Smith v. Trawler Capt Alfred Inc et al
Filing
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ORDER granting in part and denying in part 35 Motion to Compel Signed by Honorable David C Norton on 5/13/2014.(cahe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ANTHONY C. SMITH, JR.,
Plaintiff,
vs.
TRAWLER CAPT. ALFRED, INC. and
C.B. POTTER, LLC, trading as CAROL
POTTER FLEET, in personam, and F/V
BIRDIE P, her engines, tackle, gear, etc.,
in rem,
Defendants.
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No. 2:12-cv-2866-DCN
ORDER
This matter is before the court on a motion to compel discovery responses filed by
defendants Trawler Capt. Alfred and C.B. Potter, LLC (collectively, “defendants”). For
the reasons given below, the court grants in part and denies in part defendants’ motion.
I. BACKGROUND
Because the specific facts underlying this case are not directly at issue here, the
court includes only a brief summary of the events alleged in the complaint. Plaintiff
Anthony C. Smith, Jr. (“Smith”) was a seaman and member of the crew of F/V BIRDIE
P, which was jointly or severally owned, operated, and managed by Trawler Capt. Alfred
and C.B. Potter. Compl. ¶ 7-9. Smith was injured on December 21, 2011, when Smith’s
clothing became caught in a winch used to retrieve fishing nets, ensnaring him in the
winch and net. Compl. ¶ 10-13. Smith was wound around the winch “like a pinwheel
with his head and body slamming to the deck on each revolution until his fellow
crewmembers were able to turn the winch off.” Compl. ¶ 14. As a result of this incident,
Smith suffered serious injuries. Compl. ¶ 15.
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On October 4, 2012, Smith filed this suit alleging unseaworthiness, Jones Act
negligence, and failure to pay maintenance, cure, and unearned wages. Defendants
moved the court to compel discovery responses on March 4, 2014. Smith responded on
March 14, 2014, and defendants replied on March 20, 2014. The matter is now fully
briefed and ripe for the court’s review.
II. STANDARDS
The Federal Rules of Civil Procedure provide that a party may “obtain discovery
regarding any non-privileged matter that is relevant to any party’s claim or defense,
including the existence, description, nature, custody, condition and location of any books,
documents or other tangible things and the identity and location of persons who know of
any discoverable matters.” Fed. R. Civ. P. 26(b)(1). “Relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead to the discovery
of admissible evidence.” Id. Rather, information is relevant and discoverable if it relates
to “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).
If a party declines to answer an interrogatory or request for production, the
serving party “may move for an order compelling an answer, designation, production, or
inspection.” Fed. R. Civ. P. 37(a)(3)(B). An 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). “The scope and conduct of discovery are within the sound discretion of the
district court.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568
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n.16 (4th Cir. 1995) (citing Erdmann v. Preferred Research, Inc. of Ga., 852 F.2d 788,
792 (4th Cir. 1988)).
III. DISCUSSION
On November 18, 2013, defendants served written discovery requests on Smith.
Defs.’ Mot. Ex. 1. Defendants deposed Smith the next day. Pl.’s Resp. 1. Smith served
his discovery responses on January 21, 2014. Defs.’ Mot. Ex. 2. Defendants contend
that the responses to eleven interrogatories and one request for production are deficient or
nonresponsive because the responses contain only cursory references to other litigation
documents. See, e.g., Defs.’ Mot. Ex. 2 (Smith’s responses to interrogatories include:
“See pleadings and Plaintiff’s deposition,” “See pleadings, previously produced medical
records and Plaintiff’s deposition,” “See pleadings filed by Plaintiff,” and “See plaintiff’s
deposition”).
Rule 33(b)(3) provides that “[e]ach interrogatory must, to the extent it is not
objected to, be answered separately and fully in writing under oath.” “Because Rule
[33(b)(3)] requires a party to answer each interrogatory ‘fully,’ it is technically improper
and unresponsive for an answer to an interrogatory to refer to outside material, such as
pleadings, depositions, or other interrogatories.” Equal Rights Ctr. v. Post Props., Inc.,
246 F.R.D. 29, 35 (D.D.C. 2007) (citation omitted). An answer to an interrogatory that
simply incorporates the complaint or a deposition is therefore unresponsive. See Cont’l
Ill. Nat. Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 687 (D. Kan. 1991)
(“Incorporation by reference to a deposition is not a responsive answer.”); King v. E.F.
Hutton & Co., 117 F.R.D. 2, 6 (D.D.C. 1987) (“Defendant cannot avoid answering
interrogatories by referring the plaintiffs to its pleadings, no matter how detailed.”);
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United States v. W. Va. Pulp & Paper Co., 36 F.R.D. 250, 251 (S.D.N.Y. 1964) (“It is not
the office of an answer to an interrogatory to merely restate virtually in haec verba the
allegations of the complaint. Like the other discovery rules, Rule 33 is to be given a
broad and liberal interpretation in the interest of according to the parties the fullest
knowledge of the facts and of clarifying and narrowing the issues.” (citation and
quotation mark omitted)).
Smith contends that his answers are proper because Rule 33(d) permits a party to
“respond to an interrogatory by specifying the records where the answer may be found.”
Pl.’s Resp. 2. Rule 33(d) provides:
(d) Option to Produce Business Records. 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).
As noted by defendants, Rule 33(d) “applies to ‘business records’ from which raw
data and facts can be discovered.” Cont’l Ill. Nat. Bank & Trust Co. of Chicago v. Caton,
136 F.R.D. 682, 687 (D. Kan. 1991). “The rule does not mention deposition transcripts,
documents or writings that were generated, or discovered, respectively, during the course
of prior discovery in the same case, only portions of which may be relevant to the issues
for trial.” Id. (emphasis omitted). Because Smith does not claim to answer defendants’
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interrogatories based on information contained in business records, Rule 33(d) is not
applicable to the present motion.
Smith’s cursory references to the pleadings, his deposition, and his medical
records are not responsive answers to defendants’ interrogatories. Therefore, the court
orders Smith to fully respond to the following interrogatories: 3, 4, 5, 6, 7, 8, 9, 11, 13,1
20, and 23. In their motion, defendants also contend that Smith did not produce
documents responsive to request for production number 11, which requests Smith’s “state
and federal income tax returns for the five (5) years leading up to the events alleged in
the Plaintiffs Complaint and for the time period between the alleged incident and the
commencement of this litigation.” Defs.’ Mot. Ex. 1. Smith has indicated that while he
has requested these tax returns, he does not yet have them in his possession. Pl.’s Resp.
8. Because Smith cannot produce what he is not in possession of, the court denies
defendants’ motion as it relates to request for production number 11. Of course, Smith
should produce any tax returns to defendants if and when he receives them.
IV. CONCLUSION
Based on the foregoing, the court GRANTS IN PART AND DENIES IN PART
defendants’ motion to compel.
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As written, interrogatory number 13 asks whether Smith “consumed any alcohol
and/or drugs, legal or illegal, within the 24-hour period of time preceding the collision.”
Defs.’ Mot. Ex. 1. Smith responded that the interrogatory “cannot be answered as there
was no collision.” Defs.’ Mot. Ex. 2. In their motion, defendants ask the court to allow
them to substitute the word “incident” for the word “collision.” Defs.’ Mot. 4. The court
grants this request. Therefore, when responding to interrogatory number 13, Smith
should substitute the word “incident” for the word “collision.”
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AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
May 13, 2014
Charleston, South Carolina
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