Opinion
CIVIL ACTION NO: 01-1881 SECTION: "A" (4)
August 20, 2002
MINUTE ENTRY CLERK
On March 25, 2002, the plaintiff, Somerset Marine, Inc., filed a Motion to Compel (doc. #22) seeking an order compelling the defendant MBLX, Inc. ("MBLX") to respond to or supplement its responses to the plaintiff's interrogatories, Requests for Production of Documents and Requests for Admission. MBLX opposes the motion.
I. Factual Background
This suit arises as a result of damage to a cargo of steel coils that were transported onboard a vessel under charter to BBC Chartering, M/V BBC ANGLIA, from Huachipato, Chile to New Orleans, Louisiana. The cargo, which was damaged when it arrived in New Orleans, was owned by the plaintiff's assured, P.N. Enterprises. The plaintiff brought suit against the alleged owners and managers of the vessel, Briese Schiffahrts GmbH, and against the alleged owners, managers and/or charterers of the inland barges, MBLX and American Commercial Barge Line, LLC.
On January 24, 2002, the plaintiff propounded Interrogatories, Requests for Production of Documents and Requests for Admission upon MBLX. On February 25, 2002, MBLX provided its responses to the plaintiff's discovery requests, objecting to several of the plaintiff's Interrogatories and Request for Production of Documents as vague, overly broad and unduly burdensome. MBLX also claimed that several of the plaintiff's requests were premature and irrelevant.
The plaintiff filed the instant motion contending that MBLX's responses were inadequate in that MBLX had filed objections but no responses to some of the Interrogatories and insufficient responses to the Requests for Admission. The plaintiff contended further that MBLX had waived any objections to the interrogatories to which MBLX had failed to provide a response. The plaintiff contended that MBLX's allegations of prematurity and privilege were without merit and contended that its discovery requests were relevant to the litigation or reasonably calculated to lead to relevant evidence.
II. Procedural Background
The plaintiffs Motion to Compel was scheduled for hearing for April 10, 2002 before then United States Magistrate Judge Lance M. Africk. The plaintiff's motion sought to compel MBLX to respond to its Interrogatories and Requests for Production. MBLX initially opposed the motion on the ground that it needed an additional two weeks to respond.
A telephone conference was held before Judge Africk on April 5, 2002 to discuss the plaintiff's motion. After listening to the arguments of counsel, Judge Africk continued the hearing date to April 24, 2002. He also ordered the parties to meet on April 18, 2002 in order to resolve any disputes as to the plaintiffs discovery requests. Judge Africk further ordered the parties to brief any issues they were unable to resolve.
Rec. Doc. No. 32.
The parties met on April 18, 2002 in order to resolve the disputes as to the plaintiffs discovery requests. Thereafter, MBLX provided the plaintiff with its responses to the discovery requests. However, several requests remained in dispute. In compliance with Judge Africk's Order, the plaintiff and MBLX briefed the issues involving the requests that remained in dispute. In their supplemental memorandums, the parties indicate that the requests that remain in dispute are the plaintiff's Interrogatories numbers 6, 8, 10, 11, 13, 14, 15, 16 17, 18 and 19 and Request for Production numbers 23, 24, 25 and 26.
Rec. Doc. Nos. 43, 53.
The case was reallotted to the undersigned Magistrate Judge on April 22, 2002. A hearing on the motion was held with oral arguments before the undersigned on April 24, 2002. All parties were present.
Rec. Doc. No. 39.
During the hearing, the plaintiff indicated that its discovery requests sought to elicit information relating to MBLX's status as a common carrier during the past two years. The requests also sought to obtain information regarding the identity of persons or entities for whom MBLX has provided or refused to provide waterborne cargo services and an identification of the types of goods transported on the barges involved in this case. The requests further sought the production of any "media" wherein MBLX offered its services. This information, the plaintiff claimed, is critical to its case in chief.
MBLX opposed the motion contending that the information requested is not relevant because MBLX does not qualify as a common carrier. MBLX claimed that according to the factors set forth in Zima Corporation v. M.V. Roman Pazinski, 493 F. Supp. 268 (S.D.N.Y. 1980), it cannot be classified as a common carrier. Rather, MBLX claimed, it should be classified as a "third party logistics service provider." MBLX further claimed that the information requested by the plaintiff pertaining to its customers for the past two years is not probative as to whether or not they qualify as a common carrier.
After listening to the arguments of counsel, the Court deferred a ruling and indicated that it would need to conduct a further review of the applicable law. (Rec. Doc. # 47). Having reviewed the applicable law and the arguments of the parties, the Court will now render its decision.
III. Analysis
A. Interrogatory Nos. 6, 10 and 11
Interrogatory Nos. 6, 10 and 11 request information as to the claims or defenses MBLX plans to assert and seeks facts and witnesses who will support and testify as to MBLX's contentions. MBLX responds by stating that these requests are premature as it is in the process of investigating the claim and currently does not have sufficient information to make such a determination. MBLX also responds that it will identify its witnesses in accordance with the pretrial Scheduling Order and objects to the extent the requests seek privileged information.
The response provided by MBLX is incomplete and fails to satisfy the requirement of Rule 33 of the Federal Rules of Civil Procedure that each interrogatory be answered "separately and fully." Fed.R.Civ.P. 33 (b)(1). Such a response is a failure or refusal to answer the interrogatory. See Oleson v Kmart Corp., 175 F.R.D. 570, 572 (D.Kan. 1997) (holding that a party may not withhold response to discovery requests by suggesting that the information will be forthcoming at a later date). The interrogatories here seek discoverable facts and should be answered.
Further, because the plaintiff made the request on January 24, 2002, some eight months ago, MBLX should now have sufficient information to provide the plaintiff with the requested information. Thus, MBLX is ordered to respond to Interrogatory Nos. 6, 10 and 11 within 10 days of this order by providing the information requested and the persons having knowledge of these facts. However MBLX is not required to provide the name of its testifying witnesses at this time as the Scheduling Order expressly states that such witnesses must be identified no later than 60 days prior to the March 13, 2003 Pre-Trial Conference date.
Rec. Doc. No. 24.
B. Interrogatory Nos. 8
Interrogatory No. 8 requests information pertaining to the stevedoring firms which loaded the consignment onboard the subject barges. MBLX responded to these interrogatories by providing the names of the companies that loaded the consignment onboard the barges. for whose account these companies were employed, under whose instruction the companies operated and the company that paid the loading expenses. The Court finds that this response is sufficient.
C. Interrogatory No. 13
Interrogatory No. 13 requests information pertaining to the steps taken to prevent damage to the subject cargo. MBLX responds by stating that because it did not own the barges in question, this interrogatory should be directed to the defendant American Commercial Barge Line, the owner of the barges in question.
The response provided by MBLX is incomplete and fails to satisfy the requirement of Rule 33 of the Federal Rules of Civil Procedure that each interrogatory be answered "separately and fully." Fed.R.Civ.P. 33 (b)(1). The fact that a party does not have possession of the requested materials responsive to the request does not excuse its failure to fully respond to the request, because its duty to fully answer implies a duty to make reasonable efforts to obtain the information requested. See Newpon Limited, Etc. v Sears, Roebuck Co., 1988 WL 47860 (E.D.La. 1988). For the purposes of a motion to compel under Rule 37(a), "an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer or respond." Fed.R.Civ.P. 37(a)(3). Thus, MBLX has failed to adequately respond to Interrogatory No. 13.
MBLX is ordered to fully respond to Interrogatory No. 13 within 10 days of this order by stating the steps taken to prevent damage to the subject cargo, identifying persons with knowledge and producing any documents in support. If MBLX does not possess or cannot obtain the information necessary to fully respond to the request, its answer must include a detailed explanation of its efforts to obtain the information and the reasons its efforts were not successful.
D. Interrogatory No. 14
Interrogatory No. 14 requests information pertaining to the owners of the cargo on board the barges during the voyage in question and seeks any relevant documents. MBLX responded by providing the owners and type of cargo onboard the barges. The Court finds that this response is sufficient.
E. Interrogatory No. 15
Interrogatory No. 15 requests that MBLX explain any unqualified admissions made in response to the Requests for Admission. MBLX responded by providing explanations for its responses to the plaintiff's Requests for Admission. The Court finds that MBLX adequately responded to the plaintiffs Requests for Admission Nos. 7, 8, 12, 13, 14, 15, 16, 18, 19 and 25.
However, in Response to the plaintiffs Requests for Admission Nos. 1, 2, 3, 4, 5, 6, 9, 10, 11, 17, 20, 21, 22, 23 and 24, MBLX states that because it is not a party to the arrangements for ocean carriage, it cannot admit or deny these requests at this time. Rule 36 of the Federal Rules of Civil Procedure provides that a party responding to a Request for Admission may not give lack of information or knowledge as a reason for its failure to admit or deny unless the party states that it has made a reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. Fed.R.Civ.P. 36(a).
Thus, MBLX has failed to adequately respond to Interrogatory No. 15 and MBLX is ordered to fully respond to the plaintiffs Requests for Admission Nos. 1, 2, 3, 4, 5, 6, 9, 10, 11, 17, 20, 21, 22, 23 and 24 within 10 days of this order by admitting or denying the requests. If MBLX does not possess or cannot obtain the information necessary to fully respond to the requests, its answer must include a detailed explanation of its efforts to obtain the information and the reasons its efforts were not successful.
F. Interrogatory No. 16
Interrogatory No. 16 requests that MBLX identify and produce information pertaining to cargos transported on several barges in the twelve moths prior to the transportation of the subject cargo. MBLX responds by stating that it did not use the barges in question during the twelve months preceding the transportation of the subject cargo and is thus not in possession of such information. The Court finds that this response is sufficient.
G. Interrogatory Nos. 17-18 and Requests for Production Nos. 24-25
Interrogatories Nos. 17-18 and Requests for Production Nos. 24-25 seek information in support of the plaintiff's claim that MBLX is a common carrier. MBLX has objected to providing the requested information contending that because it is not a common carrier, the information requested is irrelevant, overly broad and burdensome.
The discovery rules are accorded a broad and liberal treatment in order to affect their purpose of adequately informing litigants in civil trials. Hebert v. Lando, 441 U.S. 153, 176 (1979). As a result, relevancy is broadly construed and a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter in the action or if there is any possibility that the information sought may lead to the discovery of admissible evidence. See Fed.R.Civ.P. 26(b)(1) Beach v. City of Olathe, 2000 WL 960808, *2 (D.Kan. 2000). Thus, a request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing on the subject matter of the action." Beach, 2000 WL at *2.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that the scope of discovery includes any matter, not privileged, that is relevant to the subject matter involved in the pending action. The range of relevant matters is broad and may be related to "the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Fed.R.Civ.P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id.; Butler v Rigsby, 1998 WL 164857, *2 (E.D.La. 1998).
When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Id.
In the instant case, MBLX has failed to meet this burden. In its complaint, the plaintiff alleges that MBLX is engaged in the common carriage of cargo and alleges that MBLX breached its duties as a common carrier by delivering damaged cargo. MBLX, in its Answer, has denied these allegations. The plaintiff is certainly entitled to the discovery of information that will allow it to determine whether MDLX is in fact a common carrier. MBLX is not entitled to deny the plaintiff's claim that it is liable as a common carrier and then refuse to provide any information that would support its assertion.
Plaintiff's Supplemental and Amended Complaint. Rec. Doc. No. 21.
Rec. Doc. No. 57.
Further, the only issue presently before the Court is whether the information requested by the plaintiff is relevant to anything which is or may become an issue in the litigation. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Interrogatories Nos. 17 and 18 and Requests for Production No. 24 and 25 are relevant to determining whether MDLX qualifies as a common carrier and certainly qualifies as evidence that reasonably could lead to other matter that could bear on any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Further, as the plaintiff has agreed to limit his requests to the number of MDLX customers and terminals served during the two years preceding the subject voyage, these requests are not overly broad, burdensome or vague and can be answered in their present form. Therefore, MDLX is ordered to respond to Interrogatories Nos. 17 and 18 and Requests for Production Nos. 24 and 25 within 10 days of this order. MBLX's responses shall be limited to providing the plaintiff with the number of MBLX customers and a list of terminals served during the two years preceding the subject voyage.
These requests initially sought information and documents pertaining to the persons or entities MBLX provided waterborne cargo service to during the two years preceding the subject voyage. However, during the April 24, 2002 hearing, the plaintiff agreed to reduce the scope of the information requested to the number of MBLX customers and a list of terminals served during the two years preceding the subject voyage.
H. Interrogatory No. 19
Interrogatory No. 19 seeks media that identified the services of MBLX. MDLX responded by providing the name of a publication that advertised its services and the name of a brochure through which it advertises. The Court finds that this response is sufficient.
I. Request [or Production Nos. 23 and 26
Requests for Production Nos. 23 and 26 seek documents pertaining to the cargos transported on the subject barges and copies of media where MBLX's services were identified. MDLX responded by referencing several attached exhibits. However, neither party has provided the Court with the attached exhibits. Without this information, the Court cannot conclude that MBLX's responses are not sufficient.
Accordingly,
IT IS THEREFORE ORDERED that the Motion to Compel (Doc. # 22) is GRANTED IN PART and DENIED IN PART as follows:
1) The plaintiff's request to compel responses to Interrogatory Nos. 6, 10, 11, 13, 15, 17, 18 and Requests for Production Nos. 24 and 25 is GRANTED and MBLX is to provide the plaintiff with more complete responses to these discovery requests within 10 days of this order.
2) The plaintiff's request to compel responses to Interrogatory Nos. 8, 14, 16 and 19 and Requests for Production Nos. 23 and 26 is DENIED.
IT IS FURTHER ORDERED that to the extent the plaintiff's requests seek privileged information, MBLX is to provide the plaintiff with a privilege log in compliance with Rule 26(b)(5) of the Federal Rules of Civil Procedure within 10 days of this order together with copies for in camera review by the Court, of all the documents listed in the privilege log.