Opinion
No. CIV 04-286 MV/LFG.
November 3, 2004
ORDER ON GAVIN K. YOUNG'S MOTION TO COMPEL DISCOVERY FROM WELLS FARGO
THIS MATTER comes before the Court on the Motion to Compel Complete Answers to Interrogatories and Responses to Request for Production from Wells Fargo [Doc. 48], filed by Gavin K. Young ("Young") on August 18, 2004. Wells Fargo, Plaintiff and Counter-Defendant in this action, filed its Response [Doc. 58], and Young filed a Reply [Doc. 63]. The motion is fully briefed and ready for ruling. No oral argument is necessary. For the reasons given below, Young's Motion to Compel is granted in part and denied in part.
Discussion
After Young filed his Motion to Compel, Wells Fargo supplied some of the discovery requests which formed the basis of Young's motion. In his reply, Young notified the Court that he was therefore withdrawing some of his requests, although he continues to assert his right to other discovery which he says has not been fully forthcoming. Currently at issue are the following Interrogatories: 3-10, 12, 14, 19-20, and 22; and the following Requests for Production: 5, 9-10, 15-16, and 18-19.Factual and Procedural Background
Wells Fargo filed an action against Young in state court on August 26, 2003 seeking to enforce a Retail Installment Contract and Security Agreement, pursuant to which contract Young purchased a 2002 Winnebago motor home from Rocky Mountain R.V. World, Inc. ("RMRV"). The complaint states that the installment contract was assigned to Wells Fargo for financing, that Wells Fargo perfected a security interest in the motor home, and that Young defaulted in making the required payments. Wells Fargo asserted that it was entitled to a writ of replevin and was further entitled to accelerate the contract balance, foreclose the security interest, and sell the vehicle. It asked for entry of judgment in its favor for the balance due on the contract, plus late charges, and for costs, attorney fees and interest.
Young filed an Answer and Counterclaim against Wells Fargo on November 26, 2003, alleging that the motor home was not worth the contract price due to substantial defects and unsafe condition at the time of sale. He denied any default and asserted that the contract had validly been revoked. He also asserted certain affirmative defenses including fraud or misrepresentation in procuring the contract, revocation of the contract due to statutory violations, unclean hands, waiver, estoppel, and the FTC Holder Rule.
Young also brought counterclaims against Wells Fargo, asserting that as holder and assignee of the contract, Wells Fargo is subject to all claims and defenses which Young could assert against RMRV, the seller of the motor home, and Winnebago Industries, Inc. ("Winnebago"), the manufacturer. Young alleged that he purchased the motor home from RMRV on August 30, 2002 and that between September 3, 2002 and January 18, 2003 he took the motor home in for repairs at least five times, for "multiple problems" including leaky shower tub, sewer smells, squeaky brakes, hydraulic leaks, propane leaks from the stove, defective furniture, a light switch too hot to touch, and defective steering mechanism and alignment difficulties which caused the vehicle to "wande[r] all over the road." [Young's Answer and Counterclaim, Ex. to Doc. 1, at ¶¶ 5-10].
Young further alleged that RMRV's attempts to repair the motor home were unsuccessful and that even after RMRV represented that the vehicle was repaired, he continued to have "chronic, acute and severe problems" with it. Due to the nature and extent of the multiple problems, Young contends, the motor home is not fit for its intended use.
In his Counterclaim Young asserts eight causes of action, including: breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, negligent and intentional infliction of emotional distress, violations of the Motor Vehicle Dealers Franchising Act (N.M.S.A. 1978 §§ 57-16-4, 57-16-5, and 15-16-7), violations of the Unfair Practices Act (N.M.S.A. 1978 §§ 57-12-2, 57-12-3), violations of the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act ( 15 U.S.C. §§ 2301- 2312), revocation of acceptance of the contract pursuant to the Uniform Commercial Code as set forth in N.M.S.A. § 55-2-608, and defamation. In short, Young alleges that the motor home was defective and unsafe and was sold under fraudulent circumstances, and that Wells Fargo is liable both as the holder and assignee of the installment contract between Young and RMRV, and for its own wrongful acts.
On January 29, 2004, the state judge granted a stipulated motion filed by Young and concurred in by Wells Fargo, directing that RMRV, Winnebago, and Spartan Motor Chassis, Inc. ("Spartan") be joined as defendants under Young's counterclaim. On March 12, 2004, three of the defendants filed a Notice of Removal to federal court, based on Young's reliance on a federal statute, the Magnuson-Moss Warranty Act, for one of his causes of action.
On April 12, 2004, Young and Wells Fargo filed in this federal action a Stipulated Motion to Set Aside Default Judgment, Transcript of Judgment, and Writ of Replevin [Doc. 5]. In this motion, the parties state that an Order and Default Judgment was entered in the state court action on December 8, 2003. In this Default Judgment, the state district judge made findings that Young had been served with the summons and complaint in the state court action but that he failed to file an Answer and was therefore in default. [Doc. 5 and Exhibits thereto]. As noted above, Young had already filed an Answer and Counterclaim in the state court action on November 26, 2003.
The Order and Default Judgment purported to render judgment against Young in the amount of $115, 451.52, and to issue a Writ of Replevin directing the sheriff to repossess the motor home and deliver it to Wells Fargo. A Transcript of Judgment was issued by the clerk of the state district court, and a Writ of Replevin was issued by the state district judge on December 11, 2003. [Exs. to Doc. 5].
In their joint motion, the parties do not state any grounds for their request to set aside the Default Judgment, Transcript of Judgment and Writ of Replevin. This Court entered a Stipulated Order on April 28, 2004, granting the requested relief. [Doc. 6]. In his Motion to Compel, Young elaborates on the course of events leading to this Stipulated Order. He states that, after Wells Fargo filed its complaint in state court, Young's attorney entered his appearance on November 4, 2003 and that a court-endorsed copy of the entry of appearance was mailed to Wells Fargo three days thereafter. Young contends that on November 6, 2003, local counsel for Wells Fargo agreed to an extension of time until November 26, 2003 for Young to file his Answer and Counterclaim. [Doc. 49 at 2, and Ex. F-1 thereto]. He states that he did file the Answer and Counterclaim within the allotted time, and further that he faxed and mailed Young's revocation of acceptance of the motor home to Wells Fargo, Winnebago, RMRV, and Spartan on November 6, 2003. [Doc. 49 at 2, and Ex. G thereto].
In spite of these proceedings, Young contends, Wells Fargo, "[f]or reasons unknown to Young and without Young's knowledge or consent," filed a Motion for Default Judgment in the state court action, on November 24, 2003. Young alleges further that the Order and Default Judgment, the Transcript of Judgment, and the Writ of Replevin were filed in December 2003 without any notice to Young, and that the motor home was physically repossessed by Wells Fargo on February 5, 2004, without notice to Young that any of the above-described documents was ever filed. Young claims that he became aware of these documents for the first time when the case was removed to federal court in March 2004. He states further that although Wells Fargo agreed to sign the Stipulated Motion and Stipulated Order setting aside the Default Judgment, the Transcript of Judgment, and Writ of Replevin, Wells Fargo has nevertheless refused to return the motor home or any of the payments made by Young on the motor home.
Standards for Discovery
Federal Rule of Civil Procedure 26 generally provides a broad scope for discovery. The rule states that parties may discover "any matter, not privileged, that is relevant to the claim or defense of any party," and that "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
The broad discovery principle under the rules is intended to allow the parties to learn as much as possible prior to trial about each other's claims and defenses so they may better evaluate the case for settlement or, alternatively, be better prepared to meet the proofs at trial. Smith v. Ford Motor Co., 626 F.2d 784, 792 (10th Cir. 1980). Moreover, liberal construction is given to the rules to prevent surprise and trial by ambush. Id., at 797.
However, there are limits to what may be discovered. A court has broad discretion to restrict discovery or tailor it as needed. Even if a matter is relevant and not privileged, discovery may be limited if the Court determines that the requested information is unreasonably cumulative or duplicative, obtainable from another source that is more convenient, less burdensome, or less expensive, or where the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.Proc. 26(b)(2); Smith v. Pfizer, Inc., No. CIV.A.98-4156-CM, 2000 WL 1679483, at *2 (D. Kan. October 26, 2000). In balancing the need for information against the burden of production or risk of harm, the court considers "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(iii).
Prior to rule changes in 2000, relevance was more broadly defined for purposes of discovery. After the 2000 rule revisions, discovery was narrowed in scope from material relevant to the "subject matter of the action," to material relevant any "claim or defense of any party." A party may still obtain discovery of "subject matter" material, however, upon a showing of good cause. Fed.R.Civ.P. 26(b)(1). When the requested discovery appears relevant as defined in the current rule, the party resisting discovery bears the burden of demonstrating the lack of relevance. Bryant v. Farmers Ins. Co., Inc., No. Civ. 01-02390-CM, 2002 WL 1796045, at *2 (D. Kan. July 31, 2002).
The Motion is Properly Before the Court
Prior to considering the particular discovery requests at issue in this motion, the Court addresses Wells Fargo's contention that the Motion to Compel is not properly before the Court due to Young's alleged failure to confer in good faith prior to filing the motion and failure to attach copies of the pertinent discovery requests.
Fed.R.Civ.P. 37(a)(2)(A) and(B) require that a party moving to compel discovery must include in the motion a certification that the moving party has conferred in good faith or attempted to confer with the opposing party in an effort to secure the disclosure without court action. Young did not include a specific certification to this effect in his Motion to Compel. However, in the body of the Motion, counsel for Young does delineate his efforts to resolve these disputes without resorting to the Court, and he includes as exhibits copies of correspondence between himself and the attorneys for Wells Fargo on this subject.
While the Court does not condone a party's failure to provide certification as provided in the Rules of Civil Procedure, the Court can determine from the Motion and exhibits that Young, through his counsel, did indeed make efforts to resolve the dispute prior to filing the Motion to Compel. The parties spar over who didn't call whom, and whether attempts to resolve the dispute went unanswered. [ See, Doc. 49, at 9, 12; Doc. 58, at 4-5; Doc. 63, at 9-10]. The Court finds that both parties could have expended greater effort in this regard, but it will not deny the Motion on this basis.
Wells Fargo asserts that Young failed to attach to the Motion the Interrogatories and Requests for Production at issue as required by D.N.M.LR-Civ. 37(a). The Court rejects the assertion. Young attached copies of Wells Fargo's responses, which included the original discovery requests in full. Neither party has questioned the accuracy of Wells Fargo's reproduction of Young's original requests, and this method of complying with D.N.M.LR-Civ. 37.1 is not deficient. The Motion to Compel is properly before the Court.
Particular Discovery Requests
Interrogatory No. 3
Interrogatory No. 3 asks Wells Fargo to "Identify . . . all written agreements in effect from January 1, 2002 to the present that you have had with the persons and companies involved in repossessing Mr. Young's motor home." Wells Fargo objected on grounds the Interrogatory seeks information which is irrelevant or not reasonably calculated to lead to discovery of admissible evidence.
Wells Fargo states that this interrogatory does not seek the identity of the entity that repossessed the motor home, nor information on how the repossession was accomplished; rather, Young asks Wells Fargo to identify the actual contracts between Wells Fargo and those persons or entities involved in the repossession. Wells Fargo "cannot imagine" how this information could be relevant to the claims or defenses. [Doc. 58, at 8].
Young's position is that Wells Fargo's complaint includes relief in the form of replevin of the motor home and, replevin being an equitable remedy, Wells Fargo must come into court with "clean hands" before it is entitled to any equitable remedies. Young argues that Wells Fargo's repossession was accomplished "illegally, improperly, negligently and in violation of statutory law" [Doc. 63, at 3], and that its "unclean hands" make it ineligible to ask for replevin.
Young further contends that the fact that Wells Fargo already has the motor home, due to its self-help repossession, does not alter the equities. Wells Fargo maintains that it has not invoked the Court's equitable powers because its claims for replevin are now "moot," given the fact that it has obtained physical possession of the motor home.
In addition, Wells Fargo argues that Young has not pled a wrongful repossession claim, and in fact "fails to specifically allege any wrongful conduct by Wells Fargo." [Doc. 58, at 2]. Therefore, Wells Fargo contends, information surrounding the repossession is not relevant and not discoverable in this action. The Court agrees with Young that this contention "is just plain inaccurate." [Doc. 63, at 3-4].
Young filed his Counterclaim in late November 2003, prior to the repossession and, he alleges, prior to the time that he was even aware of the existence of Wells Fargo's motion for default judgment, entry of the Order and Default Judgment, and filing of the Transcript of Judgment and Writ of Replevin. These events, therefore did not form part of his Counterclaim against Wells Fargo. Young's allegations in the Counterclaim against Wells Fargo were based for the most part on its status as holder and assignee of the installment contract, making it liable for the wrongful acts of cocounterdefendants, RMRV and Winnebago. However, in the Sixth and Eighth causes of action, which allege violations of the Unfair Practices Act and refusal to accept Young's revocation of acceptance, Young asserts direct claims against Wells Fargo based on its own improper actions.
In addition, the Initial Pretrial Report states that Young intends to file an amended complaint which deletes the count for negligent infliction of emotional distress and adds a count against Wells Fargo arising out of the repossession; and further that "[o]ther Amendments may occur depending on the discovery." [Doc. 28 at 2]. No such amended pleading has as yet been filed. However, in the IPTR Young lists, as one of his Contentions, the allegation that Wells Fargo is liable to him for failing to honor his revocation of acceptance. Young alleges further:
Wells Fargo, as the holder and assignee of the Installment Contract is subject to all the same claims against Winnebago Industries, Inc. and Rocky Mountain R.V. World, Inc. Wells Fargo is also independently liable for actions taken subsequent to the filing of Gavin K. Young's Counterclaim. Without advising the State District Court Judge that Gavin K. Young had an attorney of record, and without advising Gavin K. Young's attorney of record, Wells Fargo obtained from the State Court Judge a Default Judgment, and Writ of Replevin. Wells Fargo then proceeded to wrongfully repossess Gavin K. Young's motor home, taking and converting his personal possessions and breaching the peace in the process. Well Fargo's actions maybe further caused the Spoliation of Evidence.
[Doc. 28, at 5].
The Court rejects Wells Fargo's argument that its behavior surrounding repossession is not a part of this case and that it therefore need not respond to discovery requests bearing on the repossession since such information is not "relevant to the claims and defenses." The issue of allegedly wrongful repossession was stated in the Initial Pretrial Report, and Wells Fargo did not object to inclusion of this issue at the time the Report was filed. Generally, pretrial orders entered after a Rule 16 conference "shall control the subsequent course of the action." Fed.R.Civ.P. 16(e). Wells Fargo stated in its "Contentions" section of the Initial Pretrial Report that it "denies all allegations and contentions made by Young." [Doc. 28, at 4]. The Court finds that Young has adequately stated causes of action against Wells Fargo based on its conduct in effecting the repossession, and that Wells Fargo's denial puts these matters at issue in this lawsuit.
In addition, the propriety of the repossession is inextricably intertwined with the causes of action that were explicitly pled against Wells Fargo pled in the complaint, including remedies under the Uniform Commercial Code and Unfair Practices Act. Young is, furthermore, entitled to information that tends to shed light on the condition of the motor home at the time of the repossession, as he has placed this issue directly in contention and it goes to the heart of his defenses to Wells Fargo's action.
The Court therefore finds that facts surrounding the manner in which the motor home was repossessed are generally relevant and discoverable, and it rejects any relevancy objection by Wells Fargo on grounds that wrongful repossession is not part of the "claims and defenses" of this case. This ruling does not mean, however, that every discovery request that touches in any way on the repossession issue will be granted. In particular, the Court will not allow Young to make inquiries "into factual matters which could reveal additional wrong doings by Wells Fargo."
Young cites Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389 (1978) for the proposition that "discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues." However, that statement has been eroded somewhat, asOppenheimer was decided prior to the 2000 amendment of the Federal Rules of Civil Procedure which effected a more restrictive definition of discoverable matter as any material specifically "relevant to the claim or defense of any party," Fed.R.Civ.P. 26(b), rather than, as in the past, relevant to the general "subject matter" of the case.
"The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings." Advisory Committee Note to 2000 Amendments, reprinted at 192 F.R.D. 340, 389 (2000). Information which is merely relevant to the subject matter of the case must be supported by a showing of good cause before the Court will order it produced. Id. The Court finds that information which "might reveal additional wrongdoings" would require a stronger showing of good cause than Young has provided in his Motion to Compel.
The Court sees no relevance to the request asking Wells Fargo to identify all contracts between itself and persons or entities who carry out repossessions of collateral under Wells Fargo's assigned installment contracts. Young could make a case that he is entitled to know the identities of those persons who unhooked the motor home from its bearings and drove it wherever it was taken in the course of repossession, as these persons may have information as to the condition of the motor home at that time, and Wells Fargo would have access to this information which Young might otherwise be unable to obtain. However, Young has not established the relevance of written contracts Wells Fargo has executed which govern its relationship with other persons or companies responsible for physical repossession, and the Court sees none. The Motion to Compel will be denied as to Interrogatory No. 3.
Interrogatory No. 4
In this Interrogatory, Young seeks the identities of all persons who were involved in any way, directly or indirectly, with the repossession, inspection, maintenance, repair, service, sale or financing of the motor home, describing for each such person his or her role and activities. Wells Fargo objected on grounds of relevance, but answered subject to the objection that it was unable, at the time of answering, to identify the individuals involved in the financing but would supplement the response "as necessary." In its Response to the Motion to Compel, Wells Fargo now asserts that "despite diligent efforts, [it] has not yet been able to identify those involved in the financing of the motor home." [Doc. 58, at 15, n. 66].
Young argues in his Motion to Compel that information as to the identity of persons involved in the repossession is discoverable, as it may assist Young in establishing the condition of the motor home at the time it was repossessed. The Court agrees but finds that Interrogatory No. 4 goes well beyond asking for the identities of persons involved in the repossession. For example, requesting the identity of "all persons involved in financing" could require Plaintiff to disclose the name of the secretary who typed financial papers, or the name of the clerical assistant who photocopied the papers. The interrogatory is so broadly drawn, it could require disclosure of couriers and others whose identities are not relevant.
The Motion to Compel will be granted as to this Interrogatory, with the limitation that Wells Fargo is to provide information as to the identities of: (1) all persons employed by Wells Fargo who took part in the decision to repossess; (2) all persons who took part in the physical repossession; and (3) all persons who took part in any inspection, or maintenance, repair occurring after repossession was effected. In addition, Wells Fargo is ordered to supply: (4) the identities of all persons involved in the financing of the motor home, save for clerical or ministerial employees.
Wells Fargo stated that it "has not yet been able to identify those involved in the financing of the motor home," despite "diligent efforts." This is not a sufficient answer. A corporation cannot avoid answering an interrogatory by alleging ignorance, if it can obtain the requested information from the sources under its control. Hornung v. Eastern Auto. Forwarding Co., 11 F.R.D. 300, 301 (N.D. Ohio 1951). If a party is unable to supply requested information, it may not simply refuse to answer but must state under oath that it is unable to provide the information and must detail the efforts it made to obtain the information. Hansel v. Shell Oil Corp., 169 F.R.D. 303 (E.D. Pa. 1996).
Answers must be complete, explicit and responsive. If a party cannot furnish details, he should say so under oath, say why and set forth the efforts he used to obtain the information. He cannot plead ignorance to information that is from sources within his control. If a party is a corporation, information in the hands of its agents and others within its control must be supplied. . . . [Where information is unobtainable, the only proper response is] a sworn answer indicating a lack of knowledge and no means of obtaining knowledge. . . .Milner v. National Sch. of Health Tech., 73 F.R.D. 628, 632-33 (D. Pa. 1977).
For each non clerical or non ministerial person identified in response to this Interrogatory, Wells Fargo is directed to state that person's name and role and give a brief description of the person's activities as they relate to this request, or to submit a sworn statement that the company is unable to respond, giving details as to its efforts to obtain the information.
Interrogatory No. 5
In this Interrogatory, Young asks Wells Fargo to identify all persons who were involved in filing the Motion for Default Judgment, the Order of Default Judgment, the Transcript of Judgment, and the Writ of Replevin, described above, and state the substance of each person's involvement. Wells Fargo objects that this information is not relevant and is covered by the attorney client privilege "and/or" work product doctrine; however, it does not give any details as to the basis for its assertion of privilege nor, indeed, does it state which of the two privileges it is asserting.
In its Response to the Motion to Compel, Wells Fargo does not specifically address Interrogatory No. 5; however, it continues to resist any request for discovery of information surrounding its efforts to obtain the default judgment and writ of replevin in state court. Young argues that such information is relevant to its allegations that Wells Fargo obtained these documents, which gave the unjustified appearance of court approval for the repossession, without any notice to him or to his attorney at a time when Wells Fargo knew that Young was represented by counsel who had requested and obtained an extension of time file an Answer. As noted above, the issues as to legal validity of the repossession are part of this case and are relevant to Young's claims against Wells Fargo, as well as to his defenses and to the question of damages.
The Court disagrees with Wells Fargo's assertion that such information deals only with "the actions of counsel in regards to the filing of a motion for entry of default and the obtaining of a default judgment." The Court finds persuasive Young's assertion that the material requested in this Interrogatory will provide "general information about who at Wells Fargo authorized this, why it was authorized, who participated and why?" [Doc. 49, at 5]. Wells Fargo says it "will not waste the Court's time explaining the circumstances under which the default was obtained, other than to note that as Young admits, Wells Fargo signed an Order Setting Aside the Order for Default Judgment, Transcript of Judgment, and Writ of Replevin." [Doc. 58, at 9].
However, these matters are part of this case, as the facts underlying the repossession are relevant to Young's counterclaims against Wells Fargo. Young is entitled to discover the identities of the persons at Wells Fargo who authorized this repossession and how and why the default judgment was obtained, without his knowledge or that of his attorney. Wells Fargo has retained the benefit of that repossession in that it still has the motor home. The fact that it has now signed a Stipulated Order setting aside the default judgment and other documents does not relieve it of the obligation to answer for the conduct alleged by Young.
Wells Fargo does not elaborate on its assertion of privileges in response to Interrogatory No. 5. "The burden of establishing the elements of a privilege rests with the party asserting it."Fisher v. United States, 425 U.S. 391, 423, 96 S. Ct. 1569 (1976). A party seeking to assert the attorney-client privilege or the work product doctrine as a bar to discovery has the burden of making a clear showing that either or both is applicable. Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir. 1984); Peat, Marwick, Mitchell Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984).
The purpose of the attorney-client privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682 (1981). The work product privilege, on the other hand, is not limited to communications. In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982). It exists "to promote the adversary system by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of the opponent," United States v. American Tel. Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980), and is "expressly limited to those matters relating to the lawyer's mental process[e]s developed explicitly for litigation." Vargas v. United States (In re Grand Jury Proceedings), 727 F.2d 941, 945 (10th Cir. 1984), citing Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947).
In Interrogatory No. 5, Young seeks to discover the identities of those persons involved in the filing of the Motion for Default Judgment, the Order of Default Judgment, the Transcript of Judgment, and the Writ of Replevin, and information as to their involvement. The interrogatory does not seek to discover the contents of conversations or the disclosure of privileged information but only the identities of individuals. There is nothing about this information which would discourage full and frank communication between attorneys and their clients nor would reveal any attorney's mental processes regarding litigation. The Motion is granted with respect to Interrogatory No. 5.
Interrogatory No. 6
In this Interrogatory, Young asks Wells Fargo to identify and describe all efforts made to notify Young's counsel of the seeking and filing of the Order of Default Judgment, Transcript of Judgment and Writ of Replevin, or explain why no such effort was made.
Wells Fargo objects to this Interrogatory on grounds of relevance, attorney-client privilege, "and/or" work product doctrine, asserting that the information sought "is directed at the conduct of Wells Fargo's counsel in the present litigation and the rationale behind such conduct." [Doc. 58, at 9]. This assertion is incorrect. For the reasons already discussed above, the Court finds that the information sought in Interrogatory No. 6 is relevant to Young's counterclaims against Wells Fargo. Furthermore, there is nothing in the request that seeks privileged communications between attorney and client nor that would reveal an attorney's mental processes. The Interrogatory merely asks that Wells Fargo detail the efforts it made to comply with its duties under a contract which it is seeking to enforce against Young. The Motion to Compel is granted with respect to Interrogatory No. 6.
Interrogatory No. 7
In this Interrogatory, Young asks Wells Fargo to identify all persons who were presented with the Order of Default Judgment, Transcript of Judgment, and Writ of Replevin prior to physical repossession of the motor home, including all law enforcement agencies and personnel, all parties involved in the repossession, the owner of the land on which the motor home was located, and all others. Wells Fargo objects that this information is not relevant and is covered by the attorney client privilege "and/or" work product doctrine, but it does not give any details as to the basis for its assertion of either privilege.
The information sought is relevant to issues which are part of this lawsuit, and Wells Fargo has not carried its burden of establishing any grounds for assertion of attorney-client or work product privilege. The Motion to Compel is granted with respect to Interrogatory No. 7. Interrogatory No. 8
This Interrogatory asks Wells Fargo to state, for each person or entity identified in the answer to Interrogatory No. 7, the reason why they were provided with a copy of the Order of Default Judgment, Transcript of Judgment and/or Writ of Replevin. Wells Fargo objects on grounds of relevance and the attorney-client privilege "and/or" work product doctrine.
For the reasons given above in connection with Interrogatories 3-7, the Court finds this information to be relevant and notes again the Wells Fargo has not provided the Court with any grounds for assertion of either of the privileges which it mentions in its objections to Interrogatory No. 8. The Motion to Compel is granted with respect to Interrogatory No. 8.
Interrogatory No. 9
In this Interrogatory, Young asks Wells Fargo to identify all persons notified of the efforts to repossess the motor home before it occurred, giving details as to each such notification. Wells Fargo again objects on grounds of relevance and attorney-client privilege "and/or" work product doctrine.
The Court sustains the objection on grounds of relevance. Young is entitled to discover what efforts, if any, were made to notify him or his attorney prior to repossession, but the Court does not find that the identities of any other persons who may have received such notification is relevant to the claims and defenses. The Motion to Compel with respect to Interrogatory No. 9 is denied.
Interrogatory No. 10
In this Interrogatory, Young asks Wells Fargo to describe how the motor home was physically repossessed, how it was entered, prepared, and moved, and how the contents were inventoried. Wells Fargo objects on grounds of relevance, attorney-client privilege, and work product doctrine.
For the reasons given above in connection with Interrogatories 3-7, the Court finds this information to be relevant and notes again the Wells Fargo has not provided the Court with any grounds for assertion of either of the privileges. The Motion to Compel is granted with respect to Interrogatory No. 10.
Interrogatory No. 12
Young asks in this Interrogatory that Wells Fargo identify each person in whose possession, custody or control the motor home was placed, from the first time it came into the possession of Wells Fargo and continuing to the present, stating also the relationship between each such person and Wells Fargo and the circumstances under which each person gained possession. Wells Fargo did not object to this Interrogatory and answered it by stating that the motor home has been in storage with Albuquerque Auto Auction since approximately February 11, 2004. Wells Fargo later supplemented its answer to provide the name and address of the company which actually repossessed the motor home, as well as the address for Albuquerque Auto Auction. [Doc. 58, Ex. G].
Young complains that the response is incomplete, even as supplemented. The Court disagrees. Wells Fargo answered by supplying the names and addresses of the company which effected the repossession and of the company where the motor home is now stored. Having identified the custodian, Young may pursue discovery from the custodian concerning the condition of the motor home at the time it was repossessed.
The Motion to Compel with respect to Interrogatory No. 12 is denied.
Interrogatory No. 14
In Interrogatory No. 14, Young asks Wells Fargo to provide the name, address and title of each person consulted in answering the interrogatories, delineating each interrogatory to which each such person contributed information. Wells Fargo did not object to this request and answered it by giving the name, address and title of one person, Shea Schroeder, Collection Specialist for Wells Fargo, with an address in care of Wells Fargo's Dallas, Texas attorney.
The Court determines that Well Fargo adequately answer the interrogatory and no further response is necessary. The Motion to Compel with respect to Interrogatory No. 14 is denied.
Interrogatory No. 19
In this Interrogatory, Young asks Wells Fargo to identify all the persons involved in the decision to repossess the motor home, provide details as to their involvement, and identify all documents relating to the decision to repossess. Wells Fargo objects on grounds of relevance and asserts attorney-client privilege "and/or" work product doctrine.
As discussed above, the Court rejects Wells Fargo's assertion that the events surrounding the repossession are not relevant to this lawsuit. Wells Fargo has not specifically nor adequately supported its assertion that disclosure of the identities of persons involved in the decision to repossess, and identification of documents relating to that decision, will violate attorney-client or work product privileges, and the Court finds that merely identifying these persons and documents will have no such effect. The Motion to Compel is granted in part with respect to Interrogatory No. 19, insofar as it requests identification of individuals. The interrogatory, however, may be read to require disclosure of an attorney's mental impressions, strategy or advice. To the extent this interrogatory seeks privileged information, the Court sustains Wells Fargo's objections.
Interrogatory No. 20
Young asks Wells Fargo in Interrogatory No. 20 to identify all persons who have "knowledge of any aspects of the transaction and course of dealing with Plaintiff," describing each person's role and activities. Those persons involved in the decision to repossess are excluded from this Interrogatory, as they are covered in Interrogatory No. 19. Wells Fargo did not object to this Interrogatory but responded by, inter alia, referring Young to its answer to Interrogatory No. "4." In its Response, Wells Fargo corrects this reference, stating it was a typographical error and should have read "Interrogatory No. 14." [Doc. 58, at 17 n. 71]. In answering Interrogatory No. 14, Wells Fargo raised objections and listed one name, that of Shea Schroeder, Collections Specialist for Wells Fargo. Wells Fargo also referred Young to its initial pretrial disclosures and Initial Pretrial Report.
Young contends that Wells Fargo's response is evasive and suggests that the following persons should be identified as those "with knowledge of the transaction or course of dealing with Young": persons who dealt with Young regarding financing; persons who inventoried, inspected or examined the motor home after repossession; persons who filled out the inspection report and vehicle condition report after the motor home was repossessed; persons who physically repossessed the vehicle; persons who drove the motor home away during repossession; and persons who reviewed the revocation letter and were involved in the decision to ignore the revocation of acceptance and proceed to obtain a default judgment.
The Court disagrees that Wells Fargo's answer to this Interrogatory is evasive or insufficient.
The Motion to Compel with respect to Interrogatory No. 20 is denied.
Interrogatory No. 22
In this Interrogatory, Young asks Wells Fargo to state all material facts and identify all witnesses and documents supporting each of its affirmative defenses. Wells Fargo objects on grounds this is a contention interrogatory and therefore premature at this stage of the litigation. It also asserts an objection based on work product doctrine.
Wells Fargo is correct that this is a relatively early stage of the litigation. The most recent Order setting pretrial deadlines [Doc. 50] allows Young until November 15, 2004 to amend his pleadings, and he has indicated that he will probably do so. [ See, Doc. 49, at 8; Initial Pretrial Report, Doc. 28, at 2]. The Order also allows all other parties until November 30 to amend theirs. Discovery will remain open until February 22, 2005.
Rule 33(c) provides that:
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves 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 pre-trial conference or other later time.
Contention interrogatories, which ask a party to state what it contends or to state all facts on which it bases its contentions, are permissible but are generally more appropriate and helpful if postponed until near the end of the discovery period. Everett v. USAir Group, Inc., 165 F.R.D. 1 (D.D.C. 1995).
The Court will not require Wells Fargo, at this point, to respond to the Interrogatory to the extent it asks for "all material facts which support" each affirmative defense; Young may resubmit this question later in the discovery period, if he has not used all of his allocated interrogatories.
However, the Interrogatory also asks Wells Fargo to identify each witness with knowledge of facts supporting affirmative defenses and asks it to identify all documents which support its defenses. This is the type of information required to be disclosed in initial disclosures pursuant to Fed.R.Civ.P. 26(a)(1)(A) ("each individual likely to have discoverable information that the disclosing party may use to support its claims and defenses . . ., identifying the subjects of the information); and 26(a)(1)(B) ("all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses").
Contention interrogatories ask a party: to state what it contends; to state whether it makes a specified contention; to state all the facts upon which it bases a contention; to take a position, and explain or defend that position, with respect to how the law applies to facts; or to state the legal or theoretical basis for a contention. Fischer and Porter Co. v. Tolson, 143 F.R.D. 93, 95 (E.D. Pa. 1992); In re Convergent Technologies Securities Litigation, 108 F.R.D. 328, 332 (N.D. Cal. 1985). However, questions seeking the identification of witnesses or documents are not contention interrogatories.B. Braun Medical Inc. v. Abbott Labs., 155 F.R.D. 525, 527 (E.D. Pa. 1994). See also, Everett v. USAir Group, Inc., supra, at 3 ("Insofar as Interrogatory Nos. 7, 8, and 10 request the identification of documents or witnesses, they are not contention interrogatories. Indeed, the documents and information sought are precisely the sort of information that is to be automatically disclosed [pursuant to Rule 26(a)] . . .").
Wells Fargo is directed to answer fully the portion of this Interrogatory which asks it to identify those witnesses on whose testimony it will rely, and documents on which it will rely to support its affirmative defenses. The objection based on privilege will not be considered unless Wells Fargo accompanies its responses with a Vaughn index, as discussed below in connection with Request for Production No. 10.
The Motion to Compel with respect to Interrogatory No. 20 is therefore granted in part and denied in part, as delineated above.
Request for Production No. 5
In this Request, Young asks Wells Fargo to produce "all non-privileged correspondence concerning this motor home." Wells Fargo objects, stating the request is overly broad and seeks documents which are not relevant to the case. Without waiving the objection, it further states that it "will produce at a mutually agreeable time and place, all responsive, relevant, non-privileged documents." As noted above, the parties are in dispute as to which of them is to blame for the failure to connect with regard to this request before this Motion was filed. Wells Fargo did not address this particular Request in its Response to the Motion to Compel, and Young states in his Reply that no documents have ever been produced in response to this Request.
The Court sustains Wells Fargo's objection based on overbreadth. "All non-privileged correspondence concerning this motor home" could include any number of items which have nothing to do with this lawsuit. Some of the documents which Young demands in other Requests for Production may consist of correspondence, and these documents must be produced to the extent ordered in connection with those Requests, as discussed below. Request No. 5 is therefore redundant and the Motion to Compel will be denied with respect to this Request.
Request for Production No. 9
This Request seeks all documents identified in the response to Interrogatory No. 3 concerning written agreements between Wells Fargo and any persons or companies involved in repossessing the motor home. The Motion to Compel is denied with respect to this Request, for the reasons stated above in the discussion of Interrogatory No. 3.
Request for Production No. 10
In this Request, Young seeks all documents identified in, referred to, related to and/or reflected in the answer to Interrogatory No. 6. Wells Fargo objects on the basis of relevance, and presumably also on the basis of attorney-client and/or work product privilege, as it "incorporates its objections to Interrogatory No. 6."
The Court has already ruled that Wells Fargo must respond fully to Interrogatory No. 6, which asks it to detail the efforts it made to notify Young's counsel of the default proceedings or to explain why it did not make such efforts. Young also seeks production of all documents related to this request. Some of these documents, if any exist, may conceivably be covered by the attorneyclient privilege or work product immunity, but the Court cannot adequately evaluate any possible claim that Wells Fargo may be asserting based on these privileges, because its objection is impermissibly vague.
As noted above, a party asserting a privilege has the burden of demonstrating that the privilege is applicable. Wells Fargo has not made such a showing. In addition, a party raising objections based on privilege is obligated to provide an adequate Vaughn index, as set forth in Sanchez v. KPMG Peat Marwick, 1994 U.S. Dist. Lexis 11208 (D.N.M. Aug. 5, 1994). This means that Wells Fargo must identify each document related to the subject matter of Interrogatory No. 6, state the nature of the privilege claimed, and provide "a description of the factual information . . . for each communication as to which privilege is claimed or each document claimed to be work product," including:
The term is derived from Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973).
(1) the place, approximate date, and manner of preparing the document; (2) the name of the person at whose request the document was prepared; (3) the name of each person or persons participating in the preparation of the writing; (4) the name and position, if any of each person to whom the contents of the writings have been communicated by copy, exhibition, reading or substantial summarization; (5) the names of the person or persons presently in custody of the original or true copy of the writing; and (6) a precise statement of the grounds for work product or attorney-client protection for each document.Id., at *6. Without this information, the Court is unable to properly evaluate any claims of privilege.
The Motion to Compel is granted with respect to Request for Production No. 10. Wells Fargo is ordered to provide all documents related in any way to its efforts to notify Young's counsel of the default proceedings described above. If Wells Fargo intends to assert attorney-client or work product privilege as to any such document, it must provide a detailed Vaughn index and set forth specific grounds for assertion of the privileges as to each such document, describing how the document either constitutes a privileged communication between attorney and client or how it would reveal an attorney's mental process in connection with litigation. "A party must provide enough helpful information to enable a judge to make a determination about the privileged nature of the communications in issue." Sanchez v. KPMG Peat Marwick, supra, at *5.
Request for Production No. 15
This Request seeks production of all documents identified in, related to, or which concern the answer to Interrogatory No. 22. Wells Fargo objects on the basis of relevance, and on the same bases which it asserted in objecting to Interrogatory No. 22.
The Court overrules the relevance objection. To the extent the Court ordered Wells Fargo to respond to Interrogatory No. 22 by identifying all documents which support its affirmative defenses, those documents must now be produced in response to this Request for Production. If Wells Fargo intends to assert a work product privilege to any such documents, it must provide an adequateVaughn index, as described above in the discussion of Request for Production No. 10. Request for Production No. 16
In this Request, Young asks for "all documents having anything to do with the repossession of the subject motor home." Wells Fargo objects on grounds of relevance.
The Court has already ruled that events surrounding the repossession are relevant to the claims and defenses herein and therefore overrules the objection. Wells Fargo does not claim that the request is overly broad or unduly burdensome; however, referring back to its response to Interrogatory No. 19, the Court assumes that Wells Fargo means to assert either attorney-client or work product privilege, or both, with regard to any such documents. If this is the case, Wells Fargo must identify each document as to which it intends to assert a privilege and provide a Vaughn index, as described above in the discussion of Request for Production No. 10. For all non-privileged documents responsive to this Request, the Court grants the Motion to Compel.
Request for Production No. 18
In this Request, Young asks Wells Fargo to produce all documents, tapes and videotapes concerning the repossession, including those showing the repossession or the condition of the motor home, those concerning any surveillance conducted, and those concerning any inventory of the items in the motor home. Wells Fargo objects on grounds of relevance.
The Court has ruled that the events surrounding the repossession are relevant to this case, therefore documentation of the repossession itself and the condition of the motor home before, during and after the repossession is relevant as well. The Motion to Compel is granted with respect to Request for Production No. 18.
Request for Production No. 19
This Request seeks all documents identified in or related to the answer to Interrogatory No. 9. Wells Fargo objects on grounds of relevance and incorporates its objections to Interrogatory No. 9. The Court having sustained Wells Fargo's objections to this interrogatory, the Motion to Compel with respect to Request for Production No. 19 will also be denied.
Order
IT IS THEREFORE ORDERED that Gavin K. Young's Motion to Compel [Doc. 48] is granted in part and denied in part, as specified above. Wells Fargo is directed to provide the discovery as ordered above on or before November 23, 2004.