Bradley v. Val-Mejias No. 00-2395-GTV, No. C 02-4799 SBA...

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APP. OF AUTHS. CITED IN JDSU DEFS. NOT. OF MOT. AND MOT. TO COMPEL FURTHER RESPS.; MEM. OF P. & A. MASTER FILE NO. C-02-1486 CW (EDL) sf-2241656

JORDAN ETH (BAR NO. 121617) TERRI GARLAND (BAR NO. 169563) PHILIP T. BESIROF (BAR NO. 185053) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 [email protected]

Attorneys for Defendants JDS Uniphase Corporation, Jozef Straus, Anthony Muller, and Charles J. Abbe

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

In re JDS UNIPHASE CORPORATION SECURITIES LITIGATION

This Document Relates To: All Actions

Master File No. C-02-1486 CW

APPENDIX OF AUTHORITIES NOT CONTAINED IN WEST REPORTERS AND CITED IN JDSU DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANTS’ INTERROGATORIES; MEMORANDUM OF POINTS AND AUTHORITIES

Date: January 23, 2007 Time: 9:00 a.m. Courtroom: E, 15th Floor Before: Hon. Elizabeth D. Laporte

Case 4:02-cv-01486 Document 726 Filed 12/12/2006 of 2

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APP. OF AUTHS. CITED IN JDSU DEFS. NOT. OF MOT. AND MOT. TO COMPEL FURTHER RESPS.; MEM. OF P. & A. MASTER FILE NO. C-02-1486 CW (EDL) sf-2241656 sf-2241656

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For the Court’s convenience, attached to this Appendix are complete and accurate copies

of the following authorities cited in the JDSU Defendants’ Notice of Motion and Motion to

Compel Further Responses to Defendants’ Interrogatories and Supporting Memorandum of Points

and Authorities:

AUTHORITIES Tab

Bradley v. Val-Mejias, No. 00-2395-GTV, 2001 U.S. Dist. LEXIS 25278 (D. Kan. Oct. 9, 2001)................................................................ 1

Pac. Lumber Co. v. Nat’l Union Fire Ins. Co., No. C 02-4799 SBA (JL), 2005 U.S. Dist. LEXIS 1773 (N.D. Cal. Jan. 5, 2005) ............................................................... 2

Woods v. Kraft Foods, Inc., No. CV F 05-1587 LJO, 2006 U.S. Dist. LEXIS 73126 (E.D. Cal. Sept. 22, 2006) .......................................................... 3

Case 4:02-cv-01486 Document 726 Filed 12/12/2006 of 2

Tab 1

Case 4:02-cv-01486 Document 726 Filed 12/12/2006 Page 1 of 12

LEXSEE 2001 U.S. DIST. LEXIS 25278

Caution As of: Dec 12, 2006

RICK L. BRADLEY, Plaintiff, v. J. E. VAL-MEJIAS, M.D., et al., Defendants.

CIVIL ACTION No: 00-2395-GTV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

2001 U.S. Dist. LEXIS 25278

October 9, 2001, Decided October 9, 2001, Filed; October 10, 2001, Entered on Docket

SUBSEQUENT HISTORY: Dismissed by, in part, Sanctions disallowed by, Motion denied by, Summary judgment granted, in part, summary judgment denied, in part by Bradley v. Val-Mejias, 238 F. Supp. 2d 1242, 2002 U.S. Dist. LEXIS 21952 (D. Kan., 2002)

PRIOR HISTORY: Bradley v. Val-Mejias, 2001 U.S. Dist. LEXIS 16209 (D. Kan., Apr. 18, 2001)

DISPOSITION: Motions ruled upon.

COUNSEL: [*1] For Rick L Bradley, Plaintiff: James E Puga, Leventhal & Brown, P.C., Denver, CO, LEAD ATTORNEY. Jeffrey D. Zimmerman, Shawnee, KS, LEAD ATTORNEY. Jim Leventhal, Leventhal & Brown, P.C., Denver, CO, LEAD ATTORNEY. Natalie Brown, Leventhal & Brown, P.C., Denver, CO, LEAD ATTORNEY.

For JE Val-Mejias, Galichia Medical Group, P.A., The, Defendants: Amy S. Lemley, Foulston Siefkin LLP, Wichita, KS, LEAD ATTORNEY. Jack Focht, Foulston Siefkin LLP, Wichita, KS, LEAD ATTORNEY. Jay F. Fowler, Foulston Siefkin LLP, Wichita, KS, LEAD ATTORNEY. Shannon D. Wead, Foulston Siefkin LLP, Wichita, KS, LEAD ATTORNEY.

For Demosthenis Klonis, Defendant: Timothy M. Ayl-ward, Horn, Aylward & Bandy LLC, Kansas City, MO, LEAD ATTORNEY.

JUDGES: David J. Waxse, United States Magistrate Judge.

OPINION BY: David J. Waxse

OPINION:

MEMORANDUM AND ORDER

This matter is before the Court on the following mo-tions: (1) Motion to Compel Discovery, filed by Defen-dants J.E. Val-Majias, M.D., and The Galichia Medical Group, P.A. (doc. 60); (2) Motion for Protective Order and Motion to Quash the Deposition of J.E. Val-Mejias, M.D., filed by J.E. Val-Mejias, M.D. (doc. 58); and (3) request to strike Plaintiff's Reply to [*2] Defendants' Response to Plaintiff's Motion for Extension of Time to Designate Expert Witnesses and to Strike Plaintiff's Cer-tificate of Compelling Circumstances for Fax Filing, filed by Defendants J.E. Val-Mejias, M.D., and The Galichia Medical Group, P.A. (doc. 94)

I. Factual Background

This is a medical malpractice action in which Plain-tiff asserts that Defendants J.E. Val-Mejias, M.D., and The Galichia Medical Group, P.A., were negligent with regard to the care and treatment they provided him dur-ing the time period March 5, 1997 to June 16, 1997. Plaintiff also asserts a claim for fraudulent concealment against Dr. Val-Mejias for concealing from Plaintiff that his pacemaker was allegedly negligently inserted in 1993. Plaintiff claims that he has suffered disabling, permanent injuries, emotional distress, and pain and suf-fering. He also claims that he has suffered a loss of earn-ings and future earning capacity.

II. Defendants' Motion to Compel Discovery (doc. 60)


2001 U.S. Dist. LEXIS 25278, *

Defendants move to compel Plaintiff to respond to various interrogatories and requests for production pro-pounded by Dr. J.E. Val-Mejias and The Galichia Medi-cal Group, P.A. They also move to compel [*3] Plaintiff to sign releases for his Social Security, medical, em-ployment, insurance, and workers' compensation records. In addition, Defendants request that Plaintiff be required to respond to Defendants' written discovery before any party's deposition may be taken. They also request monthly case management conferences. Finally, they seek to recover the attorney fees and expenses they have incurred in connection with the filing of their Motion to Compel.

A. Defendants' First Set of Interrogatories

1. Interrogatory No. 4

This interrogatory asks Plaintiff to provide the fol-lowing information:

Please state in detail your factual version of how the occurrence complained of in your Complaint took place, and identify the precise nature and extend [sic] of your alleged injuries and damages, and your prognosis regarding same.

Plaintiff objects to this interrogatory on the basis that it seeks to discover his counsel's mental impressions, opinions, and "outline and analysis" of the case. Plaintiff also objects to this interrogatory on the basis that its re-quests medical expert opinion, and states that such in-formation will be provided to Defendants "in accordance with [*4] the Federal Rules of Civil Procedure." Finally, Plaintiff objects on the basis that the interrogatory seeks to discover facts upon which Plaintiff and Plaintiff's counsel will rely in prosecuting the case.

The Court will overrule these objections. A defen-dant is entitled to know the factual basis of a plaintiff's allegations. Towner v. Med James, Inc., 1995 U.S. Dist. LEXIS 11669, 1995 WL 477700, *3 (Aug. 9, 1995); Con-tinental Ill. Nat'l Bank & Trust Co. v. Caton, 136 F.R.D. 682, 684 (D. Kan. 1991). Furthermore, requests for opin-ions or contentions that call for the application of law to fact are proper, Towner, 1995 U.S. Dist. LEXIS 11669, 1995 WL 477700 at *3-4 (citing Fed. R. Civ. P. 33(c)), and an interrogatory may properly inquire into a party's contentions in the case, Bohannon v. Honda Motor Co., 127 F.R.D. 536, 538 (D. Kan. 1989). These types of in-terrogatories, known as "contention interrogatories" may be used to narrow and define the issues for trial, and they enable the propounding party to determine the proof re-quired to rebut the responding party's position. Steil v. Humana Kansas City, Inc., 197 F.R.D. 445, 446 (D. Kan. 2000). [*5]

Moreover, Defendants are entitled to "a specific and substantive answer [as to] the dollar amount of plaintiff's claimed damages and a definitive description of other non-pecuniary relief, if any, plaintiff seeks." Caton, 136 F.R.D. at 687. It is not sufficient for Plaintiff to respond by stating that his expert will provide the requested dam-ages information in accordance with the expert disclo-sure deadlines. See id. (overruling objection to interroga-tory asking plaintiff to state the precise amount of dam-ages he sustained as a result of the acts alleged in the complaint). The fact that a plaintiff may later supplement his interrogatory response with an expert report does not permit him to initially refuse to respond with whatever discoverable information he presently holds. Bohannon, 127 F.R.D. at 538. The Court therefore overrules Plain-tiff's objections that the interrogatory seeks his counsel's mental impressions, opinions, and outline and analysis of the case.

The Court will also overrule Plaintiff's objection that the interrogatory asks Plaintiff to identify those facts upon which he may rely to prove his case. Plaintiff has mischaracterized [*6] the interrogatory. Rather than asking what facts Plaintiff intends to rely upon at trial, it merely asks him to explain "how the occurrence com-plained of in [the] Complaint took place," to identify his damages, and to state the prognosis for his medical con-dition. Such a request is proper.

Accordingly, the Court will grant Defendants' Mo-tion to Compel as to Interrogatory No. 4.


This interrogatory seeks information about Plaintiff's previous hospitalizations. Plaintiff does not object to this interrogatory but states that the requested information "can be derived from the medical records of the Plaintiff that have been or are being obtained by the Defendants pursuant to deposition subpoenas."

The Court agrees with Defendants that this is an in-sufficient response. While Fed. R. Civ. P. 33(d) allows a party to answer an interrogatory by producing business records in certain circumstances, that rule applies only to the business records "of the party upon whom the inter-rogatory has been served." Fed. R. Civ. P. 33(d). The business records option does not apply here, because the medical records are the business records of various non-party hospitals and not [*7] those of Plaintiff. Further-more, Defendants should not be required to subpoena this information from third parties. Plaintiff, as the re-sponding party, cannot shift the expense and burden to Defendants to obtain this information from Plaintiff's medical providers. The Motion to Compel will therefore be granted as to this interrogatory.



2001 U.S. Dist. LEXIS 25278, *

This interrogatory asks Plaintiff to provide the total dollar amounts of any claims he is making for lost earn-ings or for the impairment of future earning capacity. It also asks Plaintiff to identify any accountant or other person with whom he has consulted or upon whom he has relied in calculating the amount of claimed earnings losses and to provide "the financial assumptions" that he or his representatives have made in performing the calcu-lations.

Plaintiff states in his response that the amount of his economic damages is being computed by an economist expert and that the requested information will be pro-vided when his expert's report is due. He also sates that under Rule 33(d), "the past medical expenses can be de-rived from medicals [sic] obtained by Defendants pursu-ant to deposition subpoenas."

The Court finds this [*8] response to be insufficient in several respects. First, directing Defendants to Plain-tiff's medical records and/or providing information about Plaintiff's medical expenses is non-responsive to this request for lost earnings information. Second, even if the medical records were responsive, they are not business records of Plaintiff and the Rule 33(d) option to produce business records is inapplicable. Finally, as stated in the discussion of Interrogatory No. 4, Plaintiff is required to provide Defendants with what damages information he presently possesses. The fact that Plaintiff may later sup-plement his interrogatory response with an expert report does not permit him to refuse to respond at the present time with whatever discoverable information he pres-ently holds. See Bohannon, 127 F.R.D. at 538 (party has duty to answer interrogatory with whatever information he has; Fed. R. Civ. P. 26(e) provides procedure for sup-plementing response).

The Motion to Compel will therefore be granted as to this interrogatory. n1

n1 The Court notes that a party is not re-quired to identify a non-testifying, consulting ex-pert and that discovery is generally not allowed regarding the facts known or opinions held by such an expert. See Fed. R. Civ. P. 26(b)(4)(B). Plaintiff, however, did not object to this inter-rogatory on that basis, and, thus, the Court makes no ruling as to whether the interrogatory is objec-tionable as requesting discovery regarding a non-testifying, consulting expert.

[*9]


This interrogatory asks Plaintiff to provide various information about all claims or suits for injury or disabil-

ity, "except for the present lawsuit." Plaintiff responded by stating: "I have never filed any previous lawsuits or any other type of claim other than my claim for disability related to the matters at issue in this action." (Emphasis added.) Plaintiff did not provide any of the requested information as to that claim for disability. Plaintiff states in his opposition to the Motion to Compel that his re-sponse fully answers the interrogatory.

The Court reads Plaintiff's response to mean that he has filed a claim for disability and that the claim is re-lated to the matters raised in this lawsuit. Plaintiff appar-ently believes that because his disability claim relates to the instant lawsuit, it falls within the interrogatory's "pre-sent lawsuit" exception and he is not required to provide the requested information as to the claim. The Court dis-agrees, and finds that any disability claim which Plaintiff has filed does not fall within the exception. Plaintiff is therefore required to provide the requested information.

Defendants state in their reply [*10] brief that they have reason to believe that more than one disability claim has been filed by Plaintiff, but they do not explain the basis for that belief. At most, the Court can instruct plaintiff to fully answer this interrogatory as to all claims for disability. The Motion to Compel will be granted as to this interrogatory.


This interrogatory states:

Please state with specificity each and every alleged departure from standard, approved medical practice you or your representative are alleging against J.E. Val-Mejias, M.D. in this case.

Plaintiff objects to this interrogatory on the basis that it seeks to discover his counsel's mental impressions and opinions and counsel's "outline and analysis" of the case. Plaintiff also objects to this interrogatory on the grounds that it requests medical expert opinion, and he states that such information will be provided to Defen-dants "in accordance with the Federal Rules of Civil Pro-cedure." The Court will overrule these objections for the same reasons discussed above in connection with Inter-rogatory No. 4.

The Court notes that Plaintiff has asserted an addi-tional objection to this interrogatory [*11] in his opposi-tion to the Motion to Compel, which was not asserted in his initial response to the interrogatory. In his opposition brief, Plaintiff asserts that the interrogatory is objection-able on the basis that it asks Plaintiff to provide each and every fact in support of his allegation that Dr. Val-Mejias departed from the standard of care.


2001 U.S. Dist. LEXIS 25278, *

The Court would have been inclined to overrule this objection, finding that Plaintiff waived it by failing to assert it in his initial objections. See Starlight Int'l, Inc. v. Herlihy, 181 F.R.D. 494, 496 (D. Kan. 1998) (quoting Fed. R. Civ. P. 33(b)(4) ("untimely objections are 'waived unless the party's failure to object is excused by the court for good cause shown.'"). Defendants, however, have not argued waiver. Instead, Defendants concede in their reply brief that contention interrogatories are im-proper if they ask the responding party to provide each and every fact supporting the identified allegations. De-fendants properly recognize that contention interrogato-ries should instead ask only for the material or principal facts supporting Plaintiff's contentions. See IBP, Inc., v. Mercantile Bank of Topeka, 179 F.R.D. 316, 321 (D. Kan. 1998). [*12] In their reply brief, Defendants thus urge the Court to compel Plaintiff to respond to this in-terrogatory by providing the "material or principal facts" requested.

The Court will decline to heed Defendants' request, inasmuch as this particular interrogatory does not ask Plaintiff to provide "each and every fact" in support of certain allegations. Rather, it merely asks Plaintiff to identify each alleged departure from standard, approved medical practice made by Dr. J.E. Val-Mejias. To com-pel Plaintiff to provide the principal or material facts supporting his allegation that Dr. Val-Mejias departed from the standard of care, as Defendants request, would have the effect of rewriting this interrogatory. The Court does not find the interrogatory to be objectionable as written. The Court will therefore compel Plaintiff to an-swer Interrogatory No. 13 as written.


This interrogatory asks Plaintiff to state whether he has been convicted of any felony or misdemeanor, and, if so, to state the nature, date, and place of the conviction. Plaintiff objects on the basis that the interrogatory seeks information that is neither relevant nor calculated to lead to the discovery [*13] of relevant evidence. He also ob-jects on grounds that "it is annoying, harassing, and un-duly burdensome." Plaintiff then states that, subject to and without waiving those objections, he has not been convicted of a felony. In his opposition to the Motion to Compel, Plaintiff adds that "upon information and be-lief," he has never been convicted of any crime involving dishonesty or false statement.

Defendants contend that Plaintiff should be required to provide information about all convictions so that De-fendants can decide for themselves whether the crime involves dishonesty or false statement, the terminology used in Fed. R. Evid. 609(a). n2 The Court agrees that the information is discoverable. Defendants should be provided with the requested information so that they may

make their own determination as to whether the convic-tion falls within Fed. R. Evid. 609(a)(2) and so that they may raise whatever arguments they deem necessary at trial regarding the conviction's admissibility. The Court will grant the Motion to Compel as to this interrogatory.

n2 Fed. R. Evid. 609(a)(2) provides that evi-dence that a witness committed a crime is admis-sible if it involved dishonesty or false statement. Otherwise, it is admissible only if the crime was punishable by death or imprisonment in excess of one year. Fed. R. Evid. 609(a)(2).

[*14]

7. Interrogatory Nos. 15-17

Each of these three interrogatories asks Plaintiff to "state each and every basis for your allegation, including each and every fact supporting your allegation" con-tained in various paragraphs of the Complaint. Plaintiff asserts the same objections that he asserted in response to Interrogatory No.4. The Court will overrule the objec-tions for the same reasons discussed above in connection with Interrogatory No. 4.

In his opposition to the Motion to Compel, Plaintiff also objects, for the very first time, that these interrogato-ries ask for "each and every fact" supporting the identi-fied allegations. In their reply brief, Defendants fail to argue waiver and once again state that Plaintiff need not provide "each and every fact" but only "the material or principal facts" supporting the identified allegations.

Because these interrogatories do ask for "each and every fact" and because Defendants have conceded that Plaintiff need only provide the material or principal facts supporting the specified allegations, the Court will order Plaintiff to respond by providing only the material or principal facts that he contends support the specified allegations. [*15]

8. Interrogatory Nos. 18-20

These interrogatories ask Plaintiff to provide various information about a number of Plaintiff's claims and al-legations. Plaintiff asserts the same objections that he made in response to Interrogatory No. 4. The Court will overrule those objections for the same reasons set forth above in connection with Interrogatory No. 4.

As in the case of Interrogatory Nos. 13 and 15-17, Plaintiff also objects for the very first time in his opposi-tion to the Motion to Compel that these interrogatories ask him to provide "each and every fact" supporting these allegations. Defendants once again fail to argue waiver and state hat Plaintiff need only provide the prin-cipal or material facts. As with Interrogatory Nos. 13 and


2001 U.S. Dist. LEXIS 25278, *

15-17, Defendants ask the Court to compel Plaintiff to answer these interrogatories with the material or princi-pal facts supporting Plaintiff's allegations.

The Court will, once again, decline to heed Defen-dants' request. These particular interrogatories do not ask Plaintiff to provide "each and every fact" in support of his various allegations. n3 Rather, they merely ask Plain-tiff to provide certain, specified information about his allegations. [*16] Interrogatory No. 18 asks Plaintiff to identify each statement or act by Dr. Val-Mejias that allegedly fraudulently concealed, or attempted to fraudu-lently conceal, the claimed negligent insertion of Plain-tiff's pacemaker. Interrogatory No. 19 asks Plaintiff to state "how your pacemaker was negligently installed" as pled in paragraphs 23 and 24 of the Complaint. Inter-rogatory No. 20 asks Plaintiff to identify all information that Dr. Val-Mejias allegedly failed to provide Plaintiff and to explain how Plaintiff's decisions regarding his medical care would have differed had he received the information allegedly not provided.

n3 It appears to the Court that Defendants' reply brief mistakenly lumped these interrogato-ries together with Interrogatory Nos. 15-17.

To compel Plaintiff to provide the principal or mate-rial facts supporting these claims and allegations, as De-fendants now request, would have the effect of com-pletely rewriting these interrogatories. The Court does not find the interrogatories to be objectionable [*17] as written. They are only asking Plaintiff to provide certain, specific information about his claims and allegations, information that Defendants are entitled to receive. The Court will therefore compel Plaintiff to answer Interroga-tory Nos. 18-20 as written.

B. Defendants' First Request for Production of Documents

1. Request No. 1

This request is as follows:

All documents either in the possession or subject to the possession of plaintiff, any insurance company or adjusting company acting in plaintiff's behalf, or in the pos-session or plaintiff's attorney, pertaining to the claim herein. Documents which are claimed to be privileged as a result of at-torney/client privilege or attorney work product may be excluded, but it is re-quested that they be identified, together with this specific privilege claimed[.]

Plaintiff objects on the grounds that the request "is harassing, annoying, unduly burdensome and seeks to impose an obligation on Plaintiff not imposed by the Rules of Civil Procedure." Plaintiff also states in his re-sponse to the request that he does not have the burden to obtain records from third parties as requested. He then states that subject to and [*18] without waiving the foregoing objections, "all responsive documents are available for inspection."

The Court agrees with Plaintiff that this request is unduly burdensome. The use of the term "pertaining to," often makes a discovery request overly broad and unduly burdensome on its face. See Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D. Kan. 1996). n4 Such a phrase often requires the answering party "to engage in mental gym-nastics to determine what information may or may not be remotely responsive." Id. This is the case here, where the request seeks all documents "pertaining to the claim herein" and not to a single or discrete event or fact. The request is so broad and open-ended that Plaintiff could not possibly fully answer without undue burden. See id. (finding interrogatory seeking the identity of all docu-ments "'pertaining to' comparisons or rankings of the plants of [defendant] for 'any reason'" to be so open-ended and overly broad on its face that defendant could not fully answer without undue burden).

n4 This Court usually requires a party assert-ing undue burden to supply some type of eviden-tiary support for its objection. See Kutilek v. Gannon, 132 F.R.D. 296, 300 (D. Kan. 1990) (party objecting to discovery as unduly burden-some "cannot rely on some generalized objec-tions, but must show specifically how each inter-rogatory or request is burdensome and/or overly broad by submitting affidavits or some detailed explanation as to the nature of the claimed bur-den."). Such support will not be required here, however, since the request is overbroad and un-duly burdensome on its face. See Mackey, 167 F.R.D. at 197 ("A party resisting facially over-broad or unduly burdensome discovery need not provide specific, detailed support.").

[*19]

Despite having a valid objection to a request, a party, generally speaking, is still required to answer the request to extent it is not objectionable. Id. at 198 (citing Fed. R. Civ. P. 33(b)(1)). An answer will not be required, however, when the request is overly broad and unduly burdensome on its face unless adequate guidance exists as to what extent the interrogatory is not objectionable. Id. (citing Nelson v. Telecable of Overland Park, 1996


2001 U.S. Dist. LEXIS 25278, *

U.S. Dist. LEXIS 2764, 1996 WL 111250, at *2 (D. Kan. Feb. 29, 1996)).

Here, the parties here have provided insufficient guidance for the Court to determine the extent that the request is not objectionable, and, thus, no answer should be required. The Court notes, however, that Plaintiff has stated that, subject to his objections, "all responsive documents are available for inspection." To the extent Plaintiff has not already provided copies of those docu-ments to Defendants, he shall do so. Said documents shall be produced to Defendants within fourteen (14) days of the date of filing of this Order.

2. Request No. 2

This request seeks "all statements or records of par-ties and witnesses taken by anyone [*20] before the date of the filing of the lawsuit herein." Plaintiff objects on the grounds that it seeks information protected by the attorney-client privilege and the attorney work product doctrine. He states that his attorney has taken some statements from Plaintiff. He further states that he is un-aware of any statements or recordings given by Defen-dants or any witnesses and that he knows of no docu-ments responsive to this request other than his own statements. Defendants do not discuss Request No. 2 in either their initial or reply brief, other than to state gener-ally that they are seeking to compel answers to all four of their requests for production.

Plaintiff's objection to producing any of Plaintiff's statements will be sustained. Plaintiff has responded that he is unaware of any other documents responsive to this request. The Court cannot compel the production of documents that do not exist. The Motion to Compel will therefore be denied as to this request.

3. Request No. 3

This requests seeks the following:

All memoranda, writings, records, tape recordings . . . or documents of any nature concerning any claim for bene-fits/damages made by or on behalf of the plaintiff[. [*21] ]

Plaintiff responded as follows:

Plaintiff objects to Requests for Produc-tion No. 3 on the grounds that it is overly broad, annoying, harassing and unduly burdensome. Plaintiff further objects on the grounds that it seeks information pro-tected by the attorney-client privilege and the attorney work product doctrine. Plain-

tiff has produced all documents in his possession, not otherwise privileged, pur-suant to Initial Disclosures. Plaintiff has available family photographs for review at the offices of Plaintiff's counsel. Subject to, and without waiving the foregoing ob-jections, Plaintiff states that all responsive documents have been produced.

In their Motion to Compel, Defendants state that Plaintiff's representation that he has produced all non-privileged documents "pursuant to Initial Disclosures" is false and that no documents whatsoever were produced with Plaintiff's initial disclosures and that no documents have been produced since the initial disclosures.

Rather than responding directly to this rather serious allegation, Plaintiff merely states in his opposition to the Motion to Compel that "Plaintiff stands by this response" and that "all responsive documents [*22] have been pro-duced." Doc. 78 at 7. He also states in his opposition that the request "is in violation of Fed. R. Civ. P. 26(b)(1)" to the extent it seeks information about unrelated claims. Id. The Court interprets this to be a relevance objection.

Defendants counter that because Plaintiff is claiming physical impairment in this case, any past claims of dis-ability are relevant. They argue that this is particulary true with respect to a claim for Social Security benefits that Plaintiff apparently filed in March 1997. n5 The Court agrees that any past disability claims are relevant, and will grant the Motion to Compel as to this request.

n5 According to Defendants, a medical re-cord they obtained through a subpoena indicates that Plaintiff filed a claim for Social Security dis-ability benefits "around March of 1997." Doc. 61 at 14. Plaintiff does not confirm or deny whether he filed such a claim.

4. Request No. 4

This request seeks "all tax returns of plaintiff from 1990 through 2000." Plaintiff stated [*23] in his initial response that he would "provide those upon receipt." He also stated that he would sign an appropriate release to the Internal Revenue Service (IRS) if defense counsel would provide one.

As best as the Court can determine, no tax returns have been produced. If the tax returns have been re-ceived by Plaintiff or are otherwise in his possession but he has not yet produced them, Plaintiff shall produce them to Defendants within five (5) days of the date of filing of this Order. If Plaintiff has not received the re-turns or they are otherwise not in his possession, he shall


2001 U.S. Dist. LEXIS 25278, *

sign an appropriate release so that Defendants may ob-tain the returns. The release shall be signed and returned to Defendants' counsel within five (5) days of the date of filing of this Order.

C. Social Security Records Release

Defendants move for an order compelling Plaintiff to sign a release so that Defendants may obtain his Social Security records. As noted above, it appears that Plaintiff may have filed a claim for Social Security disability benefits in March 1997. Defendants served a subpoena on the Social Security Administration (SSA) but were informed that the SSA will [*24] not provide the records unless Plaintiff signs a release or Defendants obtain a court order. Plaintiff has refused to sign a release. He argues generally that "he cannot be forced to turn over any medical or other records that do not pertain to the injuries being addressed in this case." Doc. 78 at 7.

The Court is not persuaded by Plaintiff's argument. If Plaintiff did indeed file a claim for Social Security disability benefits in March 1997 (which Plaintiff has yet to confirm or deny), that claim would be relevant to his claim in this action that he has suffered permanently dis-abling injuries as a result of the Defendants' claimed neg-ligence, which purportedly occurred in March through June 1997. Plaintiff has failed to show why this informa-tion would not be relevant to this action. The Court will therefore order Plaintiff to sign a release for his Social Security records. See Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) (district court has authority to order plaintiff to provide consent for release of Social Security records). Plaintiff shall sign the release and re-turn to Defendants' counsel within five (5) days of the date of filing of [*25] this Order.

D. Medical Records Releases

Defendants also move for an order compelling Plaintiff to sign a release so that Defendants may obtain his medical records. Defendants state that Plaintiff has refused to sign any medical records releases. The re-quested release is a general release directed to hospitals, medical institutions, and various health care providers and is not limited to any particular time period, injury, or medical condition. See Consent to Release Information, Defendants' Exhibit J to doc. 61. Given Plaintiff's refused to sign any medical records release, Defendants have served subpoenas on Plaintiff's health care providers, but have received very few records in response.

Plaintiff argues that he should not be forced to turn over any medical records "that do not pertain to the inju-ries being addressed in this case" because he has waived the physician-patient privilege only as to the specific injuries being addressed in this case and not to any other injuries or medical conditions. Doc. 78 at 7. Defendants

argue, on the other hand, that Plaintiff completely waived the physician-patient privilege by bringing this lawsuit.

The Court agrees with Defendants. [*26] The Kan-sas statute governing the physician-patient privilege is found at K.S.A. 60-427. Subsection (d) sets forth the cir-cumstances under which the privilege is waived. It pro-vides as follows:

There is no privilege under this section in an action in which the condition of the pa-tient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party.

K.S.A. 60-427(d).

This Court has repeatedly rejected the concept of a limited waiver under K.S.A. 60-427(d). See, e.g., Lake v. Steeves, 161 F.R.D. 441 (D. Kan. 1994); Evertson v. Dalkon Shield Claimants Trust, 1993 U.S. Dist. LEXIS 9670, 1993 WL 245972 (D. Kan. 1993); Bryant v. Hilst, 136 F.R.D. 487 (D. Kan. 1991). The Bryant case is most instructive here. In Bryant, Judge Saffels affirmed a de-cision of Magistrate Judge Newman which expressly rejected a plaintiff's argument that the privilege is waived only as to the medical condition at issue. Judge Saffels stated:

In State v. Campbell, 210 Kan. 265, 281, 500 P.2d 21 (1972), [*27] the Kansas Supreme Court specifically stated that "there is no privilege under K.S.A. 1971 Supp. 60-427(d) (physician-patient privi-lege) in an action in which the condition of the patient is an element or factor of the claim or defense of the patient." The court in Campbell followed the clear language of K.S.A. 60-427. There is no privilege in an action in which the condition of the pa-tient is in issue. While a privilege is gen-erally afforded under K.S.A. 60-427(b), it is removed under K.S.A. 60-427(d). It simply does not exist. Since there is no common law physician-patient privilege, there is no privilege available to plaintiff herein. Plaintiff's argument that there is a privilege as to conditions other than the condition in issue, is without merit. The


2001 U.S. Dist. LEXIS 25278, *

statutory language, as well as that of the court, is without qualification. The issue is not waiver or partial waiver, there is simply no privilege available to the plain-tiff.

Bryant, 136 F.R.D. at 491 (emphasis added).

In light of the above, the Court finds no merit to Plaintiff's argument that he has not waived the physician-patient privilege as to any conditions other than the spe-cific injuries [*28] at issue in this case.

Plaintiff has asserted no other objections to signing the medical release. The Court will therefore order Plain-tiff to sign the medical release, which is attached as Ex-hibit J to Defendants' Memorandum in Support of De-fendants' Motion to Compel (doc. 61). Plaintiff shall sign and return the release to Defendants' counsel within five (5) days of the date of filing of this Order.

E. Employment, Insurance, and Workers' Com-pensation Records Releases

Defendants also request that Plaintiff be ordered to sign releases for Plaintiff's employment, insurance, and workers' compensation records. See Exhibits J, K, and L, attached to Defendants' Memorandum (doc. 61). Plaintiff does not address these releases in his opposition brief. The Court will therefore grant the Motion to Compel as to these records releases. Within five (5) days of the date of filing of this Order, Plaintiff shall sign and return to Defendants' counsel the above-mentioned releases.

F. Request That Plaintiff Be Required to Re-spond to Defendants' Written Discovery Prior to the Taking of Any Party's Deposition

Defendants argue that they need Plaintiff's responses [*29] to their written discovery before they can prepare to take Plaintiff's deposition and before they can prepare to defend Dr. Val-Mejias' deposition. Plaintiff failed to address this issue in his opposition to the Motion to Compel. The Court will grant this request. No deposition of any party shall take place sooner than eleven (11) days after Plaintiff has answered Defendants' First Set of Interrogatories and First Requests for Production and produced documents responsive to the First Requests for Production, as provided for herein. n6

n6 The Court notes that this ruling dovetails with its ruling on Defendant Dr. J.E. Val-Mejias' Motion for Protective Order and to Quash (doc. 58), which is addressed in Part III of this Order.

G. Request for Monthly Case Management Con-ferences

Defendants also ask the Court to schedule monthly case management conferences in this case. The Court finds no pressing need at the present time for regularly scheduled conferences, and, thus, this request will be denied. [*30] The Court is, however, available, if dis-covery issues should arise, and any party may request a telephone conference with the Court.

H. Summary of Ruling on Defendants' Motion to Compel

For the reasons set forth above, the Court will grant in part and deny in part Defendant's Motion to Compel Discovery. Any supplemental written responses to De-fendants' written discovery required to be served by this Order shall be served within fourteen (14) days of the date of filing of this Order. In addition, all responsive documents ordered to be produced pursuant to this Order shall be produced to Defendants within fourteen (14) days of the date of filing of this Order. Said production shall take place at the office of Defendants' counsel or at any other location agreed upon by the parties. In addi-tion, within five (5) days of the date of filing of this Or-der, Plaintiff shall sign the appropriate records releases and return them to Defendants' counsel, as directed herein.

I. Sanctions

Defendants request that they be awarded the attor-ney fees and costs they have incurred in connection with their Motion to Compel. Federal Rule of Civil Procedure 37(a)(4)(C) [*31] allows a court to impose sanctions where, as here, a motion to compel discovery is granted in part and denied in part. Under that rule, the court may "apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just man-ner." Fed. R. Civ. P. 37(a)(4)(C).

The Court deems it appropriate to award Defendant a portion of the costs and expenses that they have in-curred with respect to this Motion to Compel. n7 To aid the Court in determining the proper amount of sanctions, Defendants' counsel shall, within twenty (20) days of the date of filing of this Order, file an affidavit itemizing the expenses, including attorney fees, that Defendants have incurred in connection with their Motion to Compel. Plaintiff shall have eleven (11) days thereafter to file a response to the affidavit, and Defendants shall have eleven (11) days thereafter to file a reply brief, if they so choose. After reviewing the briefs, the Court will issue an order specifying the amount and time of payment.


2001 U.S. Dist. LEXIS 25278, *

n7 The Court recognizes that before Rule 37(a)(4) sanctions may be imposed, it must af-ford the parties an "opportunity to be heard." See id. The Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 37(a)(4) make it clear that a court may consider the issue of sanc-tions "on written submissions." Here, Defendants specifically requested sanctions in their Memo-randum in Support of the Motion to Compel, and Plaintiff had the opportunity to respond to that request. The Court therefore finds that the parties have had sufficient "opportunity to be heard" within the meaning of Fed. R. Civ. P. 37.

[*32]

Having determined that Defendants are entitled to recover a portion of their reasonable expenses and fees, the Court must next determine whether it is Plaintiff's counsel or Plaintiff himself who should pay the sanc-tions. To the extent possible, sanctions should be im-posed only upon the person or entity responsible for the sanctionable conduct. White v. General Motors Corp. Inc., 908 F.2d 675, 685-86 (10th Cir. 1990) (imposing Rule 11 sanctions); McCoo v. Denny's, Inc., 192 F.R.D. 675, 697 (D. Kan. 2000) (imposing Rule 11, 26(g)(3), and 37(a)(4) sanctions); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 593 (D. Kan. 1999) (imposing Rule 26(g)and 37(b)and (d) sanctions). The sanctioning of a party, as opposed to the party's counsel, "requires spe-cific findings that the party was aware of the wrongdo-ing." McCoo, 192 F.R.D. at 697 (citing White, 908 F.2d at 685-86).

In the absence of any evidence that Plaintiff himself was responsible for the objections asserted to Defen-dants' discovery requests or for the arguments made in response to the Motion to Compel, the Court finds it ap-propriate [*33] to hold the law firms of Plaintiff's coun-sel n8 solely responsible for paying the monetary sanc-tions.

n8 Pursuant to Kansas Rule of Professional Conduct 5.1 and the comment thereto, the part-ners or shareholders in a law firm are responsible for making reasonable efforts to assure that all lawyers in the firm conform to the rules of pro-fessional conduct. The Court therefore holds that the law firms representing Plaintiff rather than the individual attorneys shall be responsible for pay-ment of the expenses.

III. Defendant's Motion for Protective Order and to Quash the Deposition of J.E. Val-Mejias, M.D. (doc. 58)

A. Merits of the Motion

For good cause shown, the Court will grant Defen-dant J.E. Val-Mejias, M.D.'s Motion for Protective Order and to Quash. n9 Dr. Val-Mejias shall be deposed at the offices of his attorney in Wichita, Kansas. The deposi-tion shall take place at a date and time that is mutually agreeable to Dr. Mejias and all counsel and shall take place no sooner than eleven (11) [*34] days after Plaintiff has answered Defendants' First Set of Interroga-tories and First Requests for Production and provided the documents responsive to the requests for production and signed and returned the releases, as provided for herein.

n9 The Court notes that no response was filed by Plaintiff to the Motion for Protective Or-der and to Quash. The Court therefore could have granted the Motion as uncontested. See D. Kan. Rule 7.4. Plaintiff did, however, address many of the issues raised in the Motion for Protective Or-der and to Quash in his brief in support of his Motion for Extension of Time to Designate Ex-pert Witnesses (doc. 73). The Court will therefore decline to treat the Motion for Protective Order and to Quash as uncontested. The Court, how-ever, instructs Plaintiff's counsel to comply with D. Kan. Rule 7.1 when opposing any other mo-tions filed in this case.

B. Sanctions

Although Defendants have not requested sanctions, the Court must nevertheless address the issue. Rule 26(c) incorporates [*35] the sanctions provisions of Rule 37(a)(4).

Rule 37(a)(4)(A) governs the imposition of sanctions here. It provides as follows:

If the motion is granted . . ., the court shall, after affording an opportunity to be heard, require the party . . . whose con-duct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery, without court action, or that


2001 U.S. Dist. LEXIS 25278, *

the opposing party's nondisclosure, re-sponse, or objection was substantially jus-tified, or that other circumstances make an award of expenses unjust.

Fed. R. Civ. P.37(a)(4)(A).

Based on the present record, it appears that the im-position of sanctions against Plaintiff's counsel may be appropriate here. Rule 37(a)(4)(A), however, requires the Court to afford the parties the "opportunity to be heard" before imposing sanctions. A hearing is not necessary, and the Court may consider the issue of sanctions "on written submissions." See Advisory Committee [*36] Notes to the 1993 Amendments to Rule 37(a)(4).

Because Defendants did not request sanctions in their Motion for Protective Order, there has been no briefing on this issue, and, thus, no "opportunity to be heard" as required by the Rule. The Court will therefore order Plaintiff and his counsel, to show cause, in writing, within twenty (20) days of the filing of this Order, why the Court should not require the law firms of Plain-tiff's counsel to pay the reasonable expenses and fees that Defendants have incurred in making this Motion for Pro-tective Order. Defendants shall have eleven (11) days thereafter to file a response thereto, if they so choose. In the event the Court determines that sanctions should be imposed, the Court will issue an order setting forth a schedule for the filing of an affidavit reflecting the amount of fees and expenses that Defendants have in-curred, and for the filing of any related briefs.

IV. Defendants' Request to Strike (doc. 94)

Defendants seeks to strike the following pleadings: (1) Plaintiff's Reply to Defendants' Response to Plain-tiff's Motion for Extension of Time to Designate Expert Witnesses; and (2) Plaintiff's Certificate [*37] of Com-pelling Circumstances for Fax Filing. The Court will deny the request.

IT IS THEREFORE ORDERED that the Motion to Compel Discovery (doc. 60) filed by Defendants J.E. Val-Mejias, M.D., and The Galichia Medical Group, P.A., is granted in part and denied in part, as set forth herein. Any supplemental written responses to Defen-dants' written discovery required to be served by this Order shall be served within fourteen (14) days of the date of filing of this Order. In addition, all responsive documents ordered to be produced pursuant to this Order shall be produced to Defendants within fourteen (14) days of the date of filing of this Order, except for the requested tax returns. Said production shall take place at the office of Defendants' counsel or at any other location agreed upon by the parties. If Plaintiff has received cop-

ies of his tax returns or they are otherwise in his posses-sion but he has not yet produced them, Plaintiff shall produce them to Defendants within five (5) days of the date of filing of this Order. If Plaintiff has not received the returns or they are otherwise not in his possession, he shall sign an appropriate release so [*38] that Defen-dants may obtain the returns. The release shall be signed and returned to Defendants' counsel within five (5) days of the date of filing of this Order. In addition, within five (5) days of the date of filing of this Order, Plaintiff shall sign and return to Defendants' counsel the releases for his Social Security, medical, employment, insurance, and workers' compensation records, which are attached as Exhibits H, J, K and L, to doc. 61.

IT IS FURTHER ORDERED that no deposition of any party shall take place sooner than eleven (11) days after Plaintiff has answered Defendants' First Set of In-terrogatories and First Requests for Production and pro-duced documents responsive to the First Requests for Production, as provided for herein.

IT IS FURTHER ORDERED that Defendants' re-quest for monthly case management conferences (doc. 60) is denied.

IT IS FURTHER ORDERED that Defendants' re-quest for sanctions relating to Defendants' filing of their Motion to Compel (doc. 60) is granted in part. Within twenty (20) days of the date of filing of this Order, De-fendants' counsel shall file an affidavit itemizing the ex-penses, including [*39] attorney fees, that Defendants have incurred in connection with their Motion to Com-pel. Plaintiff shall have eleven (11) days thereafter to file a response to the affidavit, and Defendants shall have eleven (11) days thereafter to file a reply brief, if they so choose.

IT IS FURTHER ORDERED that the Motion for Protective Order and to Quash the Deposition of J.E. Val-Mejias, M.D., (doc. 58) is granted. Dr. Val-Mejias shall be deposed at the offices of his attorney in Wichita, Kansas. The deposition shall take place at a date and time that is mutually agreeable to Dr. Mejias and all counsel and shall take place no sooner than eleven (11) days after Plaintiff has answered Defendants' First Set of Interrogatories and First Request for Production and pro-duced documents responsive to the First Request for Production, as provided for herein.

IT IS FURTHER ORDERED that Plaintiff and his counsel shall, within twenty (20) days of the date of filing of this Order, show cause, in writing, why the Court should not require the law firms of Plaintiff's counsel to pay the reasonable expenses and fees incurred by Defendants in making the Motion [*40] for Protec-tive Order and to Quash the Deposition of J.E. Val-Mejias, M.D. (doc. 58). Defendants shall have eleven


2001 U.S. Dist. LEXIS 25278, *

(11) days thereafter to file a response thereto, if they so choose.

IT IS FURTHER ORDERED that Defendants' Re-quest to Strike Plaintiff's Reply to Defendants' Response to Plaintiff's Motion for Extension of Time to Designate Expert Witnesses and to Strike Plaintiff's Certificate of Compelling Circumstances for Fax Filing (doc. 94) is denied.

IT IS SO ORDERED.

Dated in Kansas City, Kansas on this 9th day of Oc-tober 2001.

David J. Waxse

United States Magistrate Judge


Tab 2



Analysis As of: Dec 12, 2006

THE PACIFIC LUMBER CO, ET AL., Plaintiffs, v. NATIONAL UNION FIRE INSURANCE CO, OF PITTSBURGH, PA, ET AL., Defendant and Counter-

Claimant.

No. C 02-4799 SBA (JL)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


January 5, 2005, Decided

PRIOR HISTORY: Pac. Lumber Co v. Nat'l Union Fire Ins. Co, 220 F.R.D. 349, 2003 U.S. Dist. LEXIS 24585 (N.D. Cal., 2003)

DISPOSITION: Defendant ordered to respond to inter-rogatories.

COUNSEL: [*1] For Pacific Lumber Company, Plain-tiff: Bruce Stewart Flushman, Edgar B. Washburn, Scott Jonathan Kaplan, Louis A. Ferreira, IV, Shaye Diveley, Stoel Rives LLP, San Francisco, CA; Frank Shaw Bacik, John A. Behnke, Carter Behnke Oglesby & Bacik, Ukiah, CA.

For Scotia Pacific Company, LLC, Maxxam Inc., Max-xam Group Inc., Maxxam Group Holdings Inc., Charles E. Hurwitz, John Campbell, Plaintiffs: Bruce Stewart Flushman, Edgar B. Washburn, Scott Jonathan Kaplan, Shaye Diveley, Stoel Rives LLP, San Francisco, CA; Frank Shaw Bacik, John A. Behnke, Carter Behnke Oglesby & Bacik, Ukiah, CA.

For National Union Fire Insurance, Company of Pitts-burgh, PA, Defendant: James P. Wagoner, Jay A. Christofferson, McComick Barstow Sheppard Wayte Carruth, WAGONER LLP, Fresno, CA; Jennifer M. Bozeat, Terry Marie Weyna, Lewis Brisbois Bisgaard & Smith LLP, San Francisco, CA; Lane J. Ashley, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, CA.

For Transportation Insurance Company, an Illinois cor-poration, 3rd party defendant: Sherman C. Lee, Cortner McNaboe Colliau & Elenius, San Francisco, CA; Nor-man J. Hamill, Sepanik Cortner McNaboe Colliau Elenius, San Francisco, CA.

For General Star [*2] Indemnity Company, an Ohio corporation, 3rd party defendant: Alan H. Barbanel, Katy A. Nelson, Barbanel & Treuer, Los Angeles, CA.

For Insurance Company of North America, a Pennsyl-vania corporation, 3rd party defendant: Alan S. Berman, Armen K. Hovannisian, Berman & Aiwasian, Los Ange-les, CA.

For National Casualty Company, a Wisconsin corpora-tion, 3rd party defendant: David A. Hadlen, Sheryl W. Leichenger, Selman Breitman LLP, Los Angeles, CA.

For Old Republic Insurance Company, a Minnesota cor-poration, 3rd party defendant: Bruce H. Winkelman, Berkeley, CA.

For Steadfast Insurance Company, a New York corpora-tion, American Guarantee & Liability Insurance Com-pany, a New York corporation, 3rd party defendants: James Ronald Tenero, Nicholas Banko, Esq., Selman Breitman LLP, San Francisco, CA.

For National Union Fire Insurance Company of Pitts-burgh, PA, Counter-claimant: James P. Wagoner, Jay A.


2005 U.S. Dist. LEXIS 1773, *

Christofferson, McComick Barstow Sheppard Wayte Carruth, WAGONER LLP, Fresno, CA.

For John Campbell, Charles E. Hurwitz, Maxxam Group Holdings Inc., Maxxam Group Inc., Maxxam Inc., Scotia Pacific Company, LLC, Counter-defendants: Frank Shaw Bacik, John A. Behnke, Carter [*3] Behnke Oglesby & Bacik, Ukiah, CA; Shaye Diveley, Stoel Rives LLP, San Francisco, CA.

For Pacific Lumber Company, Counter-defendant: Frank Shaw Bacik, John A. Behnke, Carter Behnke Oglesby & Bacik, Ukiah, CA; Shaye Diveley, Bruce Stewart Flush-man, Stoel Rives LLP, San Francisco, CA.

For National Union Fire Insurance Company of Pitts-burgh, PA, 3rd party plaintiff: James P. Wagoner, Jay A. Christofferson, McComick Barstow Sheppard Wayte Carruth, WAGONER LLP, Fresno, CA.

For American Guarantee & Liability Insurance Company a New York corporation, Steadfast Insurance Company a New York corporation, 3rd party defendants: James Ronald Tenero, Nicholas Banko, Esq., Selman Breitman LLP, San Francisco, CA.

For General Star Indemnity Company, an Ohio corpora-tion, 3rd party defendant: Alan H. Barbanel, Katy A. Nelson, Barbanel & Treuer, Los Angeles, CA.

For Insurance Company of North America, a Pennsyl-vania corporation, 3rd party defendant: Alan S. Berman, Armen K. Hovannisian, Berman & Aiwasian, Los Ange-les, CA.

For National Casualty Company a Wisconsin corpora-tion, 3rd party defendant: David A. Hadlen, Sheryl W. Leichenger, Selman Breitman LLP, Los Angeles, CA. [*4]

For Old Republic Insurance Company a Minnesota cor-poration, 3rd party defendant: Bruce H. Winkelman, Berkeley, CA.

For Transportation Insurance Company, an Illinois cor-poration, 3rd party defendant: Sherman C. Lee, Cortner McNaboe Colliau & Elenius, San Francisco, CA; Nor-man J. Hamill, Sepanik Cortner McNaboe Colliau Elenius, San Francisco, CA.

For General Star Indemnity Company, an Ohio corpora-tion, Cross-claimant: Katy A. Nelson, Barbanel & Treuer, Los Angeles, CA.

For American Guarantee & Liability Insurance Company a New York corporation, Steadfast Insurance Company a New York corporation, Cross-defendants: James Ronald Tenero, Nicholas Banko, Esq., Selman Breitman LLP, San Francisco, CA.

For Insurance Company of North America a Pennsyl-vania corporation, Cross-defendant: Alan S. Berman, Armen K. Hovannisian, Berman & Aiwasian, Los Ange-les, CA.

For National Casualty Company a Wisconsin corpora-tion, Cross-defendant: Norman J. Hamill, Sepanik Cortner McNaboe Colliau Elenius, San Francisco, CA.

For National Union Fire Insurance Company of Pitts-burgh, PA, Cross-defendant: James P. Wagoner, Jay A. Christofferson, McComick Barstow Sheppard Wayte Carruth, [*5] WAGONER LLP, Fresno, CA.

For Old Republic Insurance Company a Minnesota cor-poration, Cross-defendant: Bruce H. Winkelman, Berke-ley, CA.

For Transportation Insurance Company, an Illinois cor-poration, Cross-defendant: Sherman C. Lee, Cortner McNaboe Colliau & Elenius, San Francisco, CA; Nor-man J. Hamill, Sepanik Cortner McNaboe Colliau Elenius, San Francisco, CA.

JUDGES: JAMES LARSON, United States Magistrate Judge.

OPINION BY: JAMES LARSON

OPINION:

ORDER GRANTING GENERAL STAR'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES (Docket # 309)

Introduction

All discovery in this case has been referred by the district court (Hon. Saundra Brown Armstrong) as pro-vided by 28 U.S.C. § 636(b) and Civil Local Rule 72. Discovery cut-off was December 15, 2004 and the last day to file discovery motions under the version of Civil Local Rule 26-2 in effect until January 1, 2005 was De-cember 27, 2004.

The parties met and conferred by letter and tele-phone to attempt to resolve this dispute. This Court pre-fers that parties meet and confer in person and reserves the right to order counsel to gather in a small unventi-lated witness interview room for that purpose.

Background [*6]


2005 U.S. Dist. LEXIS 1773, *

On August 23, 2004, General Star, a third-party de-fendant brought into this lawsuit by defendant National Union ("NUFI"), propounded 18 contention interrogato-ries to National Union to determine, among other things, whether there is any theory or scenario under which Na-tional Union contends that General Star's umbrella poli-cies might be obligated to defend or indemnify plaintiff Pacific Lumber Company ("PALCO"), and whether Na-tional Union is aware of any evidence or documents showing that any Wrigley plaintiff alleged or sustained physical injury to tangible property, loss of use of tangi-ble property, or bodily injury before July 1, 1991, the date of expiration of General Star's policy with Pacific Lumber. Resolution of this part of the case hinges on this information.

Contention interrogatories are-meant to narrow the issues in a lawsuit. Narrowing the issues to either the most significant or the most viable enables the parties and the court to bring the lawsuit to a close, either through settlement or trial. The former is presumably more economical as to both financial and judicial re-sources. General Star propounded its interrogatories to National Union to attempt to resolve [*7] the lawsuit prior to an expensive trial. It asked for specific facts and documents which support National Union's contentions that the plaintiffs in the underlying lawsuit (the Wrigley lawsuit, hence the "Wrigley plaintiffs"), over which many insurance companies are battling, suffered alleged or actual damage to tangible property prior to 1991, the expiration date of General Star's policy with Pacific Lumber. Pacific Lumber settled with the plaintiffs in the underlying lawsuit and tendered that settlement to its insurers, who are passing it around like a hot potato.

National Union attempts to score with its quick pass in this particular discovery dispute. Not only do its re-sponses not narrow the issues in the lawsuit, they actu-ally manage to obscure, obfuscate and broaden the issues enough to render them virtually unrecognizable.

Factual Background

The landowners in the watershed on the North Fork of the Elk River sued for damages to their farms and homes caused by flooding and siltation which was in turn caused by Pacific Lumber's logging roads and logging debris, which denuded the hillsides and choked the streams with soil and timber slash. The streams in turn clogged [*8] the North Fork of the Elk River, which rose several feet on its new floor of silt, where it had previously been paved in cobbles and gravel. The rise in the water level and the amount of muck in the water led the Wrigley plaintiffs to suffer clogged water pumps, stinking drinking water, and flooded homes, orchards and barns. As "the Wrigley plaintiffs," they sued Pacific

Lumber, which settled, paid them and then tendered the costs of settlement and defense to its insurers.

Contention Interrogatories

General Star's policy with Pacific Lumber expired in 1991. All it wants to know from National Union is what specific damage National Union contends that the Wrig-ley plaintiffs either allege they sustained or actually sus-tained while General Star's policy was in effect, that is, prior to 1991. It doesn't ask what Pacific Lumber did, either before or after 1991. It doesn't ask what happened to the Elk River, either before or after 1991. It asks only about the plaintiffs' damages.

National Union contends that General Star's dissatis-faction with its responses is "nonsense." It contends that it is reasonable to answer questions about specific dam-ages to Wrigley plaintiffs [*9] with information about acts of Pacific Lumber because "Any facts regarding Pacific Lumber's timber harvesting practices which took place prior to July 1, 1991 clearly relate to alleged and actual pre-1991 damages to tangible property' since such damages were alleged by the Wrigley plaintiffs to have emanated from Pacific Lumber's harvesting practices." (Opposition at 8)

National Union contends that it is legitimate for it to respond to General Star's Interrogatory Nos. 3 and 4 with "facts indicating the Wrigley plaintiffs suffered damages from 1985 onward based on Pacific Lumber's logging and harvesting practices and information indicating the damage occurred to the Elk River and/or the Wrigley plaintiffs real or personal property occurring both before and after 1991." (Id.)

National Union advises General Star to "disregard" any irrelevant information in its discovery responses. (Id.) Specifically, damage to Freshwater Creek is rele-vant because reports by government agencies describe it as similar to damage on the Elk River. (Opp. At 9) In addition, any information regarding sedimentation and pollution of the Elk River is relevant to plaintiffs' alleged injuries [*10] because their injuries relate to their water supply. (Id.)

National Union also defends the letter of Susan Kuehl, the claims supervisor for Old Republic on the Wrigley claim, expressing her opinion that all of Pacific Lumber's insurers from 1985 onward would be obligated to provide a defense based on the allegations of the Wrigley complaint. Kuehl concluded that plaintiffs al-leged a continuous loss. National Union finds this rele-vant to show that the Wrigley plaintiffs suffered damages prior to July 1, 1991. (Opp.At 11)

National Union contends that the details and circum-stances surrounding the Wrigley plaintiffs' alleged and actual damages are the same, therefore the allegations of


2005 U.S. Dist. LEXIS 1773, *

the complaint are responsive to General Star's interroga-tories, specifically Interrogatory 3 and 4. In particular, the amount of the settlement plus the value of the land purchased by Pacific Lumber could show the total amount of damages. National Union provided page and line citations to plaintiffs' deposition testimony in sup-port of its contentions regarding their damages. National Union says the allegations of the individual Wrigley plaintiffs are set forth in the four versions [*11] of the complaint in that case. (Opp. at 13-14)

In response to General Star's contention interrogato-ries:

Interrogatory 1: National Union refused to state which policy provisions it relies on to contend that Gen-eral Star had a defense obligation to Pacific Lumber. National Union responds only that discovery has not concluded and this litigation has not progressed fully, so it is unknown whether the General Star Umbrella Poli-cies have any obligation to defend or indemnify Pacific Lumber with regard to the Wrigley lawsuit. National Union naively disregards its own Third Party Complaint against General Star which alleges that General Star has an obligation to defend and indemnify Pacific Lumber under its Umbrella Policies.

This Court is mindful of its own prior decision deny-ing National Union depositions of Third-party insurers' claims handlers and adjusters regarding its "hypothetical claims" against the Third Party insurers, mentioning in dicta that National Union's liability to Pacific Lumber had not yet been determined. However, the major ration-ale for the court's decision was that the proposed depo-nents had no personal knowledge of the subject matter on which they were [*12] to be deposed. Balancing the lack of knowledge against the burden of the depositions led the court to grant the protective order.

In these interrogatories, General Star is very rea-sonably asking National Union to lay its cards on the table -- it should by now know what evidence supports its claims. National Union knows how much Pacific Lumber is demanding for defense, and the language of each of the Pacific Lumber policies, along with tens of thousands of pages of documents detailing the damage and when it occurred. The Court orders National Union to answer Interrogatory 1 with specific citations to policy provisions.

Interrogatory 2: National Union refuses to state which policy provisions give rise to a duty to indemnify Pacific Lumber. It objects that this query is "premature." Discovery closed on December 15. National Union sued General Star on the basis that it owed an indemnity obli-gation to Pacific Lumber under its umbrella policies. Now is the time for National Union to answer Interroga-tory 2.

Interrogatory 3: National Union responds volumi-nously to General Star's question: "describe in detail any and all physical injury to tangible property that you con-tend [any [*13] Wrigley plaintiff] allegedly sustained before July 1, 1991."

However, its voluminous response is virtually non-responsive. For example: In fifteen pages, National Un-ion gives five categories of nonresponsive data:

(1) allegations that Pacific Lumber performed cer-tain acts before 1991;

(2) allegations of changes of river morphology in the Elk River, which was not property owned by any Wrig-ley plaintiff;

(3) references to alleged damages to property of Wrigley plaintiffs after 1991;

(4) references to alleged damages to property of Wrigley plaintiffs without regard to dates; and

(5) references to completely irrelevant information such as damage to other watersheds not even involved in the Wrigley litigation (the Freshwater Creek watershed).

National Union's supplemental response to this inter-rogatory merely adds silt to the flood, specifically the deposition testimony of Dr. Ranjit Gill, describing in-creased sedimentation of the Elk River since 1987, which might be interpreted as verifying harm to riparian rights of Wrigley plaintiffs. However, riparian rights are non-tangible property, which is not covered under the um-brella or any other policies. [*14] Kazi v. State Farm Fire & Casualty Co., 24 Cal. 4th 871, 879, 103 Cal. Rptr. 2d 1, 15 P.3d 223 (2001).

The supplemental response also includes a letter from Jan Kraepelien referring to Pacific Lumber's cutting practices since 1987, without connecting those practices to any specific property damage. A script from a video by Humboldt Watershed Counsel refers to logging prac-tices, again without connecting them to any property damage. A statement by the Wrigley plaintiffs states that their initial lawsuit sought compensation for impairment of beneficial uses of the Elk River. These uses constitute intangible property not covered by the umbrella policies. See Kazi, 24 Cal. 4th 879.

National Union's answers are nonresponsive. The Court orders National Union to answer Interrogatory 3 with reference to specific damage to tangible property.

Interrogatory 4: asks National Union to "describe in detail any and all physical injury to tangible property you contend [the Wrigley plaintiffs] actually sustained before July 1, 1991. National Union objects with boiler-plate about burden oppression etc., and then responds, "See response to Interrogatory No. 3."


2005 U.S. Dist. LEXIS 1773, *

Responding to an [*15] interrogatory with a refer-ence to another interrogatory or to a document or plead-ing is improper. "It is well established that an answer to an interrogatory must be responsive to the question. It should be complete in itself and should not refer to the pleadings, or to depositions or other documents, or to other interrogatories, at least where such references make it impossible to determine whether an adequate answer has been given without an elaborate comparison of an-swers.'" Smith v. Logansport Community School Corp., 139 F.R.D. 637, 650 (N.D.Ind. 1991)(citing 4A J. Moore, J. Lucas, Moore's Federal Practice § 33.25[1](2d ed. 1991)); See also United States v. Dist. Council of New York City and Vicinity of United Broth. of Carpenters and Joiners of America, 1992 WL 188379 (S.D.N.Y. 1992) ("Where the interrogating party makes a request for an answer to certain questions, a [party] responds inappropriately by merely designating documents be-cause the interrogatory did not call for business re-cords.");Continental Illinois Nat. Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 686 (D.Kan.1991) ("Incorporation by reference to a [*16] deposition is not a responsive answer.").

National Union defends itself by saying it references pages and lines within depositions. This would be miti-gating if its references were responsive. Most of the time, they are not.

General Star asked separate interrogatories for a rea-son -- the difference between alleged damages and actual damages is pivotal in insurance coverage disputes. The duty to indemnify rests entirely on what damages were proved to have been sustained by the insured. The duty to defend, however, is triggered by mere allegations of covered damages. This distinction is essential to narrow-ing the coverage issues in this lawsuit.

National Union's response is evasive and incomplete. The Court orders National Union to answer Interrogatory 4 specifically with respect to physical injury it contends any of the Wrigley plaintiffs actually sustained.

Interrogatory 5 asks National Union to describe "with particularity" all documents evidencing "physical injury to tangible property" allegedly or actually sus-tained by the Wrigley plaintiffs before July 1, 1991.

National Union lists a "mountain" of documents and concludes its response with the catch-all [*17] provision of "all documents produced by parties in this action, in-cluding all Rule 26 disclosures and production of docu-ments through requested discovery. All documents pro-duced pursuant to subpoena in this action." After two meet and confer letters, National Union states in its Oc-tober 18, 2004 letter that" in the spirit of compromise," it agrees to rely on all of the documents listed in its original

response, but reserves the right to rely on other docu-ments.

National Union defends its reference to numerous documents in response to Interrogatory 5, as well as In-terrogatory 8 and Interrogatory 11. It claims it made "diligent efforts to cull" from the 70,000 pages of docu-ments identified to date (Opp. At 16-17) (Nelson Decl. Ex. B, 18:8-19:12; Ex. G, 7:12-8:13) Specifically, Na-tional Union says" the documents identified in response to Interrogatory 5, in particular, are equally responsive to Interrogatory 11 because they all relate to the cause of the Wrigley plaintiffs' alleged and/or actual property damage (including loss of use of tangible property or bodily injuries) because they all implicate Pacific Lum-bers logging and harvesting activities and related (1) flooding of [*18] the Wrigley plaintiffs' property; (2) hyper-sedimentation of the Elk River, which serves as the plaintiffs' water supply; and (3) damages incidental to the flooding and sedimentation exposure listed above." (Opp. at 18)

National Union's response is meaningless. Catch-all provisions are not sufficiently specific to be responsive, even when combined with more specific references to evidence. Struthers Scientific & Intern. Corp. V. General Foods Corp., 51 F.R.D. 149, 153 (D.Del. 1970). National Union posits a boundary-free discovery zone, including documents that refer to harm to the Elk River, which no Wrigley plaintiff owns, damages to other rivers not even involved in the Wrigley lawsuit, damages to Wrigley plaintiffs after 1991, and Pacific Lumber's actions with-out reference to dates.

The Court orders National Union to answer Inter-rogatory 5 by identifying only those documents which contain evidence of "physical injury to tangible property" allegedly or actually sustained by the Wrigley plaintiffs before July 1, 1991.

Interrogatory 6 asks National Union to "describe in detail any and all bodily injury that [National Union] contends [*19] [the Wrigley plaintiffs] allegedly sus-tained before July 1, 1991."

National Union objected with boilerplate about bur-den oppression etc., but then responded that "Each plain-tiff alleged injuries based on exposure to drinking pol-luted and oversilted water, using heavily silted water, exposure to smoke (from Pacific Lumber's burning de-bris), anxiety, sleep loss, emotional distress, headaches, and stomach aches. See response to Interrogatory No. 3."

General Star asks the Court to order National Union to explain why the use of silted water constitutes "sick-ness or disease," and to include the dates these "bodily injuries" took place, as well as which Wrigley plaintiff sustained which bodily injury. National Union defends


2005 U.S. Dist. LEXIS 1773, *

its sparse response with the assertion that General Star's asking it to assign bodily injuries to each of the 21 Wrig-ley plaintiffs exceeds the interrogatory limit and that whether the use of silted water is a bodily injury is a le-gal contention which calls for a legal interpretation, out-side the bounds of this discovery motion. General Star rejoins that an interrogatory directed at eliciting details concerning a common theme should be considered a [*20] single question. Wright & Miller, 8A Fed. Prac. & Proc. Civ.2d § 2168.1 at 261. General Star is aware of no bodily injuries sustained by Wrigley plaintiffs prior to July 1, 1991 and challenges National Union to provide evidence otherwise. The inquiry does not exceed the interrogatory limit and National Union shall respond according to its own contentions.

The Court orders National Union to answer Inter-rogatory 6 by specifying which Wrigley plaintiff suffered which bodily injury and the date of the injury.

Interrogatory 7 "As to each plaintiff in the Wrigley action, describe in detail any and all bodily injury that you contend he or she actually sustained before July 1, 1991.

National Union objected with boilerplate and then responded that this interrogatory regarding all 21 Wrigley plaintiffs exceeds the limit of 25 interrogatories. Then it referred to its response to Interrogatory 6.

General Star seeks an answer because a bodily in-jury actually sustained by a Wrigley plaintiff could po-tentially trigger a duty to indemnify, as distinguished from an allegation of bodily injury which could trigger a duty to defend. National Union's referral [*21] to its response to Interrogatory 6 is improper and its refusal to answer is evasive and the Court orders National Union to respond to Interrogatory 7 as to each injury it contends any Wrigley plaintiffs actually sustained.

Interrogatory 8 "Describe with particularity all documents evidencing bodily injury allegedly or actually sustained by any and all plaintiffs to the Wrigley action before July 1, 1991. If any document consists of more than one page, explain in detail what portion or portions of the document evidence bodily injury sustained by the plaintiffs to the Wrigley action before July 1, 1991.

National Union objects as it does to Interrogatories 6 and 7 and then refers General Star to its response to In-terrogatory 5.

Interrogatory 8 seeks documents with evidence of bodily injury. Interrogatory 5 asks about documents with evidence of damage to tangible property. National Un-ion's response to Interrogatory 5 refers to a "mountain" of non-responsive information including acts by Pacific Lumber, effects on the Elk River and generalizations. Once again, National Union is evading answering the

question. The Court orders National Union to provide a [*22] direct responsive narrative answer to Interrogatory 8, specifying only documents it relies on for evidence of bodily injury allegedly or actually sustained by any Wrigley plaintiffs.

Interrogatory 9 "As to each plaintiff in the Wrigley action, describe in detail any and all loss of use of tangi-ble property that you contend he or she allegedly sus-tained before July 1, 1991."

National Union responded as it did to Interrogatories 5-8 -- with boilerplate objections and that the request exceeds the 25 interrogatory limit under the Civil Local Rules. It then describes The Wrigley plaintiffs' loss of riparian rights, inability to draw water from the river for cooking, drinking and washing, lost use of barns, auto-mobiles, fields, livestock, pasture land, water filters, bridges and their own homes based on flooding and silta-tion of the North Fork of the Elk River. It then refers General Star to its response to Interrogatory 3.

The latter response is procedurally improper, since it refers to another interrogatory. The objection is not well-taken, since the interrogatory is not compound because it asks the same question regarding a common group of people See Wright [*23] & Miller, 8A Fed. Prac. & Proc. Civ.2d § 2168.1 at 261.

National Union also ignores the temporal aspect of the interrogatory, responding vaguely about loss of use without reference to dates, the most significant aspect of the question. General Star's coverage ended on July 1, 1991. General Star contends the only covered damage would be that which occurred while its policy was in force. Some of the damage listed by National Union did not occur until 1994. National Union may have a theory that the earlier acts of Pacific Lumber started a continu-ous sequence of damages, during the pendency of Gen-eral Star's policy. Nevertheless, General Star is entitled to a straight answer. The Court orders National Union to answer Interrogatory 9, listing specific plaintiffs, their damages and the dates.

Interrogatory 10 "As to each plaintiff in the Wrig-ley action, describe in detail any and all loss of use of tangible property that you contend he or she actually sustained before July 1, 1991."

National Union objected with boilerplate, and that the interrogatory exceeded the 25-interrogatory limit set by the Civil Local Rules. Then National Union re-sponded "See Interrogatory Nos. 3, 9." [*24]

Referring to another interrogatory is procedurally improper, and ignores the significant difference between the interrogatories. Again, National Union is ignoring the distinction between allegedly sustained loss of use and actually sustained loss of use by the Wrigley plaintiffs.


2005 U.S. Dist. LEXIS 1773, *

This distinction is crucial in insurance coverage litiga-tion, as actual damages may affect the duty to indemnify, while alleged damages may affect the duty to defend. National Union's reference to its response to Interroga-tory 9 frustrates General Star's attempt to narrow the issues in this case. The Court orders National Union to answer Interrogatory 10 with a narrative response speci-fying specific damage for each plaintiff for specific dates.

Interrogatory 11 "Describe with particularity all documents evidencing loss of use of tangible property allegedly or actually sustained by any and all plaintiffs to the Wrigley action before July 1, 1991. If any document consists of more than one page, explain in detail what portion or portions of the document evidences loss of use of tangible property sustained by plaintiffs to the Wrigley action before July 1, 1991."

National Union objects [*25] with boilerplate, and that the interrogatory exceeds the 25 interrogatory limit, then responds: "See Response to Interrogatory Nos. 3, 5."

National Union's response referring to other inter-rogatories is improper, since it merely incorporates those responses by reference. National Union's Responses to Interrogatory Nos. 3 and 5 merely refer to every docu-

ment and every injury alleged by any Wrigley plaintiffs (and some plaintiffs from other, unrelated litigation). This response defeats the purpose of a contention inter-rogatory to narrow the issues for settlement or trial and put a party on notice of its opponent's contentions and the evidence on which it relies. The Court orders Na-tional Union to answer Interrogatory 11 with specific reference to particular Wrigley plaintiffs, specific dam-ages and specific dates.

Conclusion

National Union asserts that "General Star cannot make threats of seeking sanctions for bad faith actions by National Union because it has set forth too many facts and documents." Sanctionable or not, National Union's attempt to muddy the waters by producing a mountain of non-responsive information creates a logjam in the course of this litigation. [*26] It is time to clear away the debris.

IT IS SO ORDERED.

DATED: January 5, 2005

JAMES LARSON

United States Magistrate Judge


Tab 3



Cited As of: Dec 12, 2006

ALEXANDER WOODS, Plaintiff, vs. KRAFT FOODS, INC., Defendant.

CASE NO. CV F 05-1587 LJO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 21, 2006, Decided September 22, 2006, Filed

PRIOR HISTORY: [*1] (Docs. 12, 17, 18, 21.)

COUNSEL: For Alexander Woods, Plaintiff: EDWARD BAXTER CHATOIAN, Law Offices of Edward B Cha-toian, Fresno, CA.

For Kraft Foods Global, Inc., Defendant: Shelline K Bennett, Liebert Cassidy Whitmore, Fresno, CA.

JUDGES: Lawrence J. O'Neill, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: Lawrence J. O'Neill

OPINION:

ORDER ON DEFENDANT'S MOTIONS TO COMPEL

INTRODUCTION

In this race discrimination and wrongful termination action, defendant Kraft Foods Global, Inc. ("Kraft") seeks to compel plaintiff Alexander Woods' ("Mr. Woods'") further responses to six interrogatories and 62 document requests and production of responsive docu-ments. This Court considered Kraft's motions to compel on the record and without oral argument or the Septem-ber 29, 2006 hearing, which is vacated. See Local Rule 37-251(c), (d) and 78-230(h). This Court issues the be-low orders to address Mr. Woods' disputed discovery responses.

BACKGROUND

Kraft's Interrogatories And Document Requests

On September 19, 2005, Mr. Woods filed in Fresno County Superior Court against Kraft his complaint to allege federal and state race discrimination and wrongful termination causes of action [*2] in connection with his termination of employment with Kraft. Kraft removed the action to this Court.

On April 14, 2006, Kraft personally served Mr. Woods' counsel Ed Chatoian ("Mr. Chatoian") with six interrogatories to address Mr. Wood's mitigation efforts, medical treatment since his termination, prior claims and lawsuits, and supporting facts and witnesses. On April 14, 2006, Kraft also personally served 76 document re-quests, most of which seek documents to support Mr. Woods' specific allegations. Prior to the May 15, 2006 deadline to respond to the interrogatories and document requests, Mr. Chatoian neither requested an extension to serve responses nor served responses.

On May 24, 2006, defense counsel Shelline Bennett ("Ms. Bennett") received by mail in one envelope Mr. Woods' responses to the interrogatories and document requests. The proofs of service of the responses to the document requests and interrogatories reflect May 16 and 19, 2006, respectively, service by mail. However, the postage stamp/meter on the envelope indicates a May 23, 2006 mailing date. The proofs of service, signed by Mr. Chatoian's paralegal Lisa J. Profera ("Ms. Profera"), state: "I am aware that on [*3] motion of the party served, service is presumed invalid if postal cancellation date of postage meter date is more than one day after date of deposit for mailing in affidavit."


2006 U.S. Dist. LEXIS 73126, *

In her declaration, Ms. Profera states that: (1) she prepared the proofs of service on May 19, 2006; (2) the May 16, 2006 proof of service for the responses to documents requests is a typographical error; (3) she mailed the interrogatory and document request responses on May 19, 2006; and (4) she cannot explain the U.S. Postal Service's May 23, 2006 post mark on the envelope containing the responses.

Meet And Confer Efforts

Ms. Bennett's June 29, 2006 hand-delivered letter ("June 29 letter") to Mr. Chatoian outlined Kraft's con-tentions that Mr. Woods' objections to the interrogatories and document requests were waived and Mr. Wood's responses were incomplete and evasive. According to Ms. Bennett, Mr. Chatoian ignored her request to re-spond, no later than July 10, 2006, to her June 29 letter. In his declaration, Mr. Chatoian claims that a mediation and depositions prevented him to respond to the June 29 letter.

Ms. Bennett's July 11, 2006 letter ("July 11 letter") to Mr. Chatoian, sent by fax and [*4] U.S. mail, noted the absence of a response to her July 26 letter and re-quested Mr. Chatoian, no later than July 13, 2006, to address the disputed discovery responses. According to Ms. Bennett, Mr. Chatoian ignored her July 11 letter. In his declaration, Mr. Chatoian claims that a deposition prevented him to respond to the July 11 letter.

At Mr. Woods' July 20, 2006 deposition, Ms. Ben-nett noted on the record the disputed discovery responses and Mr. Chatoian's failure to respond to Ms. Bennett's meet and confer attempts. Mr. Chatoian did not attend Mr. Woods' deposition at which Susan Purvis specially appeared for Mr. Woods. According to Ms. Bennett, Mr. Chatoian has not responded to her comments on the deposition record regarding the disputed discovery re-sponses. Mr. Chatoian claims that on August 24, 2006, his office mailed Ms. Bennett Mr. Woods' resume and information on the location of Mr. Woods' medical re-cords.

On September 8 and 11, 2006, Kraft filed its motion to compel papers. Ms. Bennett claims that Mr. Chatoian failed to cooperate to submit a joint discovery dispute statement, pursuant to Local Rule 37-251(c) and that she submitted Kraft's portion of the statement without [*5] Mr. Chatoian's input. On September 15, 2006, Mr. Cha-toian filed opposition papers and claims that Ms. Bennett failed to attempt to obtain his input in a joint discovery dispute statement.

Discovery deadlines expire in November and De-cember 2006. An April 30, 2007 trial is set.

WAIVER OF OBJECTIONS

Prior to answering Kraft's interrogatories, Mr. Woods raised objections (as applicable) that Kraft's inter-rogatories: (1) are vague, overbroad, burdensome and oppressive; (2) violate Mr. Woods' privacy rights; (3) seek irrelevant information; (4) seek information from a collateral source; (5) seek information subject to the phy-sician-patient privilege; (6) seek information equally available to Kraft; (7) seek information subject to the attorney work product doctrine and attorney-client privi-lege; and (8) seek information subject to expert disclo-sure. Prior to answering Kraft's document requests, Mr. Woods raised objections (as applicable) that the discov-ery requests: (1) seek documents prepared in anticipation of litigation or subject to privilege; (2) seek documents in Kraft's possession; and (3) are duplicative. Mr. Woods raised further objections noted below.

Kraft contends [*6] that Mr. Woods waived his ob-jections to the interrogatories and document requests with Mr. Woods' failure to seek an extension or to serve responses prior to the May 15, 2006 deadline for re-sponses. "Any ground not stated in a timely objection [to an interrogatory] is waived unless the party's failure to object is excused by the court for good cause shown." F.R.Civ.P. 33(b)(4). "It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection." Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). The failure to respond to interrogatories or document requests "may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for protective order." F.R.Civ.P. 37(d).

Mr. Woods, through Mr. Chatoian, claims that Ms. Profera incorrectly assumed Kraft's discovery requests had been served by mail and applied a five-day state court extension to respond for [*7] mail service. As a result, Mr. Woods contends that "failure to serve a timely response was the result of mistake" and "a harmless cal-endaring error" by which Kraft was not prejudiced. Mr. Woods did not seek an extension based on the presump-tion that responses were timely. Mr. Woods claims that he answered Kraft's "discovery requests and provided information available to him, except where the requests clearly were irrelevant or called for privileged informa-tion."

Despite the calendaring error, harmless or not, Mr. Woods waived objections with failure to seek an exten-sion or to serve responses prior to the May 15, 2006 deadline. Mr. Woods, through Mr. Chatoian, at best paid lip service to Kraft's meet and confer attempts and con-firms the untimely responses served by mail no sooner than May 19, 2006. Mr. Chatoian dubiously claims that Ms. Bennett precluded his input in a joint discovery


2006 U.S. Dist. LEXIS 73126, *

statement in that Mr. Chatoian effectively ignored Ms. Bennett and left her no option but to seek this Court's intervention, with or without Mr. Chatoian's participation in a joint discovery dispute statement. This Court need not consider the merits of Mr. Woods' waived objections, and even considering [*8] the objections, many of Mr. Woods' responses are incomplete and evasive to merit Mr. Woods and Mr. Chatoian's assurances that they have provided complete responses and document production.

SCOPE OF DISCOVERY

The purpose of discovery is to make trial "less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practi-cable extent possible," United States v. Procter & Gam-ble, 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L. Ed. 2d 1077 (1958), and to narrow and clarify the issues in dis-pute, Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L. Ed. 451 (1947).

F.R.Civ.P. 26(b) establishes the scope of discovery and states in pertinent part:

Parties may obtain discovery regard-ing any matter, not privileged, that is rele-vant to the claim or defense of any party, including the existence, description, na-ture, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discov-erable matter. For good cause, the court may order discovery of any matter rele-vant to the subject matter involved in [*9] the action. Relevant information need not be admissible at trial if the discovery ap-pears reasonably calculated to lead to the discovery of admissible evidence.

"The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its ob-jections." Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998); Nestle Foods Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 104 (D.N.J. 1990).

INTERROGATORY STANDARDS

Interrogatory functions include obtaining evidence, information which may lead to evidence and admissions, and to narrow issues to be tried. United States v. West Virginia Pulp and Paper Co., 36 F.R.D. 250, 252 (S.D.N.Y. 1964) (citing United States v. Watchmakers of Switzerland Information Center, Inc., 1959 U.S. Dist. LEXIS 3943, 2 F.R.Serv.2d 33.353, Case 3 (S.D.N.Y. 1959)). The party answering interrogatories must furnish "such information as is available to the party." F.R.Civ.P.

33(a). F.R.Civ.P. 33(b)(1) requires an interrogatory to be answered [*10] "separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall an-swer to the extent the interrogatory is not objectionable." An "evasive or incomplete... answer, or response is to be treated as a failure to... answer, or respond." F.R.Civ.P. 37(a)(3).

"Parties must provide true, explicit, responsive, complete, and candid answers to interrogatories." Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996). If a responding party is unable to supply requested in-formation, "the party may not simply refuse to answer, but must state under oath that he is unable to provide the information and 'set forth the efforts he used to obtain the information.''' Hansel, 169 F.R.D. at 305 (quoting Milner v. National School of Health Tech., 73 F.R.D. 628, 632 (E.D. Pa. 1977)).

F.R.Civ.P. 33 "is to be given a broad and liberal in-terpretation in the interest of according to the parties the fullest knowledge of the facts and of clarifying and nar-rowing the issues... That function [*11] is certainly not performed by a mere restatement of the general terms of the allegations of the complaint." West Virginia Pulp, 36 F.R.D. at 252.

"The general rule is that answers to interrogatories should be complete in and of themselves, and should not refer to pleadings, depositions, or other documents." Dipietro v. Jefferson Bank, 144 F.R.D. 279, 282 (E.D. Pa. 1992). "Answers to interrogatories should be in such form that they may be used upon a trial, as Rule 33 con-templates." International Mining Co., Inc. v. Allen & Co., Inc., 567 F.Supp. 777, 787 (S.D.N.Y. 1983).

A responding party may be required to state its con-tentions relating to "fact or the application of law to fact." F.R.Civ.P. 33(c). Courts "generally approve of appropriately timed contention interrogatories as they tend to narrow issues, avoid wasteful preparation, and, it is hoped, expedite a resolution of the litigation." Roberts v. Heim, 130 F.R.D. 424, 427 (N.D. Cal. 1989). There is no "hard and fast rule as to the exact amount of detail a party has to supply in response to a contention interroga-tory. [*12] The answer to this question can only be de-termined on a case-by-case basis by attempting to find a reasonable solution as specific problems arise." Roberts, 130 F.R.D. at 427. "[E]ach interrogatory has to be judged in terms of its scope and in terms of the overall context of the case at the time it is asked." Roberts, 130 F.R.D. at 427.

"All grounds for an objection to an interrogatory shall be stated with specificity. Any grounds not stated in a timely objection is waived..." F.R.Civ.P. 33(b)(4). The propounding party may seek an order to compel further


2006 U.S. Dist. LEXIS 73126, *

responses regarding "an objection to or other failure to answer an interrogatory." F.R.Civ.P. 33(b)(5); see F.R.Civ.P. 37(a)(2)(B).

With these standards in mind, the Court turns to Kraft's disputed interrogatories.

KRAFT'S DISPUTED INTERROGATORIES

Kraft's Interrogatory No. 1 seeks Mr. Woods' ef-forts to obtain employment since April 1, 2004 and in-formation as to potential employers contacted and their responses. Mr. Woods' response identified five potential employers [*13] and noted "several on-line applications and applications at the California Employment Devel-opment Department" and that plaintiff had received re-sponses from two employers. Kraft contends that the response is incomplete and responsive as to evasive as to responses which plaintiff received.

Kraft appears to seek a description of the responses from the two employers. Such a response appears in line with the interrogatory.

Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to serve a further response to describe the responses from the Fresno Bee and H&R Block.

Kraft's Interrogatory No. 2 seeks the amount and source of Mr. Woods' earned income since April 1, 2004. Mr. Woods responded that he earned $ 4,900 from H&R Block and $ 87 from the Fresno Bee. Kraft contends that since Mr. Woods waived his objections, Mr. Woods should provide a further response with information with-held due to objections.

Kraft is entitled to information, if any, withheld in-formation due to objections.

Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to serve a further response to indicate if he withheld information due to objections, and if so, to [*14] state that information.

Kraft's Interrogatory No. 3 asks whether Mr. Woods treated with a health care provider for injury at-tributed to the "INCIDENT" and if so, to identify the health care providers and dates of treatment. Mr. Woods identified Concentra Medical Centers and stated he does not have the dates of treatment but that such information is in the Concentra Medical Centers records. Kraft con-tends that since Mr. Woods waived objections, Mr. Woods should provide a further response with informa-tion withheld due to objections.


Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to serve a further response to indicate if he withheld information due to objections, and if so, to state that information.

Kraft's Interrogatory No. 4 asks whether Mr. Woods has filed a personal injury action or claim in the past 10 years and to provide information to identify such actions or claims. Mr. Woods identified a workers' com-pensation action. Kraft contends that since Mr. Woods waived objections, Mr. Woods should provide a further response with information withheld due to [*15] objec-tions.

Kraft is entitled to information, if any, withheld due to objections.

Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to serve a further response to indicate if he withheld information due to objections, and if so, to state that information.

Kraft's Interrogatory No. 5 seeks "each and every fact on which you base your Complaint/this lawsuit." Mr. Woods responded that he was subjected to racially moti-vated jokes and that management retaliated against him for his complaints in that Mr. Woods was assigned a less desirable work shift, was written up for being late from lunch and personal computer use, received two short checks, and was denied an accommodation for his work-ers' compensation injury resulting in a 22.2 percent dis-ability.

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide a further response with information withheld due to objections.


Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to serve a further response to indicate if he withheld information due to objections, and if so, to state [*16] that information.

Kraft's Interrogatory No. 6 seeks the identity of witnesses of the facts identified in response to Interroga-tory No. 5. Mr. Woods identified 14 individuals and "all employees of Kraft."

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide a further response with information withheld due to objections. Kraft further contends that Mr. Woods failed to provide addresses and telephone numbers of identified individuals.


2006 U.S. Dist. LEXIS 73126, *

Kraft is entitled to nonexpert witnesses withheld due to objections and known addresses and telephone num-bers of identified witnesses.

Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to serve a further response to indicate if he withheld information due to objections, and if so, to state that information, and to provide the last known ad-dresses and telephone numbers of identified witnesses.

DOCUMENT REQUEST STANDARDS

F.R.Civ.P. 34(b) requires a written response to a re-quest for production to "state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected [*17] to, in which event the reasons for the objection shall be stated." A party is obliged to produce all speci-fied relevant and nonprivileged documents or other things which are in its "possession, custody or control" on the date specified in the request. F.R.Civ.P. 34(a); Norman Rockwell Int'l Corp. v. H. Wolfe Iron & Metal Co., 576 F.Supp. 511, 512 (W.D. Pa. 1983). The pro-pounding party may seek an order for further disclosure regarding "any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection requested." F.R.Civ.P. 34(b). With these stan-dards in mind, this Court turns to Kraft's disputed docu-ment requests. n1

n1 For brevity, this Court will address jointly several of Kraft's document requests which seek similar. information and/or to which Mr. Woods provided similar responses.

KRAFT'S DISPUTED DOCUMENT REQUESTS

Kraft's Document Requests Nos. [*18] 1-12, 32, 39, 40, 42, 44, 47-49, 53 and 54 seek documents "which relate to, refer to, substantiate, or refute" discrimination, wrongful termination, negligence, breach of contract, and exemplary damages claims and related allegations in Mr. Woods' complaint and his portion of the Joint Scheduling Conference Report. Kraft's Document Request No. 56 seeks documents "concerning the subject matter of this litigation." Mr. Woods generally responded to the docu-ment requests that:

Plaintiff has conducted a diligent search and reasonable inquiry in an at-tempt to locate responsive documents, but as of this date of this response, Plaintiff is not in possession, custody, or control of any further items which would be subject

to production under the terms of this re-quest. Discovery is continuing. Plaintiff reserves the right to supplement this pro-duction of documents upon receipt of ad-ditional information.

n2

In response to several of the document requests, plaintiff referred to attachments to his complaint,

Kraft's employee handbook, and an acknowledgment of receipt of Kraft's zero tolerance policy regarding workplace harassment.

n2 In his responses to Document Request Nos. 1-12, Mr. Woods noted further noted: "In-vestigation and discovery have just commenced."

[*19]

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide further responses with information and documents withheld due to objections.

Mr. Woods identified limited documents in response to several of the document requests and suggests that Kraft possesses such documents. Mr. Woods claims that he lacks further responsive documents, but attempts to reserve his right to supplement his document production. Mr. Woods' responses suggest a less than diligent, thor-ough review of and search for responsive documents. Mr. Woods appears to trivialize his duty F.R.Civ.P. 26(e)(2) duty to seasonally update his responses and document production. Kraft is entitled to assurances that Mr. Woods will produce further responsive documents or lacks further responsive documents.

Order

This Court:

1. ORDERS Mr. Woods and Mr. Cha-toian, no later than October 11, 2006, to serve Kraft their respective declarations to state:

a. Mr. Woods and Mr. Chatoian and/or Mr. Cha-toian's staff conducted a thorough, diligent and good faith search for all documents subject to Kraft's Document Request Nos. 1-12 and 32, 39, 40,


2006 U.S. Dist. LEXIS 73126, *

42, 44, [*20] 47-49, 53, 54 and 56;

b. The identity of the per-son(s) who conducted such search and the specific ef-forts made to search for and locate documents sub-ject to Kraft's Document Request Nos. 1-12 and 32, 39, 40, 42, 44, 47-49, 53, 54 and 56;

c. There are no further documents subject to Kraft's Document Request Nos. 1-12, 32, 39, 40, 42, 44, 47-49, 53, 54 and 56 other than or in addition to documents produced by Mr. Woods previously or documents produced con-temporaneously with the declarations of Mr. Woods and Mr. Chatoian; and

d. Mr. Woods and Mr. Chatoian have exercised their best efforts to locate and produce all documents subject to Kraft's Docu-ment Request Nos. 1-12 and 32, 39, 40, 42, 44, 47-49, 53, 54 and 56;

2. ORDERS Mr. Woods and Mr. Cha-toian, no later than October 11, 2006, to produce to Kraft any further or additional documents subject to Kraft's Document Request Nos. 1-12 and 32, 39, 40, 42, 44, 47-49, 53, 54 and 56; and

3. ADMONISHES Mr. Woods and Mr. Chatoian to honor their F.R.Civ.P. 26(e) obligations.

Kraft's Document Request Nos. 13-16 seek docu-ments "which relate to, refer to, substantiate, [*21] or refute" Mr. Woods' alleged damages (wage loss, general damages, and loss of earning capacity and employment benefits). Mr. Woods responded to Document Request Nos. 13-16:

Investigation and discovery have just commenced. Plaintiff is currently attempt-

ing to locate documents responsive to this request, but as of this date of this re-sponse, Plaintiff is not in possession, cus-tody, or control of any items which would be subject to production under the terms of this request. To the extent responsive documents are located, they will be pro-duced. Plaintiff reserves the right to sup-plement this production of documents upon receipt of additional information.


Mr. Woods claims that he attempts to locate respon-sive documents, lacks responsive documents, but will produce responsive documents if found. Mr. Woods fur-ther attempts to reserve his right to supplement' his document production. Mr. Woods' response suggests a less than diligent, thorough review of and search for re-sponsive documents. Mr. Woods appears to trivialize his [*22] duty F.R.Civ.P. 26(e)(2) duty to seasonally update his responses and document production. Kraft is entitled to assurance that Mr. Woods will produce further respon-sive documents or lacks responsive documents.

Order

This Court:


a. Mr. Woods and Mr. Chatoian and/or Mr. Cha-toian's staff conducted a thorough, diligent and good faith search for all documents subject to Kraft's Document Request Nos. 13-16;

b. The identity of the per-son(s) who conducted such search and specific efforts made to search for and lo-cate documents subject to Kraft's Document Request Nos. 13-16;

c. There are no further documents subject to


2006 U.S. Dist. LEXIS 73126, *

Kraft's Document Request Nos. 13-16 other than or in addition to documents pro-duced contemporaneously with the declarations of Mr. Woods and Mr. Cha-toian; and

d. Mr. Woods and Mr. Chatoian have exercised their best efforts to locate and produce all documents subject to Kraft's Docu-ment Request Nos. 13-16;

2. ORDERS Mr. Woods and Mr. Cha-toian, no later than October 11, 2006, to [*23] produce to Kraft all documents, if any, subject to Kraft's Document Request Nos. 13-16; and


Kraft's Document Request Nos. 22, 24-31, 35, 43, 45 and 52 seek documents which "relate to, refer to, sub-stantiate, or refute" specific allegations of Mr. Woods' complaint in this action and administrative complaint. Mr. Woods objected that the document requests are un-reasonably duplicative and provided no further response.


As discussed above, Mr. Woods waived objections with his failure timely to seek an extension or to provide responses. Kraft is entitled to assurance that Mr. Woods produced responsive documents or lacks responsive documents.

Order

This Court:


a. Mr. Woods and Mr. Chatoian and/or Mr. Cha-toian's staff conducted a thorough, diligent [*24]

and good faith search for all documents subject to Kraft's Document Request Nos. 22, 24-31, 35, 43, 45 and 52;

b. The identity of the per-son(s) who conducted such search and specific efforts made to search for and lo-cate documents subject to Kraft's Document Request Nos. 22, 24-31, 35, 43, 45 and 52;

c. There are no further documents subject to Kraft's Document Request Nos. 22, 24-31, 35, 43, 45 and 52 other than or in ad-dition to documents pro-duced by Mr. Woods pre-viously or documents pro-duced contemporaneously with the declarations of Mr. Woods and Mr. Cha-toian; and

d. Mr. Woods and Mr. Chatoian have exercised their best efforts to locate and produce all documents subject to Kraft's Docu-ment Request Nos. 22, 24-31, 35, 43, 45 and 52;

2. ORDERS Mr. Woods and Mr. Cha-toian, no later than October 11, 2006, to produce to Kraft any further or additional documents subject to Kraft's Document Request Nos. 22, 24-31, 35, 43, 45 and 52; and


Kraft's Document Request No. 33 seeks docu-ments which relate to, refer to, substantiate, [*25] or refute Mr. Woods' allegation that he "did not receive recognition for having created Naomi Knight's process-ing mistake." Mr. Woods objected that "he did not 'cre-ate' Naomi Knight's processing mistake. No documents will be produced."


2006 U.S. Dist. LEXIS 73126, *

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide a further response with information and documents withheld due to objections.

Kraft's document request appears to mistake Mr. Woods' allegation that he did not receive recognition for correcting, not creating, Naomi Knight's processing mis-take. As such, Kraft is not entitled to a further response.

Order

This Court DENIES Kraft's motion to compel as to Document Request No. 33.

Kraft's Document Request No. 50 seeks docu-ments which "relate to, refer to, substantiate, or in any way show attorneys' fees and costs [Mr. Woods has] in-curred and [is] claiming in this matter." Mr. Woods ob-jected that the document request seeks information sub-ject to an unidentified privilege and stated "[t]his is an improper discovery request and no documents will be produced."

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide a further response [*26] with information and documents withheld due to objections.

Mr. Woods seeks attorney fees which he may pursue if he prevails. The issue of attorney fees is not ripe. Mr. Chatoian may pursue this action on a contingency fee. Kraft fails to substantiate the need for requested attorney fees documents at this time. The document request ap-pears to vex Mr. Woods rather than seek documents nec-essary for Kraft's litigation preparation. Kraft later may be entitled to responsive documents if Mr. Woods pre-vails and is entitled to pursue attorney fees.

Order

This Court DENIES without prejudice Kraft's mo-tion to compel as to Document Request No. 50.

Kraft's Document Request No. 55 seeks witness statements which "relate to, refer to, substantiate or oth-erwise support or refute any of the allegations of your Complaint. (Such statements include any notes taken by you that record the account of any witness regarding the allegations of your Complaint regardless of whether a formal witness statement was prepared or signed by the witness.)" Mr. Woods objected that the document request seeks information subject to an unidentified privilege and documents prepared in anticipation of litigation. [*27] Mr. Woods responded:

Plaintiff is not in possession, custody, or control of any further items which would be subject to production under the terms of this request. Discovery is con-tinuing. Plaintiff reserves the right to sup-

plement this production of documents upon receipt of additional information.


As noted above, Mr. Woods waived objections to the document request. Mr. Woods claims to lack witness statements and his response suggests that he has not ob-tained witness statements. Kraft is entitled to assurance that Mr. Woods lacks responsive documents.

Order

This Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to produce to Kraft all documents subject to Kraft's Document Request No. 55, and if there are no such documents, this Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to serve Kraft their respective declarations to state there are no documents subject to Kraft's Document Re-quest No. 55.

Kraft's Document Request No. 57 seeks "[a]ll documents of [*28] any kind either received by or gen-erated by you with regard to your employment with De-fendant." Kraft's Document Request No. 58 seeks "[a]ll documents of any kind kept by you in connection with your employment with Defendant, the reasons of your alleged termination, or regarding any conversations with any persons made at any time in connection therewith." Mr. Woods objected that the document requests are, overbroad, unintelligible and duplicative and seek docu-ments in Kraft's possession, prepared in anticipation of litigation, and subject to privilege, including the attor-ney-client privilege and attorney work product protec-tion. Mr. Woods responded: "This is an improper discov-ery request and no documents will be produced."


The document requests are too overbroad and nebu-lous for this Court to craft an order to compel production of specific or identifiable documents. Kraft should pos-sess Mr. Woods' personnel file and related employment documents. Kraft is free to propound more precise document requests. Kraft fails to [*29] substantiate the need for the universe of documents potentially subject to the document requests.

Order

This Court DENIES Kraft's motion to compel as to Document Request Nos. 57 and 58.

Kraft's Document Request No. 59 seeks docu-ments regarding Mr. Woods' medical treatment resulting


2006 U.S. Dist. LEXIS 73126, *

from Kraft's alleged conduct. Mr. Woods objected that the requested documents can be obtained from another source more convenient, less burdensome or less expen-sive to Mr. Woods or are in Kraft's possession. Kraft's Document Request No. 61 seeks documents to show Mr. Woods' employment benefits since April 29, 2004. Mr. Woods objected that the document request seeks irrelevant documents and is overbroad and unduly bur-densome.

Mr. Woods responded to the document requests:

Plaintiff has conducted a diligent and reasonable inquiry in an attempt to locate responsive documents, but as of this date of this response, plaintiff is not in posses-sion, custody or control of any items which would be subject to production un-der the terms of this request. Discovery is continuing. Plaintiff reserves the right to supplement this production of documents upon receipt of additional information. [*30]


Mr. Woods claims that he attempted to locate re-sponsive documents, lacks responsive documents, but attempts to reserve his right to supplement his document production. Mr. Woods' response suggests that he has not attempted to obtain his medical records. Mr. Woods ap-pears to trivialize his duty F.R.Civ.P. 26(e)(2) duty to seasonally update his responses and document produc-tion. Kraft is entitled to assurance that Mr. Woods will produce responsive documents or lacks responsive documents.

Order

This Court:


a. Mr. Woods and Mr. Chatoian and/or Mr. Cha-toian's staff conducted a thorough, diligent and good faith search for all documents subject to Kraft's Document Request Nos. 59 and 61;

b. The identity of the per-son(s) who conducted such search and specific efforts to search for and locate documents subject to Kraft's Document Request [*31] Nos. 59 and 61;

c. There are no documents subject to Kraft's Docu-ment Request Nos. 59 and 61 other than or in addition to documents produced contemporaneously with the declarations of Mr. Woods and Mr. Chatoian; and

d. Mr. Woods and Mr. Chatoian have exercised their best efforts to locate and produce all documents subject to Kraft's Docu-ment Request Nos. 59 and 61; and

2. ORDERS Mr. Woods and Mr. Cha-toian, no later than October 11, 2006, to produce to Kraft all documents, if any, subject to Kraft's Document Request Nos. 59 and 61; and


Kraft's Document Request No. 60 seeks docu-ments to evidence Mr. Woods' earned income since April 29, 2004. Mr. Woods responded:

Plaintiff is attempting to locate re-sponsive information and will produce said information upon discovery. Plaintiff reserves the right to supplement this pro-duction of documents upon receipt of ad-ditional information.

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide a further response with information and documents withheld due to [*32] objec-tions.

Mr. Woods claims that he attempts to locate respon-sive documents and will produce them. Mr. Woods fur-ther attempts to reserve his right to supplement his


2006 U.S. Dist. LEXIS 73126, *

document production. Mr. Woods' response suggests a less than diligent, thorough review of and search for re-sponsive documents. Mr. Woods appears to trivialize his duty F.R.Civ.P. 26(e)(2) duty to seasonally update his responses and document production. Kraft is entitled to assurance that Mr. Woods will produce responsive documents or lacks responsive documents.

Order

This Court:


a. Mr. Woods and Mr. Chatoian and/or Mr. Cha-toian's staff conducted a thorough, diligent and good faith search for all documents subject to Kraft's Document Request No. 60;

b. The identity of the per-son(s) who conducted such search and specific efforts made to search for and lo-cate documents subject to Kraft's Document Request No. 60;

c. There are no further documents subject to Kraft's Document Request No. 60 other than or in ad-dition to documents [*33] served contemporaneously with the declarations of Mr. Woods and Mr. Cha-toian; and

d. Mr. Woods and Mr. Chatoian have exercised their best efforts to locate and produce all documents subject to Kraft's Docu-ment Request Nos. 60;

2. ORDERS Mr. Woods and Mr. Cha-toian, no later than October 11, 2006, to

produce to Kraft all documents, if any, subject to Kraft's Document Request Nos. 60; and


Kraft's Document Request No. 62 seeks docu-ments regarding Mr. Woods' efforts since April 29, 2004 to obtain employment, including resumes, applications, offers and rejections. Mr. Woods objected that the document request seeks irrelevant information and is overbroad and unduly burdensome. Mr. Woods re-sponded: "This is an improper discovery request and no documents will be produced."


The document request seeks documents regarding Mr. Woods' mitigation attempts to render such docu-ments relevant. [*34] As discussed above, Mr. Woods waived his objections with his failure timely to seek an extension or to serve responses. Kraft is entitled to documents to demonstrate Mr. Woods' mitigation efforts.

Order


Kraft's Document Request No. 63 seeks all docu-ments which Mr. Woods used during his Kraft employ-ment to attempt to obtain other employment. Mr. Woods objected that the document request seeks irrelevant in-formation and is overbroad and unduly burdensome. Mr. Woods responded: "This is an improper discovery re-quest and no documents will be produced."


Kraft fails to substantiate the need for documents which Mr. Woods used during [*35] his employment to attempt to obtain other employment. There is no indica-tion that such documents address Mr. Woods' mitigation efforts. The document request appears to vex Mr. Woods rather than seek documents necessary for Kraft's litiga-tion preparation.

Order


2006 U.S. Dist. LEXIS 73126, *


Kraft's Document Request No. 64 seeks docu-ments regarding Mr. Woods' earned income from sources other than Kraft during his employment with Kraft. Mr. Woods objected that the document request seeks irrele-vant information and is overbroad and unduly burden-some. Mr. Woods responded: "This is an improper dis-covery request and no documents will be produced."


As noted above, Mr. Woods waived objections to the document request with his failure timely to seek an extension or to serve responses. Since Mr. Woods ap-pears to claim loss of earning capacity, Kraft is entitled to documents regarding his earned income and ability to earn to income. If Mr. Woods lacks responsive docu-ments, Kraft [*36] is entitled to assurance of such.

Order

This Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to produce to Kraft all documents subject to Kraft's Document Request No. 64; and

1. If there are no such documents, to ORDER Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to serve Kraft their respective declarations to state there are no documents subject to Kraft's Document Request No. 64; or

2. If there are such documents but Mr. Woods and/or Mr. Chatoian do not pos-sess them, to ORDER Mr. Woods and Mr. Woods, no later than October 11, 2006, to serve Kraft their respective declarations to state to the best of their knowledge, who possesses documents subject to Kraft's Document Request No. 64 and the docu-ments' location.

Kraft's Document Request No. 65 seeks all of Mr. Woods' communications since the start of his employ-ment with Kraft to present "with any potential employer regarding your possible employment with them [sic]." Mr. Woods objected that the document request seeks irrelevant information and is overbroad and unduly bur-densome. Mr. Woods responded: "This is an improper discovery request and no documents will [*37] be pro-duced."


Kraft fails to substantiate the need for documents which Mr. Woods used during his employment to at-tempt to obtain other employment. Such documents do not address Mr. Woods' mitigation efforts. The document request appears to vex Mr. Woods rather than seek documents necessary for Kraft's litigation preparation. Documents subject to Kraft's Document Request No. 62 address Mr. Woods' mitigation efforts to render this document request superfluous.

Order


Kraft's Document Request No. 66 seeks Mr. Woods' communications with Kraft and related docu-ments since Mr. Woods applied for Kraft employment and concerning terms and conditions of employment with Kraft. Kraft's Document Request No. 67 seeks all documents received by Mr. Woods from Kraft during Mr. Woods' employment, including policies, procedures, handbooks, etc. Plaintiff objected that the document re-quests seek irrelevant information, documents prepared in anticipation [*38] of litigation, documents in Kraft's possession, and are duplicative, overbroad and burden-some. Mr. Woods responded: "No documents will be produced."


As noted above, Mr. Woods waived objections to the document requests with his failure timely to seek an extension or to serve responses. Kraft is entitled to com-munications with Mr. Woods and documents it provided to Mr. Woods in that they are relevant to Mr. Woods' claims and defense of them. If Mr. Woods lacks respon-sive documents, Kraft is entitled to assurance of such.

Order

This Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to produce to Kraft all documents subject to Kraft's Document Request Nos. 66 and 67, and if there are no such documents, this Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to serve Kraft their respective declara-tions to state there are no documents subject to Kraft's Document Request Nos. 66 and 67.

Kraft's Document Request No. 68 seeks all docu-ments "which relate to, refer to, or in [*39] any way substantiate any efforts on your part to mitigate dam-ages.", Mr. Woods objected that the document request is


2006 U.S. Dist. LEXIS 73126, *

duplicative and responded: "No documents will be pro-duced."


As discussed above, Mr. Woods waived his objec-tions with his failure timely to seek an extension or to serve responses. Although the document request seeks documents potentially subject to Document Request No. 62, Kraft is entitled to documents to demonstrate Mr. Woods' mitigation efforts.

Order


Kraft's Document Request No. 69 seeks all docu-ments "which relate to, refer to, substantiate or describe any medical condition you allegedly have suffered result-ing [*40] from working for and/or allegedly being ter-minated by Defendant, including any medical records that reflect such medical condition." Mr. Woods objected that the document request is unduly duplicative and re-sponded: "No documents will be produced."


As discussed above, Mr. Woods waived objections with his failure timely to seek an extension or to serve responses. Although the document request seeks docu-ments subject to Document Request No. 59, it seeks ad-ditional documents for a medical condition rising from employment, not merely from Kraft's alleged conduct. Kraft is entitled to documents to demonstrate an alleged medical condition arising from Mr. Woods' employment.

Order

This Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to produce to Kraft all documents subject to Kraft's Document Request No. 69; and

1. If there are no such documents, this Court ORDERS Mr. Woods and Mr. Cha-toian, no later than October 11, 2006, to serve Kraft their respective declarations to state there are no [*41] documents sub-

ject to Kraft's Document Request No. 69; or

2. If there are such documents but Mr. Woods and/or Mr. Chatoian do not pos-sess them, this Court ORDERS Mr. Woods and Mr. Woods, no later than Oc-tober 11, 2006, to serve, Kraft their re-spective declarations to state to the best of their knowledge, who possesses docu-ments subject to Kraft's Document Re-quest No. 69 and the documents' location.

Kraft's Document Request No. 70 seeks all docu-ments "which relate to, refer to, or in any way substanti-ate the amount of damages and reasons for these dam-ages that you claim to have incurred to date as a result of the conduct of Defendant." Mr. Woods objected that the document request is unreasonably duplicative and re-sponded: "No documents will be produced."


As discussed above, Mr. Woods waived objections with his failure timely to seek an extension or to serve responses. The document request seeks documents as to the amount of Mr. Woods' global damages claims and inherently crosses over into other document requests. [*42] Nonetheless, Kraft is entitled to documents to demonstrate the amount of Mr. Woods' alleged damages.

Order


Kraft's Document Request No. 71 seeks all docu-ments "that relate to, refer to, or in any way show any reports, letters of support or encouragement received by you or anyone acting on your behalf from any person concerning the subject matter of this litigation." Mr. Woods objected that the document request seeks irrele-vant information and information subject to unidentified privilege and is overbroad and unduly burdensome. Mr. Woods responded: "This is an improper discovery re-quest and no documents will be produced."

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide a further response with information and documents withheld due to objections. [*43]


2006 U.S. Dist. LEXIS 73126, *

The document request appears to seek documents to support Mr. Woods or his efforts in this litigation. The document request is too overbroad and nebulous for this Court to craft an order to compel production of specific or identifiable documents. Kraft fails to substantiate the need for the universe of documents potentially subject to this document request.

Order


Kraft's Document Request No. 72 seeks all docu-ments "which relate to, refer to, or substantiate or de-scribe all communications you had with Defendant (in-cluding employees, agents and representatives) regarding your work performance." Kraft's Document Request No. 74 seeks all documents "which relate to, refer to, or substantiate or describe any counseling or discipline re-garding your work performance, misconduct, and/or, violation of Defendant's policies that you received." Mr. Woods objected that Kraft possesses responsive docu-ments and that the document requests are duplicative.

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide further responses with information and documents withheld due to objections. [*44]

As discussed above, Mr. Woods waived objections with his failure timely to seek an extension or to serve responses. The document requests generally seek Mr. Woods' performance evaluations and reprimands and inherently crosses over into other document requests. Nonetheless, Kraft is entitled to responsive documents in that, they are relevant to Mr. Woods' claims and defense of them.

Order

This Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to produce to Kraft all documents subject to Kraft's Document Request Nos. 72 and 74, and if there are no such documents, this Court ORDERS Mr. Woods and Mr. Chatoian, no later than October 11, 2006, to serve Kraft their respective declara-tions to state there are no documents subject to Kraft's Document Request No. 72 and 74.

Kraft's Document Request No. 73 seeks all docu-ments "which relate to, refer to, or substantiate or de-scribe any and all communications you have had with Defendant (including employees, agents and representa-tives) concerning the subject matter of this litigation since your termination." Mr. Woods objected that the document request is unduly duplicative.

Kraft contends that since Mr. [*45] Woods waived objections, Mr. Woods should provide a further response

with information and documents withheld due to objec-tions.

As discussed above, Mr. Woods waived objections with his failure timely to seek an extension or to serve responses. The document request appears to target Mr. Woods' communications, not those of his counsel. Pre-sumably, Kraft or its counsel possesses communications with Mr. Woods and his counsel regarding this litigation. Nonetheless, with the waiver of objections, Kraft is enti-tled to Mr. Woods' communications. Mr. Woods need not produce communications of his counsel with Kraft or its counsel.

Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to produce to Kraft all of his communica-tions with Kraft, including its employees, agents and representatives, concerning the subject matter of this litigation since Mr. Woods' termination.

Kraft's Interrogatory No. 75 seeks all documents reflecting Mr. Woods' employment five years prior to his employment with Kraft. Mr. Woods objected that the document request seeks irrelevant information and is overbroad and unduly burdensome. Mr. Woods re-sponded: "This is an improper discovery [*46] request and no documents will be produced."


As noted above, Mr. Woods waived objections to the document request with his failure timely to seek an extension or to provide responses. Since Mr. Woods ap-pears to claim loss of earning capacity, Kraft is entitled to documents regarding his ability to earn to income, including his employment history. However, the docu-ment request seeks a broad range of documents difficult to identify and categorize. As such, Mr. Woods' resumes or similar documents demonstrating his employment five years prior to the start of his Kraft employment are suffi-cient. If Mr. Woods lacks responsive documents, Kraft is entitled to assurance of such.

Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to produce to Kraft Mr. Woods' resumes or similar documents demonstrating his employment five years prior to the start of his Kraft employment, and if there are no such documents, this Court ORDERS Mr. Woods, no later than October 11, 2006, to serve Kraft his declaration to state that [*47] he has no resumes or simi-lar documents demonstrating his employment five years prior to the start of his Kraft employment.


2006 U.S. Dist. LEXIS 73126, *

Kraft's Document Request No. 76 seeks all docu-ments named/described in Mr. Woods' F.R.Civ.P. 26(a)(1) disclosures. Mr. Woods objected that Kraft pos-sesses the requested documents and that the document request is duplicative. Mr. Woods responded that he had produced the requested documents, except his entire em-ployee/personnel file, which Kraft possesses in' entirety.

Kraft contends that since Mr. Woods waived objec-tions, Mr. Woods should provide a further response with information and documents withheld due to objections. Kraft further contends that Mr. Woods' response that Kraft possesses his personnel file is inefficient and eva-sive and that Kraft is entitled to whatever Mr. Woods possesses.

As noted above, Mr. Woods has waived objections with his failure timely to seek an extension or to serve responses. As to this document request, Kraft appears to focus on Mr. Woods' personnel file. Although Kraft pre-sumptively possesses Mr. Woods' personnel file, his waiver of objections entitles Kraft to the portions of the [*48] personnel file and related employment documents which Mr. Woods possesses.

Order

This Court ORDERS Mr. Woods, no later than Oc-tober 11, 2006, to produce to Kraft all of his personnel

file and related employment documents which Mr. Woods possesses.

MONETARY SANCTION

In their respective papers, Kraft and Mr. Woods make passing reference to an award of attorney fees to pursue and to oppose Kraft's motions to compel. Neither Kraft nor Mr. Woods substantiate an award of attorney fees, especially with their respective mixed success on the merits of the motions to compel. Nonetheless, if this Court were inclined to impose a monetary sanction, it would impose it on Mr. Woods and Mr. Chatoian based on Mr. Woods' untimely discovery responses and Mr. Chatoian's failure to meet and confer meaningfully to address Kraft's concerns.

Order

This Court DENIES an attorney fees award to Kraft and Mr. Woods.

IT IS SO ORDERED.

Dated: September 21, 2006

/s/ Lawrence J. O'Neill

UNITED STATES MAGISTRATE JUDGE


Bradley v. Val-Mejias No. 00-2395-GTV, No. C 02-4799 SBA...

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