonable particularity standard of
Rule 34. For example:
Request No. 9: All documents, correspondence or communications which
relate to or concern in any manner any complaints, claims, or accident or
incident reports regarding any accident to or injury suffered by any
person while using any Segway manufactured, produced, or sold by you
regardless of place where the system was used.
[Dkt. No. 34-1, p. 6].
Putting aside grammatical errors – which are not insignificant – this sentence
does not describe with reasonable particularity what Plaintiffs are seeking. Where, for
example, would one begin looking for any document relating to or concerning in any
manner, any complaint regarding any accident suffered by any person while using any
Segway anywhere in the world at any time? Other requests are also overly broad: “All
drawings, photographs and/or videotapes of the subject Segway or any Segway HT.”
[Dkt. No. 34-1, p. 7 (emphasis added)].
Document requests such as these set the stage for discovery problems because
the recipient does not know specifically what is being requested. The use of so-called
omnibus phrases, such as “relating to,” “referring to,” or “concerning” may, in
themselves, violate the reasonable particularity requirement of Rule 34. Leisure
Hospitality, Inc. v. Hunt Props., Inc., 2010 WL 3522444, *3 (N.D. Okla. Sept. 8, 2010);
Mackey v. IBP, Inc., 167 F.R.D. 186, 197-98 (D. Kan. 1996) (omnibus phrases “often
require the answering party to engage in mental gymnastics to determine what
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information may or may not be remotely responsive”); Bethesda Softworks LLC v.
Interplay Entm’t Corp., 2011 WL 1559308, *2, n.4 (D. Md. April 25, 2011).
B. Segway’s Document Responses
Segway’s discovery responses make worse an already problematic situation.
Segway has not produced a proper Rule 34 document response. Under Rule 34, a
responding party “must either state that inspection and related activities will be
permitted as requested or state an objection to the request, including the reasons.” Fed. R.
Civ. P. 34(b)(2)(B) (emphasis added). In the event that the responding party finds only
part of a request is objectionable, it may object to that part. But the responding party
“must specify the [objectionable] part and permit inspection of the rest.” Fed. R. Civ. P.
34(b)(2)(C). Segway has failed to specify what part of the requests it is objecting to.
Furthermore, general or boilerplate objections, offered without explanation, may
constitute a waiver of the responding party’s right to object. E.g., Sabol v. Brooks, 469
F.Supp.2d 324, 328-29 (D. Md. 2006) (Under Rule 34, failure to make particularized
objections to document requests constitutes a waiver of those objections.). See also,
Kinetic Concepts, Inc. v. ConvaTec, Inc., 268 F.R.D. 226, 241 (M.D.N.C. May 12, 2010); HyKo Prods. Co. v. Hillman Grp., Inc., 2009 WL 3258603, at *2 (E.D.N.C. Oct. 8, 2009)
(objections that merely recite boilerplate language are not colorable); Mills v. E. Gulf Coal
Preparation Co., 259 F.R.D. 118, 132 (S.D. W.Va. 2009) (“boilerplate objections
regurgitating words and phrases from Rule 26 are completely unacceptable”); FrontierKemper Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 528 (S.D. W.Va. Nov.
21, 2007) (boilerplate objections unacceptable); Enron Corp. Sav. Plan v. Hewitt Assocs.,
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L.L.C., 258 F.R.D. 149, 162-64 (S.D. Tex. 2009) (same). Objections must be specific and
fully explained or else the requesting party is unable to evaluate the objection’s merits
and determine whether to challenge it. DL v. District of Columbia, 251 F.R.D. 38, 43-45
(D.D.C. 2008).
Similarly, this Court has held that a litany of general objections is insufficient to
meet the responding party’s burden in substantiating its objections to discovery. See,
Wyatt v. ADT Sec. Servs., Inc., 2011 WL 1990473, at *2 n. 1 (N.D. Okla. May 23, 2011) (“It
is not appropriate to expect the court to sift through general objections to determine
which ones might apply to a particular topic.”); Leisure Hospitality, supra, 2010 WL
3522444, at *3 (failure to discuss a general objection’s applicability to a specific
discovery request may result in waiver); Herd ex rel. Herd v. Asarco, Inc., 2002 WL
34584902, at *3 (N.D. Okla. April 26, 2002) (general and boilerplate objections are not
proper).
By failing to support its objections with specific reference to the requests at
hand, and by not identifying what portions of requests were objectionable, Segway
waived its objections.3

The objections waived are those set forth in familiar boilerplate: vague, overbroad, unduly burdensome, not reasonably calculated to lead to discovery of admissible
evidence. Of course, even when objections such as these are deemed waived, the Court
may decline to compel production when a request “far exceeds the bounds of fair
discovery.” 10A Fed. Proc., L. Ed. § 26:645 (December 2012). Objections on the basis of
privilege or work product, must be listed on a privilege log. Fed. R. Civ. P. 26(b)(5);
LCvR26.4.

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C. Conditional Production or Production ‘Without Waiving Objections’
The biggest single problem with Segway’s document responses, however, is that
when Defendant indicates documents will be produced, it is unclear what is being
produced and what is not. Most of Segway’s responses state that “Without waiving
and subject to said objections, see -----.” In many instances, the documents Segway
produced are identified by Bates numbers. [Dkt. No. 34-2, Document Response No. 7
(“see documents identified as Segway-Howard-003379-003393”)]. In other instances,
Segway has identified types of documents or information that will be produced. [Dkt.
No. 34-2, Document Response No. 9]. In some cases, Segway has indicated only that the
information/documents sought “are matters of public record.” [Eg., Dkt. No. 34-2,
Document Response No. 26.].
Thus, while Segway’s document responses state that some documents have been
or will be produced, Segway does not specify what body of documents is being
produced. The fundamental question is: Are all responsive documents being produced?
If not, what portion of the universe of responsive documents is being produced? How
did Segway determine the universe of responsive documents? Segway has not made
this clear. Once a party has decided to produce documents, it has the duty – at a
minimum – to identify what it is producing. A party that objects and produces creates
an ambiguity as to what documents, if any, have been withheld. See, Pamlab, L.L.C. v.
Rite Aid Corp., 2005 WL 1588238, at *2 (E.D. La. June 27, 2005) (overruling all objections
in order to “eliminate any ambiguity” and requiring the producing party to certify that
all responsive documents were produced). To avoid this problem, the attorney
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overseeing document production must inform himself or herself as to what documents
are responsive to the discovery requests and which of those, if any, will be produced.
Failure to shoulder this affirmative duty is breach of one’s obligations under the Federal
Rules. See, F.D.I.C. v. McCaffree, -- F.R.D. --, 2012 WL 6726406, at *6 (D. Kan. Dec. 27,
2012); Hock Foods, Inc. v. William Blair & Co., L.L.C., 2011 WL 884446, at *8 & n.64 (D.
Kan. March 11, 2011) (“The Federal Rules require a party to conduct a reasonable search
for responsive information.”); Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006)
(Responding party must develop a “reasonably comprehensive search strategy” to find
responsive documents.); Moore v. Chertoff, 255 F.R.D. 10, 21-27 (D.D.C. 2008) (imposing
sanctions for party’s failure to conduct a reasonable search for responsive documents);
A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006) (Party is under
an affirmative duty to seek information that is reasonably available to it from its
employees, agents or others subject to its control.).
If Segway concluded – after a good faith inquiry – that it believed “all documents
responsive to this request are contained in the company’s accident report files for 200305,” it should so inform the Plaintiffs. Without those details, Plaintiffs have no way of
knowing what they are receiving.
Parties’ discovery duties are included within the mandates of the Federal Rules
of Civil Procedure and the Local Rules of this Court regarding cooperation, civility and
professionalism. Fed. R. Civ. P. 26 requires that counsel take affirmative steps to
educate themselves about relevant discovery and its availability:

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Signature Required; Effect of Signature. Every disclosure under Rule
26(a)(1) or (a)(3) and every discovery request, response, or objection must
be signed by at least one attorney of record in the attorney's own name--or
by the party personally, if unrepresented…. By signing, an attorney or
party certifies that to the best of the person's knowledge, information, and
belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it
is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing
law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive,
considering the needs of the case, prior discovery in the case, the amount
in controversy, and the importance of the issues at stake in the action.
Fed. R. Civ. P. 26(g)(1) (emphasis added).
An attorney must sign every disclosure, discovery request, response or objection
and that signature constitutes a certification that obliges the 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 note (1983). This certification must be based upon the
attorney’s “reasonable inquiry” into the situation; thus, blind, boilerplate objections
violate both Rule 26 and Rule 34.
Parties must communicate intelligibly in furtherance of pre-trial discovery. This
requires clear, concise, concrete language. Rule 34 imposes a duty that discovery
requests describe with “reasonable particularity” what is being sought. Courts have
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imposed the same “reasonable particularity” obligation on producing and objecting
parties. At the end of the day, the parties – and the Court – must have a clear
understanding of what was requested, what is being produced and what is being
objected to and why. Segway’s responses to the Plaintiffs’ discovery make that
impossible. Finally, the rules require the parties to have a meaningful conference to
discuss discovery problems and attempt to resolve them before submitting the problem
to the Court. A meaningful discovery conference will be impossible if the parties are
not specific about what is requested, what is objected to and what is being produced.
III.
SEGWAY’S FAILURE TO RESPOND TO REQUESTS FOR SUPPLEMENTATION
Unfortunately, the problems outlined above were only the beginning of the
discovery dispute. The Motion to Compel and for Sanctions was prompted by
Segway’s failure to respond to requests for supplementation.
Over the course of four months, Plaintiffs sought supplementation and
clarification of Segway’s discovery responses, only to be ignored or put off with a
variety of excuses:
On July 30, 2012, Plaintiffs sent counsel for Segway a lengthy letter
requesting supplementation of specific document responses within 30
days. Defendant neither supplemented nor responded to this letter.
On September 3, 2012, Plaintiffs sent a second letter inquiring about the
status of the requested supplementation. Again, Plaintiffs received no
response to their letter.
On September 11, 2012, Plaintiffs sent a third letter.
On October 1, 2012, Plaintiffs sent a fourth letter requesting
supplementation. Plaintiffs asked for a specific date by which
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supplementation would be provided, or, in the alternative, a date when
counsel could meet and confer for purposes of a Motion to Compel.
On October 8, 2012, Segway forwarded documents it had received by
serving subpoenas on several non-parties.
On October 19, 2012, Plaintiffs sent an e-mail demanding supplementation
or a Rule 37 conference by October 22nd. Segway requested additional
time to supplement and Plaintiffs agreed to an extension until October
26th.
On October 26, 2012, Segway’s counsel informed Plaintiffs that she was
having trouble reaching her client and asked for additional time through
October 29th. Plaintiffs agreed.
On October 29, 2012, Segway’s counsel informed Plaintiffs that Segway’s
office was closed due to Hurricane Sandy.
On November 9, 2012, Plaintiffs’ counsel requested an update on
supplementation. Segway’s counsel responded on November 12th,
stating that she was in deposition and would update Plaintiffs by the next
morning.
On November 13, 2012, having not heard from Segway’s counsel,
Plaintiffs again requested an update.
On November 14, 2012, Segway’s counsel responded that Hurricane
Sandy had delayed a response, but that her client hoped to get to the
matter that day.
On November 15, 2012, Segway’s counsel emailed Plaintiffs that the
requested supplementation was being finalized and Plaintiffs would
receive it by early the next week.
On November 19, 2012, Plaintiffs’ counsel confirmed that
supplementation was planned for the next day and that if no
supplementation were forthcoming, counsel would conduct a Rule 37
conference that day.
On November 20, 2012, Segway’s counsel requested another extension
and said she would follow up with Plaintiffs on November 26th.
On November 26, 2012, Segway’s counsel said she had not heard back
from her client.
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On November 27, 2012, Plaintiffs’ counsel requested a Rule 37 conference
that day.
On November 28, 2012, the parties held their Rule 37 conference.
Segway’s counsel stated she had been unable to reach her client and was
unable to provide the requested responses or a date by which they would
be made available.
A hearing was conducted on January 17, 2013. By that date, Segway had
provided some supplementation and the parties were able to resolve other discovery
matters during the hearing. The parties were directed to file a Joint Report on
Discovery, which they did on January 23, 2013. [Dkt. No. 43]. Based on this report, it
appears that most discovery matters have now been resolved and that a privilege log is
forthcoming.
IV.
DISCUSSION
Plaintiffs served their discovery requests on December 28, 2011. Segway’s
responses were served 60 days later on February 29, 2012. Plaintiffs waited five months
before requesting supplementation of specific document responses. It was another six
months before Plaintiffs received requested supplementation. [Dkt. No. 43]. As of the
hearing on Plaintiffs’ Motion to Compel (January 17, 2013), Segway still had not
provided a Privilege Log as required by the Local Rules. LCvR26.4.
The sequence of events described above details the tortuous path followed here
in executing the basic discovery function of Rule 34. It is clear that Segway’s responses
to the document requests were not properly responsive and that Plaintiffs endeavored
for months to get the attention of Segway’s counsel and of the company itself. The
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conduct of Segway and its counsel has needlessly delayed this case, burdened the Court
and imposed unnecessary cost and expense on Plaintiffs.
ACCORDINGLY, Segway’s motion to Compel is GRANTED. Segway shall
supplement its discovery responses as outlined at the January 17, 2013, hearing, and
shall ensure that Plaintiffs have received discovery responses that advise them (1)
whether all non-privileged, responsive documents have been produced; (2) if all nonprivileged, responsive documents have not been produced, Segway shall advise
Plaintiffs specifically what documents are being withheld and why; (3) a Privilege Log
in compliance with LCvR26.4 shall be produced immediately, if that has not already
been done.
Fed. R. Civ. P. 37 provides:
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After
Filing). If the motion is granted--or if the disclosure or requested discovery
is provided after the motion was filed--the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that conduct, or
both to pay the movant's reasonable expenses incurred in making the
motion, including attorney's fees. But the court must not order this
payment if:
(i) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. (a)(5)(A).

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The amount of a fee award imposed as a discovery sanction is determined by the
lodestar formula – calculating the reasonable number of hours incurred multiplied by a
reasonable hourly rate. Creative Res. Grp. of New Jersey, Inc. v. Creative Res. Grp., Inc., 212
F.R.D. 94, 103-05 (E.D.N.Y. 2002); Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1245-46
(10th Cir. 2006). Here, the hourly rate charged of $145 has not been challenged and the
Court finds that it is reasonable by local standards. Plaintiffs incurred a total of 55.4
hours prosecuting the Motion to Compel, but counsel reduced this amount by nearly 25
percent to 41.7 hours.
Segway objects that the delay incurred herein was caused by specific lawyers
who are no longer employed by the firm. All three lawyers who previously had
responsibility for this case have left the Holden & Carr law firm. Nevertheless, the
Court finds that placing the entire blame for this situation on the departed lawyers is
inappropriate. Holden & Carr – not individual lawyers – represented Segway in this
matter. It is the firm’s responsibility to see that discovery is properly handled.
Furthermore, when supplemental discovery was not provided, defense counsel
represented to Plaintiffs that part of the problem was caused by Segway’s own conduct
-- its inattention to the matter. Accordingly, the Court finds that an award of fees is
justified and should be imposed jointly and severally against Holden & Carr and
Segway.
Segway argues that the requested fees should be reduced by half. Segway states
that spending 40 hours on this motion to Compel and Fee Request appears excessive
and further states that Plaintiffs suffered only a “brief delay” in receiving the requested
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documents. The Court agrees that 33.6 hours (voluntarily reduced to 27 hours) is an
excessive amount of time for a motion to compel and reply. The Court is aware that the
primary billing attorney is still relatively new to the practice of law and that this often
results in more time expended on a discrete project. The balancing factor, of course, is
that the hourly rate for this work is low. The Court will reduce the number of hours
expended on the Motion and Reply by 15 percent and allow 23 hours for this work.
This brings the total hours to 37.7 and total fees to $5,466.50.
In arguing against a fee award, Segway also asserts that the delay caused by the
failure to respond to Plaintiffs was only a “brief delay.” The Court disagrees. Plaintiffs
endeavored for five months to get requested supplementation from Segway. This is
hardly a “brief delay.” Indeed, Segway’s conduct required the Court to issue a Third
Amended Scheduling Order extending the Trial Date 90 days.
After reviewing the requested fee amount and supporting records and affidavit,
and Segway’s objections thereto, the Court finds that $5466.50 is a reasonable sanction
under the circumstances presented. The hourly rate of $145 is reasonable for this work
and the reduced time of 37.7 hours is a reasonable number of hours.
THEREFORE, the Court hereby awards attorney fees in the total amount of
$5,466.50 in favor of Plaintiffs and against Defendant Segway and its counsel, Holden &
Carr, jointly and severally.

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IT IS SO ORDERED, this 7th day of March 2013.

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