Murphy et al v. Setzer's Camping World of Camping, Inc. et al
Filing
83
MEMORANDUM OPINION AND ORDER granting 72 MOTION by Setzer's Camping World of Camping, Inc. to Compel Plaintiff to fully answer Setzer's Interrogatories and Requests for Admission; Plaintiff Bryan Murphy shall provide Defendant Setzer with full and complete responses to the discovery requests within 10 days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 5/21/2021. (cc: Plaintiffs and counsel of record) (mkw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
KARLA MURPHY, et al.,
Plaintiffs,
v.
Case No.: 3:20-cv-00406
SETZER’S WORLD OF CAMPING, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the Motion of Defendant Setzer’s World of Camping (“Setzer’s”) to
Compel. (ECF No. 72). Plaintiffs have responded to the motion, (ECF. No. 76), and the
time for filing a reply has expired. See L. R. Civ. P. 7.1(a)(7). For the reasons that follow,
the Court GRANTS the Motion to Compel.
Setzer’s served Plaintiff Bryan Murphy with a set of eleven interrogatories and
nineteen requests for admission, which Plaintiff answered in a timely fashion. (ECF
Nos. 72-1, 72-2). However, Plaintiff lodged at least one objection to each and every
interrogatory. According to Setzer’s, the objections were improper boilerplate, or were
simply unfounded. When Plaintiff was asked to supplement the responses, he provided
over sixty emails to Setzer’s, with attachments, including video and audio recordings,
pictures, and other documents. Setzer’s objected to the supplementation on the ground
that the emails did not specify which interrogatories were being answered with the
documents produced. When the parties could not work out their differences, Setzer’s
filed the instant Motion to Compel. In response to the Motion to Compel, Plaintiff
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argues that his objections were not boilerplate, and that the documents provided by
email were organized chronologically. He states that he acted in good faith to resolve
the discovery dispute. Having reviewed the discovery requests and responses, the
Court agrees with Setzer’s that Plaintiff’s discovery answers were deficient for multiple
reasons.
First, Plaintiff asserted an objection to all eleven interrogatories on the basis
that the requests were “not proportional to the needs of the case.” (ECF No. 72-2). This
objection was lodged to interrogatories asking for such things as (1) Plaintiff’s name,
place of birth, addresses, and social security number; (2) an itemization of the expenses
he incurred as a result of the incidents giving rise to the complaint; (3) the names of
his witnesses; (4) his employment history, and other standard requests. Clearly, these
interrogatories sought information that was relevant and proportional to the needs of
the case. Moreover, Plaintiff supplied no explanation for asserting this particular
objection, and provided no evidentiary support for the objection.
Plaintiff did claim in response to some of the interrogatories that the burden
and expense of replying to the interrogatory outweighed the need for the information
requested. However, Plaintiff did not substantiate this objection. The law is clear that
a party resisting discovery on the grounds of burdensomeness and oppression must do
more to carry its burden than make conclusory and unsubstantiated allegations.
Convertino v. United States Department of Justice, 565 F.Supp.2d 10, 14 (D.D.C.
2008) (holding that the court will only consider an unduly burdensome objection when
the objecting party demonstrates how discovery is overly broad, burdensome, and
oppressive by submitting affidavits or other evidence revealing the nature of the
burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D. Kan. 2005)
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(holding that the party opposing discovery on the ground of burdensomeness must
submit detailed facts regarding the anticipated time and expense involved in
responding to the discovery which justifies the objection); Bank of Mongolia v. M & P
Global Financial Services, Inc., 258 F.R.D. 514, 519 (S.D.Fla.2009) (“A party objecting
must explain the specific and particular way in which a request is vague, overly broad,
or unduly burdensome. In addition, claims of undue burden should be supported by a
statement (generally an affidavit) with specific information demonstrating how the
request is overly burdensome.”).
Similarly, in response to Interrogatory No. 3, seeking information regarding
potential witnesses, Plaintiff indicated that he should not have to answer the
interrogatory, because Setzer’s had equal access to the information requested.
However, that objection was not entirely accurate. Contact and employment
information pertaining to witnesses known only to Plaintiff, such as Mr. Epperson,
would not be equally accessible to Setzer’s. Consequently, as to those witnesses,
Plaintiff would be expected to fully answer the interrogatory. In addition, Plaintiff
stated that information regarding the contact information of employees of Keystone,
Setzer’s, and Erie was readily accessible to Setzer’s. While that might be true, Plaintiff
still had an obligation to list the employees of these various companies that Plaintiff
believed had knowledge of the relevant facts. Without such an answer, Setzer’s has no
way of knowing which individuals Plaintiff believes are potential witnesses. The fact
that some of this information is provided as part of Plaintiff’s initial disclosures does
not obviate Plaintiff’s obligation to fully respond to the discovery request.
Second, while Plaintiff is permitted to submit business records in response to
an interrogatory, he must specify which interrogatories are being answered by which
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records. See Hillyard Enterprises, Inc. v. Warren Oil Co., Inc., No. 5:02–CV–329,
2003 WL 25904133, at *2 (E.D.N.C. Jan. 31, 2003) (“Rule 33(d) is meant to ‘make it
clear that a responding party has the duty to specify, by category and location, the
records from which answers to interrogatories can be derived.”’) (quoting American
Rockwool v. Owens—Corning Fiberglas Corp., 109 F.R.D. 263, 266 (E.D.N.C. 1985);
F.D.I.C. v. Willets, No. 7:11–CV–165–BO, 2013 WL 1943461, at *2 (E.D.N.C. May 9,
2013) (“Merely, ‘directing the opposing party to an undifferentiated mass of records is
not a suitable response to a legitimate request for discovery.”’) (citations omitted); SEC
v. Elfindepan, S.A., 206 F.R.D. 574, 576–77 (M.D.N .C. 2002) (The producing party
must adequately and precisely specify for each interrogatory, “the actual documents
where information will be found.); Mullins v. Prudential Ins. Co. of America, 267
F.R.D. 504, 514–15 (W.D. Ky. 2010) (“Rule 33(d) is not intended to be used as ‘a
procedural device for avoiding the duty to give information.”’) (citation omitted); In re
Sulfuric Acid Antitrust Litigation, 231 F.R.D. 320, 325–26 (N.D. Ill.2005) (“[T]here
must be a sufficiently detailed specification of the records to permit the interrogating
party to find the document as readily as can the party served. These are not optional
requirements.”); Sungjin FoMa, Inc. v. Chainworks, Inc., No. 08–CV–12393, 2009
WL 2022308, at *4 (E.D. Mich. Jul. 8, 2009) (“[D]irecting the opposing party to an
undifferentiated mass of records is not a suitable response to a legitimate request for
discovery.”) (internal quotation marks and citations omitted); Rainbow Pioneer No.
44–18–04A v. Hawaii–Nevada Inv. Corp., 711 F.2d 902, 906 (9th Cir. 1983) (When
using Rule 33(d), a party must “specify where in the records that answers can be
found.”). In this case, it appears that Plaintiff provided Setzer’s with a number of emails
attaching documents arranged in a chronological fashion, but without specifying to
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which interrogatories the documents belonged. If the documents were meant to
respond to more than one discovery request, the documents should have been tied to
specific interrogatories.
As a corollary to this discussion, the Court notes that serving interrogatory
responses via email may comply with the federal discovery rules, if the email includes
a formal and verified response to specific interrogatories. In other words, the format of
the email attachment must correspond to the format required by Rule 33. At a
minimum, the emailed response must clearly indicate the interrogatories to which it
applies, must be stated under oath, and must be signed by the person making the
responses.
Third, Plaintiff objected to several interrogatories on the grounds of attorneyclient privilege, attorney work product protection, and the privilege that accompanies
husband-wife communications. However, he did not properly assert the privileges,
because he failed to comply with the requirements of Fed. R. Civ. P. 26(b)(5)(A)(ii).
Fed. R. Civ. P. 26(b)(5)(A) states:
When a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to protection as trialpreparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible
things not produced or disclosed--and do so in a manner that, without
revealing information itself privileged or protected, will enable other
parties to assess the claim.
Procedurally, a party can satisfy the requirement of Rule 26(b)(5)(A)(ii) by producing
“a properly prepared privilege log that identifies each document withheld, and contains
information regarding the nature of the privilege/protection claimed, the name of the
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person making/receiving the communication, the date and place of the
communication, and the document's general subject matter. Sky Angel US, LLC v.
Discovery Communications, LLC, 28 F.Supp.3d 465, 483 (D. Md. 2014). A party's
conclusory assertion that a document is privileged is inadequate to meet the burden
imposed by Rule 26(b)(5)(A). See United Stationers Supply Co. v. King, No. 5:11–CV–
00728, 2013 WL 419346, at *2 (E.D.N.C. Feb. 1, 2013). Rather, the party's privilege log
“must set forth specific facts which, taken as true, establish the elements of the
privilege for each document for which privilege is claimed. A privilege log meets this
standard, even if not detailed, if it identifies ‘the nature of each document, the date of
its transmission or creation, the author and recipients, the subject, and the privilege
asserted.’” Clark v. Unum Life Ins. Co. of Am., 799 F.Supp.2d 527, 536 (D. Md. 2011)
(quoting N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)) (citation
and footnote omitted); see also Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D.
251, 264 (D. Md. 2008) (noting that privilege logs typically require “information
regarding the nature of the privilege/protection claimed, the name of the person
making/receiving the communication, the date and place of the communication, and
the document's general subject matter.”); and Paul W. Grimm, Charles S. Fax, & Paul
Mark Sandler, Discovery Problems and Their Solutions, 62–64 (2005) (“To properly
demonstrate that a privilege exists, the privilege log should contain a brief description
or summary of the contents of the document, the date the document was prepared, the
person or persons who prepared the document, the person to whom the document was
directed, and for whom the document was prepared, the purpose in preparing the
document, the privilege or privileges asserted with respect to the document, and how
each element of the privilege is met for that document.”).
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Regardless of how the privilege log is designed, its primary purpose is to
“provide[] information about the nature of the withheld [information] sufficient to
enable the receiving party to make an intelligent determination about the validity of
the assertion of the privilege.” Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. and N.J.,
No. 11 Civ. 6746, 2014 WL 2518959, at *5 (S.D.N.Y. June 4, 2014). Ultimately, the
creation of an adequate privilege log requires a delicate balancing act—on the one
hand, the withholding party must not supply too little or indecipherable information,
and on the other, the withholding party must not reveal too much detail for fear that
the privileged information itself may seep into the log. Johnson v. Ford Motor Co., 309
F.R.D. 226, 232–33 (S.D.W. Va. 2015).
The sufficiency of a privilege log's document description may be context driven;
nevertheless, “vague and uninformative document descriptions do not satisfy” the
standard for privilege log adequacy. See In re McDonald, No. 13–10661, 2014 WL
4365362, at *4 (Bankr. M.D.N.C. Sept. 3, 2014) (collecting cases). This is true for the
simple reason that “when a party refuses to produce documents during discovery on
the basis that they are privileged or protected, it has a duty to particularize that claim.”
Victor Stanley, Inc., 250 F.R.D. at 254, n.2. “The focus is on the specific descriptive
portion of the log, and not on conclusory invocations of the privilege or work-product
rule, since the burden of the party withholding documents cannot be ‘discharged by
mere conclusory or ipse dixit assertions.’” Neuberger Berman Real Estate Income
Fund, Inc. v. Lola Brown Trust, No. 1B, 230 F.R.D. 398, 406 n. 14 (D. Md. 2005)
(quoting Golden Trade S.R.L. v. Lee Apparel Co., 1992 WL 367070, *5, 1992 Dist.
LEXIS 17739 *12–13 (S.D.N.Y. 1992)).
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If Plaintiff has information responsive to the interrogatories, but he believes the
information is privileged and chooses to withhold it from discovery, he must submit a
privilege log with the interrogatory response. Plaintiff objected on the basis of
privilege in response to two interrogatories, but failed to submit a privilege log.
Furthermore, it is not appropriate to raise a privilege objection and then proceed to
answer the interrogatory “without waiving” the objection. The problem with such an
answer is, in the absence of a privilege log, the party making the discovery request
cannot tell whether information was withheld subject to a privilege, or whether the
answer is complete as stated.
Fourth, in response to some of the interrogatories, Plaintiff stated that the
requested information was irrelevant, but provided no explanation for the objection.
For example, Plaintiff responded with a relevancy objection to an interrogatory seeking
his employment information, yet Plaintiff never articulated a reason as to why that
information had no bearing on the claims or defenses in the case. At first blush, the
information requested appears reasonably calculated to lead to admissible evidence,
because Plaintiff seeks money damages for his inability to use the camper. As such,
information regarding Plaintiff’s employment at the relevant time, and the nature of
that employment, could be pertinent as to whether his employment duties significantly
reduced his availability to camp, even if his camper had been fully functional. Similarly,
Plaintiff asserted that his marital history was irrelevant, notwithstanding the
defendants’ pending motions for summary judgment claiming that Plaintiff Karla
Murphy had no interest in the camper, and despite Plaintiff’s assertion of the privilege
for husband-wife communications. Obviously, the date of Plaintiff’s marriage to Karla
Murphy and their marital status could have an effect on the validity of the asserted
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privilege. Furthermore, questions related to criminal charges or seeking background
information are often relevant on the issue of the party’s credibility. Considering these
potential uses of the requested information, the relevancy objection was not wellfounded.
Courts in this circuit disfavor general objections. See, e.g., Mainstreet
Collection, Inc. v. Kirklands, Inc., 270 F.R.D. 238, 240 (E.D.N.C.2010) (mere
recitation of the familiar litany that a request is overly broad, burdensome, oppressive,
and irrelevant does not constitute a specific objection); Hager v. Graham, 267 F.R.D.
486, 492 (N.D.W. Va.2010) (“general objections to discovery, without more, do not
satisfy the burden of the responding party ... because they cannot be applied with
sufficient specificity to enable courts to evaluate their merits.”); Mills v. East Gulf
Coast Preparation Co., LLC, 259 F .R.D. 118, 132 (S.D.W. Va. 2009) (“boilerplate
objections regurgitating words and phrases from Rule 26 are completely
unacceptable.”); Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358–59
(D. Md. 2008) (court disapproves of a general objection asserted “to the extent” that it
applies). By raising non-particularized objections, a party runs the risk of waiving any
valid objections that may exist. Id. at 359; see also Mezu v. Morgan State University,
269 F .R.D. 565, 573 (D. Md. 2010). Plaintiff lodged a number of objections that were
general and boilerplate, because no explanation was provided for the objection, and
the objection appeared to be incorrect. The factual and legal grounds relied upon by
the answering party when asserting an objection should be plain from the discovery
response itself. Furthermore, it should be clear from the response whether or not
information has been withheld based on a privilege or protection. Plaintiff’s answers
to Setzer’s discovery requests do not fully comply with these standards.
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Accordingly, the Court GRANTS the motion to compel. Plaintiff Bryan Murphy
shall provide Defendant Setzer with full and complete responses to the discovery
requests within ten (10) days of the date of this Order.
The Clerk is directed to provide a copy of this Order to Plaintiffs and counsel of
record.
ENTERED: May 21, 2021
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