Summary
overruling objection that interrogatory sought information equally available to both parties
Summary of this case from Charter Practices Int'l, LLC v. RobbOpinion
NO. 5:97-CV-519-BR(4)
December 6, 2000
ORDER
This matter is before the court upon motion filed August 7, 2000, by defendant Branch Banking Trust ("BBT") to compel plaintiffs Karen Irene Shealy Lucas, Patsy Hinnant, Ruby Poythress Glover, Edith Corrine Solomon Logan, Wendy Watson Boykin, and Alan Satterly ("plaintiffs") to respond to BBT's First Set of Class Certification Interrogatories pursuant to Rule 37 of the Federal Rules of Civil Procedure. BBT seeks an order compelling plaintiffs to provide further, more complete responses to certain interrogatories. BBT also moves for the award of its reasonable costs and expenses incurred in filing the motion to compel, including attorneys' fees. Plaintiffs have responded and also seek costs and expenses, including attorneys' fees, in defending against the motion. Accordingly, this matter is ripe for ruling.
While BBT served a set of class certification interrogatories on other named plaintiffs, their responses are not now in dispute.
BACKGROUND
The Second Amended Complaint in this class action alleges several violations under both ERISA and state law by BBT and other defendants premised upon mismanagement of plaintiffs' retirement plans. The original Scheduling Order entered October 12, 1999, set forth a two-phase approach to discovery. Phase I allows for discovery relating to class certification issues and provides a mechanism for the parties to consider and participate in mediation. Phase II of the discovery process, which relates to the merits of the case, would not begin until the completion of mediation. By order entered July 25, 2000, the discovery schedule was modified to provide, among other things, that Phase I discovery would be completed on the earlier of the completion of mediation or October 30, 2000. The court certified the class and further divided the class into two separate sub-divisions by order entered September 25, 2000.
On March 14, 2000, BBT served the interrogatories at issue. Interrogatory Nos. 1, 3, and 4(b) and (c), set forth below, are the subject of BBT's motion to compel:
Interrogatory No. 1. State the date and amount of each contribution made by you as a participant to (a) the Wilson Clinic MPP Plan and (B) the Wilson Clinic 401(k) Plan.
* * * * *
Interrogatory No. 3. For each of the Wilson Clinic Plans in which you participated, state the date and amount of each withdrawal made by you from the Wilson Clinic Plans.
* * * * *
Interrogatory No. 4. Since January 1, 1980, have any of your money or investments been deposited with or managed by any of the defendants in this action? If yes, identify:
* * * * *
(b) The years each defendant held or managed your money or investments.
(c) The value of such money or investments as of December 31 of each calendar year identified in subparagraph (b).
In the instant motion and supporting memorandum, BBT characterizes Interrogatory No. 4 as seeking information pertaining solely to BBT and not also to each defendant as originally framed.
Plaintiffs served unsworn responses April 17, 2000 stating blanket objections premised upon general assertions of burdensomeness, over-inclusiveness, and confidentiality concerns. Plaintiffs incorporated these objections into each response and then proceeded to respond separately to the interrogatories at issue mainly along lines of "I don't know." Lack of knowledge often is put forward on the basis that others have access to the requested information. Where dollar amounts and dates of any contribution or withdrawal are requested, together with dates of any management by BBT, and answers are attempted, vague responses keyed to plaintiffs' respective employment terms often are made.
BBT filed the instant motion to compel through its counsel August 7, 2000, after unsuccessful informal attempts to reach resolution. Plaintiffs requested and received two separate 30-day enlargements of time in which to respond to the motion, extending the response deadline to October 19, 2000. Plaintiffs filed response October 23, 2000, after expiration of this deadline. Rule 37(a) certification was submitted on behalf of BBT through form of a separate filing November 7, 2000, which reaffirms prior attempts to secure discovery. Upon change of the magistrate judge designation pursuant to order of the Clerk of Court, the instant motion was referred November 20, 2000 for ruling.
DISCUSSION
Although plaintiffs attempted to respond to these interrogatories, BBT contends that plaintiffs' answers to Interrogatory Nos. 1, 3, and 4(b) and(c) are unsatisfactory because they are incomplete and non-responsive. For the purposes of determining a motion to compel discovery, evasive or incomplete responses are to be treated as a failure to answer. See Fed.R.Civ.P. 37(a)(3).
Plaintiffs contend, without benefit of any case citation in their memorandum in opposition to the instant motion, that the motion to compel is moot because the proposed class has been certified. They should be relieved from making further responses also because BBT's own records should contain the information requested. With respect to Interrogatory No. 4(b), plaintiffs assert that further response is not required because it seeks information which is a question of law. Interrogatory No. 4(c) is premature because its seeks factual information in controversy which should be a part of Phase II discovery. For these reasons plaintiffs argue BBT's motion to compel further responses to Interrogatory Nos. 1, 3, and 4(b) and (c) should be denied. The court considers below the arguments of the parties and, in considering plaintiffs' position, the court also assesses the objections originally made to the interrogatories in plaintiffs' April 17, 2000 responses at issue.
A. Mootness
Plaintiffs argue that the motion to compel relates to matters that now are moot since the information sought by BBT in interrogatories propounded March 14, 2000 apparently relates only to class certification issues and the class was certified by order dated September 25, 2000. Plaintiffs contend that BBT did not make its motion filed August 7, 2000 timely, made the motion after the class certification discovery and briefing had concluded, and has not made a motion to reconsider the court's ruling maintaining the class action.
Plaintiffs appear to ignore that the order modifying the discovery schedule allows Phase I discovery until the earliest of the completion of mediation or October 30, 2000. Further, the motion to compel was filed more than a month before the order certifying the class was entered. Ruling on the instant motion has been delayed because of plaintiffs' separate requests for two 30 day extensions of time to respond.
Moreover, Rule 23 of the Federal Rules of Civil Procedure provides that an order certifying a class for class action litigation "may be conditional, and may be altered or amended before the decision on the merits." Fed.R.Civ.P. 23(c)(1). Thus, examining the prerequisites listed in Rule 23(b)(1), courts are "required to reassess their class rulings as the case develops." Boucher v. Syracuse University, 164 F.3d 113, 118 (2nd Cir. 1999) (quoting Barnes v. The American Tobacco Co., 161 F.3d 127, 140 (3rd Cir. 1998) (internal citations omitted)).
The U.S. Court of Appeals for the Fourth Circuit ("Fourth Circuit") has noted that should the potential problems of class action litigation offset the advantages that the class mechanism might afford, class certification may have to be reconsidered. See Central Wesleyan College v. W.R. Grace Co., 6 F.3d 177, 186 (4th Cir. 1993); see also Stott v. Haworth, 916 F.2d 134, 139 (4th Cir. 1990) ("[A]n order certifying a class must be reversed if it becomes apparent, at any time during the pendency of the proceeding, that class treatment of the action is inappropriate.").
Therefore, the motion to compel is not made moot. The court has a continuing obligation to amend the order certifying a class at any time prior to a decision on the merits if it appears that managing the litigation as a class action is not proper. In fact, the district court left open the opportunity to further examine the class in its certification order when it held "[a]lthough Defendant BBT proposes further subdivision of the class, the court does not find that such further subdivision is warranted at this time." BBT's interrogatories relating to class certification, therefore, remain relevant now, after the class has been certified.
Accordingly, for these several reasons, including that some delay affecting disposition of the instant motion was caused by plaintiffs' several requests for additional time to respond and because the interrogatories remain relevant after certification, the court declines to adopt plaintiffs' contention that the interrogatories relate to matters now moot.
B. BBT Has Access to the Information Requested
Plaintiffs next argue in their response to the motion to compel that the information sought is as readily accessible to BBT as to plaintiffs. Generally an interrogatory is proper although the information sought is equally available to both parties. See Wilmington Country Club v. Horwath Horwath, 46 F.R.D. 65 (E.D.Pa. 1969); Gutowitz v. Pennsylvania R. Co., 7 F.R.D. 144, 145 (E.D.Pa. 1945) (overruling objection that interrogatories sought information equally available to both parties). This is true even where the interrogator has at his disposal an adequate or even better source of information. Onofrio v. American Beauty Macaroni Co., 11 F.R.D. 181, 183 (W.D.Mo. 1951).
A great majority of cases even hold that a party may be allowed to inquire about facts already known to it. 8 Charles Alan Wright, Arthur R. Miller Richard L. Marcus, Federal Practice Procedure: Civil § 2014 (2d. ed, 1994). The mere fact that the matters regarding which discovery is sought happen to be within the knowledge of the moving party is not usually grounds for objection because frequently it is not enough for a party to have knowledge of facts. Often it is necessary to narrow and define the issues for trial, see Baim Blank, Inc. v. Philco Distribs., Inc., 25 F.R.D. 86, 87 (W.D.N.Y. 1957), or to transform the facts into evidence that can be readily used at trial. See Spindelfabrik Suessen-Schurr Stahlecker Grill GMBH v. Savio S.P.A., No. C-C-88-139-P, 1989 WL 207909, *1 (W.D.N.C. July 27, 1989).
The court may limit discovery upon determining that the information sought is "unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed.R.Civ.P. 26(b)(1). However, the information before the court does not establish that BBT is abusing the discovery process. Therefore, this contention is not sufficient grounds to deny the motion to compel.
C. Legal Question
Plaintiffs assert that Interrogatory No. 4(b), asking for the years that each defendant held or managed plaintiffs' money or investments, is a question of law and that this is an issue left to be determined either by the court upon pretrial motion or at trial. "An interrogatory otherwise proper is not necessarily objectionable merely because an answer . . . would involve an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time." Fed.R.Civ.P. 33(c).
Interrogatory No. 4(b) essentially is a follow-up question to Interrogatory No. 4(a) which requests that plaintiffs identify "[e]ach defendant who held or managed your money or investments." Interestingly, plaintiffs responded to Interrogatory No. 4(a), not at issue, and then responded to Interrogatory No. 4(b) in their April 17, 2000 answers. Plaintiffs did not put forward in their original responses to either Interrogatory No. 4(a) or (b) April 17, 2000 the specific objection now made in response to the motion to compel. They do not put forward now in their response to the motion to compel any distinction between Interrogatory Nos. 4(a) and (b), either. In fact, plaintiff Ruby Poythress Glover, unlike the others, appears to have responded completely to Interrogatory No. 4(b) in her original answer.
In its discretion as allowed under Rule 33(c), the court finds plaintiffs are not justified in refusing to respond completely to Interrogatory No. 4(b) premised upon argument that it poses a legal question.
D. Premature Question
Plaintiffs contend that Interrogatory No. 4(c), which seeks information pertaining to the value of any money or investments held or managed as of December 31st of each calendar year identified in the preceding subpart, is not an appropriate inquiry under the Phase I discovery process. Phase I allows for discovery relating to class certification issues while Phase II discovery concerns issues of liability and damages.
While information pertaining to the years of management of investments sought in Interrogatory No. 4(b) may be crucial to certification, the values of the investments appear more to affect liability and damages. Thus, the interrogatory is one better addressed during Phase II discovery. Accordingly, plaintiffs will not be compelled to supplement their responses to Interrogatory No. 4(c) contained within BBT's class certification interrogatories.
E. Plaintiffs' Objections
Plaintiffs' five enumerated objections can be narrowed to three contentions: (1) the information sought calls for extensive research and investigation which would cause undue burden or expense; (2) the interrogatories seek production of confidential information without the entry of a protective order; and, (3) the responses are solely those of the named plaintiffs and not of their attorneys or other agents.
Plaintiffs stated the following objections to all interrogatories posed by BBT and incorporated each into their responses, including responses to Interrogatory Nos. 1, 3, and 4(b) and (c):
1. Plaintiff [name] objects to BBT's interrogatories to the extent they are overly broad or overly inclusive and/or call for extensive research and investigation or which would subject plaintiff to annoyance, embarrassment, oppression, or undue burden or expense.
2. Plaintiff [name] objects to the definition of the words "Plaintiffs," "You and "Your" in that, taken literally, such definitions would be unduly broad and overly inclusive. The responses which follow are those of the named plaintiff [name], and not of his attorneys, consultants, advisors, agents, employees, officers, directors, or any other persons or individuals.
3. Plaintiff [name] objects to the definitions of "Wilson clinic," "Wilson clinic Plans," "Wilson clinic Doctors," Wilson Clinic Employees," "Smith Barney," "SBCTC," and "RPA" on the grounds that if taken literally, they would be unduly broad and overly inclusive.
4. Plaintiff [name] objects to the Interrogatories to the extent that they seek the production of confidential information without entry of a protective order.
5. Plaintiff [name's] responses are based on the named [name's] current knowledge and belief, subject to such general and specific objections as are stated herein. The Plaintiff [name's] ongoing investigation may hereinafter determine the identities of additional persons with knowledge of the matters inquired about, other facts, and other documents relating to those matters. The Plaintiff [name] reserves the right to rely on such additional persons or documents as they or their relevance become known.
The court has scrutinized all of plaintiffs' grounds for objection and is of the opinion that such grounds are insufficient under the facts and circumstances to relieve plaintiffs from the duty to respond fully to Interrogatory Nos. 1, 3, and 4(b).
An objection will be sustained if either a particular interrogatory or a set of interrogatories is thought to be so broad and inclusive as to be burdensome. In making that determination the court must balance the burden on the interrogated party against the benefit that having the information would provide to the party submitting the interrogatory. See Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir. 1975). The burden is on the objecting party to show why an interrogatory is improper. Flour Mills of America, Inc. v. Pace, 75 F.R.D. 676, 680 (E.D.Okla. 1977).
As a general rule, a party in answering interrogatories must furnish information that is available to it and that can be given without undue labor and expense. See Pace, 75 F.R.D. at 682 ("A party cannot refuse to answer an interrogatory simply because he would have to consult books or documents in order to prepare a response."). Thus, a party should provide relevant facts readily available to it but should not be required to enter upon independent research in order to acquire information merely to answer interrogatories. In order to justify sustaining an objection on grounds that it requires research by the answering party, it must be shown that the research required is unduly burdensome or oppressive. See Martin v. Easton Pub. Co., 85 F.R.D. 312, 315 (E.D.Pa. 1980) ("To resist answering interrogatories, a party cannot invoke defense of oppressiveness or unfair burden without detailing nature and extent thereof; simply decrying expense to the party will not satisfy such obligation; rather, party must show specifically how each interrogatory is burdensome or oppressive.")
Plaintiffs have made no specific showing that the research required would be oppressive or burdensome sufficient to satisfy such an objection. BBT asserts that the information sought readily should be available as it would appear on plaintiffs' individual tax returns. Plaintiffs do not refute this nor do they demonstrate that consultation of these or other documents bearing this information would constitute an undue burden.
Further, an interrogatory "will not be held objectionable as calling for research if it relates to details alleged in the pleading of the interrogated party, about which it presumably has information, or if the interrogated party would gather the information in the preparation of its own case." Pace, 75 F.R.D. at 680-81, and cases cited therein. Amount and date information pertinent to contributions and withdrawals from the plans, as well as the years of any management by BBT certainly relate to plaintiffs' complaint that BBT and other defendants mismanaged their retirement plans. Thus, it can be presumed that plaintiffs have access to this type of information.
Plaintiffs' remaining objections include that the interrogatories seek confidential information and that the responses should be those of the named plaintiff and not his or her attorneys, consultants, advisors, agents, employees, officers, directors, or any other person or individual. In correspondence responding to BBT's request for more complete answers, included in submissions before the court, counsel for plaintiffs states that he "believe[s] that the rules of discovery require the truthful answers of the Plaintiffs and not Plaintiffs' counsel."
Interrogatories are limited to parties to the litigation and may not be directed to the attorney for a party. See Hickman v. Taylor, 329 U.S. 495, 504 (1947). However, "[a] party clearly cannot refuse to answer interrogatories on the ground that information sought is solely within the knowledge of his attorney." Id. Thus, response indicating that a plaintiff does not have the knowledge to answer an interrogatory is not adequately responsive if counsel for that plaintiff has access to the information and can disclose it. Plaintiffs have not asserted a "work product" privilege or any other type of privilege that would allow a party to withhold information otherwise discoverable. See Fed.R.Civ.P. 26(b)(5). Nor do plaintiffs identify what information sought by BBT is confidential and necessitates a protective order. Therefore, the court finds these general objections to be groundless.
CONCLUSION
Accordingly, BBT's motion to compel is GRANTED IN PART AND DENIED IN PART and in furtherance of this the following is ORDERED by the court:
(1) That plaintiffs shall supplement their responses separately in writing, under oath, to BBT's Interrogatory Nos. 1, 3, and 4(b) at issue.
(2) That plaintiffs shall make their responses within thirty (30) days from date of entry of this order.
(3) That the responses of plaintiffs shall include full and complete answers to each of the above-listed interrogatories to the extent of all information available to each plaintiff, including information from or through plaintiff's attorney(s) or agents, not otherwise privileged. If no responsive information is available to a plaintiff, then said plaintiff shall so state.
(4) That with respect to Interrogatory No. 4(b), plaintiffs' responses may be limited to the years BBT held or managed each plaintiffs' money or investments.
(5) That plaintiffs are not required to supplement responses to Interrogatory 4(c).
(6) Each party shall bear its own costs in this action.