Williams et al v. Veneman et al

District of Columbia, dcd-1:2003-cv-02245

MEMORANDUM OPINION re ORDER granting {{58}} Defendants' Motion to Compel. Signed by Magistrate Judge John M. Facciola on 4/27/06. (lcjf1,)

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7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________) ROBERT WILLIAMS, et al.,)) Plaintiffs,)) v.) Civil Action No. 03-2245 (CKK/JMF)) MIKE JOHANNS, et al.,)) Defendants.) ____________________________________) MEMORANDUM OPINION This case was referred to me for resolution of discovery disputes. Currently pending before me is Defendants' Motion to Compel. For the reasons stated herein, defendants' motion will be granted. I. BACKGROUND Plaintiffs Robert and Laverne Williams (collectively "plaintiffs") brought this lawsuit against the United States, the Secretary of the United States Department of Agriculture ("USDA"), the USDA's Deputy Assistant Secretary for Civil Rights, and the USDA's Deputy Director of the Office of Civil Rights alleging denial of due process and equal protection in violation of the Fifth Amendment and denial of their USDA loan application based on their race (African-American) in violation of the Equal Credit Opportunity Act of 1972 ("ECOA"), 15 U.S.C. § 1691 et seq.1 Plaintiffs' First Amended Complaint ("Am. Compl.") ¶¶ 32-41. On April 30, 2004, defendants filed a motion to dismiss. On July 5, 2005, defendants' motion was granted and, as a result, plaintiffs' only remaining claim is that the denial of their 2003 application for a 1 Citation is to the electronic version available through Westlaw or Lexis. 7 Farm Service Agency ("FSA") loan was in violation of the ECOA. Williams v. Veneman, C.A. No. 03-2245 (D.D.C. July 5, 2005) (order granting motion to dismiss). On September 23, 2005, defendants served their first set of interrogatories and requests for production of documents on plaintiffs. Defendants' Memorandum in Support of Their Motion to Compel ("Defs. Mem.") at 3. Plaintiffs provided their responses to defendants' discovery requests on February 16, 2006. Id. at 5. After reviewing plaintiffs' responses, defendants informed plaintiffs that the responses were inadequate and, on March 6, 2006, plaintiffs provided revised responses. Id. at 1-2. The revised responses, however, were also inadequate and, therefore, on March 21, 2006, defendants filed the present motion to compel. Shortly thereafter, on March 23, 2003, Judge Kollar-Kotelly granted defendants' unopposed motion to extend the deadline for discovery from July 19, 2006 to September 20, 2006. II. DISCUSSION A. The Basic Requirements of Rules 33 and 34 Under Rule 33 of the Federal Rules of Civil Procedure, plaintiffs are required to answer each interrogatory "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 answer to the extent the interrogatory is not objectionable." Fed. R. Civ. P. 33(b)(1). Similarly, under Rule 34, plaintiffs must "state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated" and "inspection permitted for the remaining parts." Fed. R. Civ. P. 34(b). Failing to respond as required may have several consequences. First, if the requesting party has to resort to filing a motion to compel in order to obtain the requested information, the 2 7 responding party may be ordered to reimburse the moving party for the expenses incurred in bringing the motion to compel, including reasonable attorney's fees. Fed. R. Civ. P. 37(a)(4)(A). Failure to respond could also result in more severe sanctions, such as an order deeming certain facts as established against the responding party, prohibiting the responding party from introducing evidence of particular claims, striking sections of the responding party's pleadings, or even entering judgment by default against the responding party. Fed. R. Civ. P. 37(d). B. Plaintiffs' Discovery Responses The following chart provides each of defendants' interrogatories, plaintiffs' initial answers to those interrogatories, and plaintiffs' revised answers.2 Number Interrogatory Initial Answer Revised Answer 1 Identify persons with "Plaintiff objects on the "Plaintiff objects on the knowledge relevant to basis that said request is basis that said request is allegations relating to overly broad and seeks overly broad and vague." plaintiffs' 2003 farm information of a Names certain persons but operating loan descriptive nature that is does not provide the facts application. State the more appropriately sought of which those persons facts of which each such through use of deposition have knowledge. person has information or testimony." Names four knowledge. persons. States: "Will supplement." 2 The information in this chart was obtained from Exhibits 1, 7 and 18 to Defendants' Memorandum in Support of Their Motion to Compel. 3 7 2 State factual bases for "Plaintiff objects on the "Plaintiff objects on the contention that defendant basis that said request is basis that said request is violated the ECOA by overly broad and seeks overly broad and vague." denying 2003 farm information of a Repeats the allegations of operating loan application descriptive nature that is the complaint. States: on basis of race and more appropriately sought "See Original and indicate date of each through use of deposition Amended Complaint." discriminatory incident testimony." Repeats the and the discriminatory act allegations in the performed by USDA complaint. States: "Will employee claimed to be supplement." racially motivated. 3 State whether plaintiffs "Plaintiff objects on the "Yes. See answer to contend that the handling basis that said request is Interrogatory Number 2." of their 2003 loan overly broad and seeks application is an ECOA information of a claim distinct from the descriptive nature that is denial of their 2003 farm more appropriately sought operating loan. If so, state through use of deposition factual bases for that testimony." States: "Yes. contention and identify See answer to Interrogatory discriminatory acts. Number 2." 4 State whether plaintiffs "Plaintiff objects on the "Yes. See answer to contend that USDA basis that said request is Interrogatory Number 2. violated the ECOA in overly broad and seeks FSA has all such handling of administrative information of a documents in its file." complaint and state descriptive nature that is factual bases for that more appropriately sought contention. through use of deposition testimony." States: "Yes. See answer to Interrogatory Number 2. FSA has all such documents in its file." 5 Describe facts relating to "Yes. See Original and "Yes. See Original and 2003 farm operating loan Amended Complaint and Amended Complaint and application; state factual answer to Interrogatory answer to Interrogatory bases for contention that Number 2. FSA has all Number 2. FSA has all plaintiffs were told to such documents in its file." such documents in its file." reapply. 4 7 6 State whether plaintiffs "Plaintiff objects on the "Yes. See Original and contend that their basis that said request is Amended Complaint as application was complete overly broad and seeks well as Office of Civil and established eligibility, information of a Rights Complaint file." whether plaintiffs have descriptive nature that is previously filed more appropriately sought incomplete applications, through use of deposition and whether plaintiffs testimony." States: "Yes. have discussed such Will supplement." applications with USDA. 7 State bases for contention "Objection, relevance. "Yes. See Original and that "rather than being Plaintiff objects on the Amended Complaint and permitted to amend this basis that said request is Office of Civil Rights error" application was overly broad and seeks file." denied and state whether information of a plaintiffs contend that descriptive nature that is they were entitled to or more appropriately sought should have been through use of deposition permitted to amend the testimony." States: "Will error. Supplement." 8 State name of every "Plaintiff objects on the Provides two names and similarly situated white basis that said request is states: "All white farmers farmer whose application overly broad and seeks in Nolan County who use for a farm operating loan information of a FSA services. FSA was treated more descriptive nature that is maintains all such files." favorably than plaintiffs' more appropriately sought application. through use of deposition testimony." Provides two names and states: "All white farmers in Nolan County who use FSA services. FSA maintains all such files." 9 State whether plaintiffs "No appeal was made." "No appeal was made."3 administratively appealed the denial of their 2003 farm operating loan application. 3 Defendants are not moving to compel any further response to Interrogatory No. 9. Defs. Mem. at 2. 5 7 10 Identify each injury for "Plaintiff objects on the "Loss of all farm income which plaintiffs seek basis that said request is for 2003 through present." damages and the injuries overly broad and seeks underlying their information of a contention of injury to descriptive nature that is business relations, credit more appropriately sought reputation, and standing through use of deposition in the community. testimony. Loss of all farm Specify dollar amount for income. Will supplement each such injury. with details." 11 Describe financial status "Plaintiff objects on the "None." since denial of 2003 farm basis that said request is operating loan overly broad and seeks application. information of a descriptive nature that is more appropriately sought through use of deposition testimony." States: " Will supplement." 12 Describe treatment sought "Plaintiff objects on the "Dr. Waymon Hinson. See or obtained from any basis that said request is production for complete health care provider as a overly broad and seeks report." result of USDA's alleged information of a violation of ECOA with descriptive nature that is respect to plaintiffs' 2003 more appropriately sought farm operating loan through use of deposition application. testimony. Dr. Wayne Hinson. See Production for Complete Report." 13 Identify witnesses. "Plaintiff objects on the "Will supplement." basis that said request is overly broad and seeks information of a descriptive nature that is more appropriately sought through use of deposition testimony. Will supplement." 6 7 14 State bases for allegation "Plaintiff objects on the "See 7 CFR." that "by law, all [farm basis that said request is operating] loans are overly broad and seeks extended to first time and information of a socially disadvantaged descriptive nature that is farmers, including black more appropriately sought farmers. . . ." through use of deposition testimony. See 7 CFR." 15 Identify documents relied "Will supplement." "In responding to the upon in responding to Defendant's interrogatories or interrogatories, the otherwise related to Plaintiff's file was used." plaintiffs allegations or damages claims with respect to their 2003 farm operating loan application. 16 Identify persons contacted "None." "None." or involved in responding to interrogatories or solicited for information in support of lawsuit or who investigated any aspect of it. The following chart provides each of defendants' requests for production of documents, plaintiffs' initial responses to those requests, and plaintiffs' revised responses.4 Number Request Initial Response Revised Response 1 Documents used to "None." "Documents used to answer interrogatories. answer interrogatories are work product and protected as privileged." 4 The information in this chart was obtained from Exhibits 2, 8 and 19 to Defendants' Memorandum in Support of Their Motion to Compel. 7 7 2 Documents that refer to "Plaintiff further objects See affidavits of plaintiffs; the denial, handling, and on the basis that said "Plaintiff previously processing of plaintiffs' request is overly broad produced all other 2003 farm loan and seeks information of a documents and Defendant application. descriptive nature that is has possession of all other more appropriately sought documents through the through the use of Office of Civil Rights." deposition testimony. Without waiving object [sic], all such documents are in the possession of the USDA/FSA." 3 Written complaints of "Plaintiff further objects See affidavits of plaintiffs. discrimination submitted on the basis that said to USDA concerning request is overly broad 2003 farm operating loan and seeks information of a application. descriptive nature that is more appropriately sought through the use of deposition testimony. All such documents are in the possession of the USDA Office of Civil Rights." 4 Documents that refer to "Plaintiff further objects See affidavits of plaintiffs. handling or processing of on the basis that said any complaints of request is overly broad discrimination made by and seeks information of a plaintiffs regarding their descriptive nature that is 2003 loan application. more appropriately sought through the use of deposition testimony. See Response to # 3." 5 Documents pertaining to "Plaintiff further objects "See psychological damages. on the basis that said evaluation by Dr. Waymon request is overly broad R. Hinson, Ph.D." and seeks information of a descriptive nature that is more appropriately sought through the use of deposition testimony. Will supplement." 8 7 6 Documents pertaining to "Plaintiff further objects "Plaintiff objects to this treatment received. on the basis that said request on the basis that request is overly broad said request is overly broad and seeks information of a and burdensome. Without descriptive nature that is waiving the objection, more appropriately sought plaintiff encloses the through the use of Psychological Evaluation deposition testimony. by Dr. Waymon Hinson, Without waiving Ph.D." objection, the Report of Dr. Waymon Hinson is produced." 7 Documents that describe "Plaintiff further objects "Plaintiff objects to this any physical or emotional on the basis that said request on the basis that disorder plaintiffs request is overly broad said request is overly broad suffered with respect to and seeks information of a and burdensome. Without ECOA claim relating to descriptive nature that is waiving the objection, 2003 farm operating loan more appropriately sought plaintiff encloses the application. through the use of Psychological Evaluation deposition testimony. by Dr. Waymon Hinson, Will supplement." Ph.D." 8 Income tax returns for "Plaintiff further objects blank 2003 and 2004. on the basis that said request is overly broad and seeks information of a descriptive nature that is more appropriately sought through the use of deposition testimony. Will supplement." 9 Documents that relate to "Plaintiff further objects "Plaintiff objects to this plaintiffs' financial status on the basis that said request on the basis that since the denial of their request is overly broad said request is overly broad 2003 farm operating loan and seeks information of a and burdensome." application. descriptive nature that is more appropriately sought through the use of deposition testimony. Will supplement." 9 7 10 Documents that refer or "Plaintiff further objects blank relate to monetary relief on the basis that said plaintiffs seek with request is overly broad respect to their ECOA and seeks information of a claim(s) regarding the descriptive nature that is 2003 farm operating loan more appropriately sought application. through the use of deposition testimony. Will supplement." 11 Documents that relate to "Plaintiff further objects blank claim for injunctive relief. on the basis that said request is overly broad and seeks information of a descriptive nature that is more appropriately sought through the use of deposition testimony." 12 Documents that refer or "Plaintiff further objects blank relate to similarly situated on the basis that said white farmers whose request is overly broad applications or complaints and seeks information of a were treated more descriptive nature that is favorably. more appropriately sought through the use of deposition testimony. All such documents are in the possession of USDA." 13 Documents prepared or "Will supplement." blank considered by an expert witness. 14 Documents intended to be "Plaintiff further objects blank offered in support of on the basis that said ECOA claim(s). request is overly broad and seeks information of a descriptive nature that is more appropriately sough [sic]. In possession of USDA." 10 7 15 Documents referenced in "Plaintiff further objects "Plaintiff objects to this ¶¶ 1-11, 28-31, and 36-42 on the basis that said request on the basis that of the Complaint. request is overly broad said request is overly broad and seeks information of a and burdensome." descriptive nature that is more appropriately sought through the use of deposition testimony." 16 Documents that relate to "Plaintiff further objects "Plaintiff objects to this plaintiffs' ECOA claim(s) on the basis that said request on the basis that regarding their 2003 loan request is overly broad said request is overly broad application, the facts and seeks information of a and burdensome." underlying those claims, descriptive nature that is and any other complaint more appropriately sought or grievance that plaintiffs through the use of filed or considered filing deposition testimony." about those claims. 17 Curriculum vitae of "Will supplement." blank expert witnesses. C. Plaintiffs' Answers to Defendants' Interrogatories Are Insufficient Plaintiffs' "answers" to defendants' interrogatories are utterly deficient. First, plaintiffs' answers provide defendants with little to no substantive information. To illustrate, in response to Interrogatory No. 1, which asked plaintiffs to identify persons with relevant knowledge and to state the facts of which those persons have knowledge, plaintiffs did not provide any facts of which the persons they named have knowledge. See Interrogatory No. 1; Answer No. 1.5 As to Interrogatory Numbers 2 through 7, plaintiffs' answers refer defendants to their 5 Throughout the remainder of this memorandum opinion, defendants' interrogatories will be cited to as "Interrogatory No. ___" and plaintiffs' answers and revised answers will be cited to as "Answer No. ___." 11 7 original and amended complaints, but there are only two paragraphs in plaintiffs' amended complaint that provide any factual information about the denial of their 2003 loan application, which is the only remaining claim in this lawsuit. See Am. Compl. ¶¶ 28-29. These two paragraphs recount how plaintiffs applied for the loan, the information they received from the USDA concerning why it denied the application as fraudulent, and the administrative complaint that plaintiffs filed as a result of that denial. Id. Those allegations cannot possibly constitute answers to the specific interrogatories posed. Nor is it any answer, when asked for the support for a contention, to refer defendants to a "file." See Interrogatory Nos. 4, 6 and 7; Answer Nos. 4, 6 and 7. Defendants asked for plaintiffs' legal or factual support for particular, well-defined contentions. Simply noting the existence of a file is obviously not a sufficient answer. Nor is the existence of a file an answer to an interrogatory asking for the facts pertaining to plaintiffs' loan application. See Interrogatory No. 5; Answer No. 5. Other of plaintiffs' answers to defendants' interrogatories are so cavalier as to border on the contumacious. The word "none" cannot possibly be a legitimate answer to a request to describe plaintiffs' financial status since 2003. See Interrogatory No. 11; Answer No. 11. Are plaintiffs suggesting that they had no financial status whatsoever? Even being bankrupt is a financial status. It is equally cavalier, when asked to identify similarly situated white farmers whose applications for farm operating loans were treated more favorably, to answer "all white farmers in Nolan County who use FSA services." See Interrogatory No. 8; Answer No. 8. First, the only white farmers who could possibly be similarly situated are those who applied for loans – not all white farmers who used any FSA services whatsoever. Second, the only white farmers who are similarly situated and were treated more favorably than plaintiffs are those who had their 12 7 loans approved; those who had their loans disapproved, like plaintiffs, were not treated any more favorably. Providing a psychological report concerning plaintiffs' mental health is not responsive to an interrogatory asking whether plaintiffs received treatment from a health care provider. See Interrogatory No. 12; Answer No. 12. Nor is saying that "plaintiff's file" was used responsive to a request for the identification of the specific documents used to respond to defendants' interrogatories. See Interrogatory No. 15; Answer No. 15. Further, simply providing an incorrect reference to the Code of Federal Regulations ("7 CFR") does not answer a request to state the basis for the allegation that loans are extended to first time and socially disadvantaged farmers. See Interrogatory No. 14; Answer No. 14. In addition to providing no substance, plaintiffs' objections to defendants' interrogatories are unfounded. For example, plaintiffs' objection to many of the interrogatories as overly broad is frivolous. As the chart illustrates, none of defendants' interrogatories are overly broad or vague. Moreover, like every other judge, I will not even consider claims of burdensomeness without an affidavit specifying exactly why this is so. See Caldwell v. Ctr. for Corr. Health and Policy Studies, 228 F.R.D. 40, 44 (D.D.C. 2005). None was submitted and it is absurd to describe interrogatories such as Interrogatory No. 2, which asks plaintiffs to state the factual bases for their contention that defendants violated the ECOA by denying their loan application on the basis of race, as being "overly broad." Finally, plaintiffs have failed to comply with the fundamental requirements of form set forth in the Local and Federal Rules of Civil Procedure. Plaintiffs' initial answers were not signed by either plaintiffs or counsel and plaintiffs' revised answers were not signed by counsel. 13 7 Further, plaintiffs' counsel appears to have attempted to supplement answers by simply e-mailing documents to defendants' counsel. See Defs. Mem., Exh. 14, 15. For example, on March 5, 2006, plaintiffs' counsel sent two e-mails stating that he was forwarding information responsive to defendants' interrogatories. Id. One of these e-mails contains forwarded text that appears to be a newspaper article about black farmers, but there is no indication as to which interrogatory this article may be responsive and, because it is an email, it is not signed by either counsel or plaintiffs. Defs. Mem., Exh. 14. In the other e-mail counsel forwarded a document entitled "Robert and Laverne Williams Statement of Damages." Defs. Mem., Exh. 15. Again, the e-mail contains no indication as to which interrogatory this statement was responsive and the statement of damages was not signed by either counsel or plaintiffs. Under the local and federal rules, any supplementation of plaintiffs' interrogatory answers must quote the interrogatory to which the answer is responsive and be signed under oath by both the responding party and, if objections are made, by the objecting attorney. See Fed. R. Civ. P. 33(b)(2); LcvR 26.2(d). Simply attaching unexplained documents to e-mails does not comport with these requirements and, therefore, does not constitute a supplemental interrogatory answer. D. Plaintiffs' Responses to Defendants' Requests for Production of Documents are Insufficient Plaintiffs' responses to defendants' document requests are similarly deficient. With two exceptions, plaintiffs objected to defendants' document requests with the following phrase: "Plaintiff further objects on the basis that said request is overly broad and seeks information of a descriptive nature that is more appropriately sought through the use of deposition testimony." 14 7 Responses 2-12, 14.6 This objection is frivolous; that a witness can speak to a certain topic does not relieve a party from producing documents that pertain to that topic. Information can be communicated in many ways. That it can be conveyed in one way hardly makes all of the production of other ways of communicating it unnecessary. Plaintiffs objection to Request No. 1, which seeks all documents relied on in answering defendants' interrogatories, on the ground that the "[d]ocuments used to answer interrogatories are work product and protected as privileged" is equally frivolous. See Request No. 1; Response No. 1. First, documents used to answer interrogatories are not in themselves privileged. Only documents prepared in anticipation of litigation by a party or a party's representative are protected by the work product privilege. Fed. R. Civ. P. 26(b)(3). A document that does not meet this qualification, although used to answer the interrogatories, is not ipso facto privileged. Furthermore, to the extent that plaintiffs are asserting privilege, they must produce a privilege log that meets the demanding requirements of Rule 26(b)(5) and identifies each document withheld from production under a claim of privilege. Plaintiffs, of course, have not done so. Plaintiffs' other objections are also frivolous. As the chart illustrates, none of the defendants' requests to produce documents are overly broad or vague. Moreover, as I have explained, I will not even consider claims of burdensomeness without an affidavit specifying exactly why this is so. See Caldwell, 228 F.R.D. at 44. None was submitted and it is absurd to describe document requests asking plaintiffs to provide copies of their complaints of discrimination, see Request No. 3, or their income tax returns for two years, see Request No. 8, 6 Throughout the remainder of this memorandum opinion, defendants' document requests will be cited to as "Request No. ___" and plaintiffs' answers and revised answers will be cited to as "Response No. ___." 15 7 as being "overly broad." E. The Mootness of the Controversy In response to defendants' twenty-two page motion to compel, plaintiffs filed a three page opposition asserting that defendants' motion is moot because Judge Kollar-Kotelly extended the discovery deadline by nine weeks. Plaintiffs' Response to Defendant's Motion to Compel. As evidenced by the proceeding discussion of the deficiencies in plaintiffs' discovery responses, defendants' motion is clearly not moot. More than an extension of time is necessary to cure these deficiencies. Moreover, although the discovery period has been extended to September 20, 2006, plaintiffs do not have until that date to properly and adequately respond. To the contrary, plaintiffs' responses were due on February 16, 2006 and are now two months overdue. These responses are just the beginning of discovery, and defendants are entitled to have answers to their interrogatories and the necessary documents in order to thoroughly conduct subsequent discovery, such as designating expert witnesses and taking depositions. III. SANCTIONS Under Rule 37(a)(4), when a motion to compel is granted, "the court shall, after affording an opportunity to be heard, require the party. . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(4)(A) (emphasis added). As demonstrated by the proceeding discussion, defendants' motion to compel was the direct result of plaintiffs' counsel's total disregard of his obligations under the Local and Federal Rules of Civil Procedure. Accordingly, plaintiffs' counsel has ten days from the date of this memorandum opinion to file a brief showing cause why he should not be ordered to pay the 16 7 expenses, including reasonable attorneys' fees, incurred by defendants in bringing this motion to compel. IV. CONCLUSION For the forgoing reasons, defendants' motion to compel will be granted. Plaintiffs are instructed to provide complete answers to defendants' interrogatories and complete responses to defendants' requests for production of documents within ten days from the date of this memorandum opinion. ____________________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE Dated: 17