Opinion
No. CIV 04-286 MV/LFG.
November 8, 2004
ORDER ON GAVIN K. YOUNG'S MOTION TO COMPEL DISCOVERY FROM ROCKY MOUNTAIN R.V. WORLD, INC.
THIS MATTER comes before the Court on the Motion to Compel Complete Answers to Interrogatories and Responses to Request for Production from Rocky Mountain R.V. World, Inc. [Doc. 41], filed by Gavin K. Young ("Young") on August 9, 2004. Rocky Mountain R.V. World, Inc. ("RMRV"), Counter-Defendant in this action, filed its Response and an errata notice [Docs. 52 and 54], and Young filed his Reply [Doc. 56]. The motion is now 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.
Factual and Procedural Background
Young purchased a Winnebago motor home from RMRV on August 30, 2002. He states that at the time of the sale, he informed the RMRV salesman that he intended to use the motor home as a residence for himself and his family while he traveled around the country to start a new business, and that the salesman assured him the motor home was fit for that purpose.However, Young contends that in the first five months following the purchase he was forced to bring the motor home back to RMRV for repairs on over 60 defects. He asserts that some of these defects were repaired but many remained unresolved, although RMRV continued to claim that the motor home was fully repaired. Young says he therefore had the motor home examined by expert James Hughes, who reported significant problems with the motor home which made it unsafe and substantially impaired its performance — problems including defects in alignment and steering which caused the motor home to veer from side to side, unacceptable noise levels inside the motor home, and a light switch too hot to touch.
Young contends that the motor home had 34 defects that have been repaired since the time of purchase, and an additional 26 problems that remained unresolved up to the time of repossession. He states also that documents produced during discovery reveal that, in a seven month period prior to his purchase of the home, it underwent numerous repairs.
RMRV generally denies Young's allegations that the motor home was defective and unfit for its intended purpose and that RMRV failed to honor Young's revocation of acceptance. RMRV asserts that it performed all needed repairs in a workmanlike manner and that Young refused to allow RMRV to perform any additional warranty work for the alleged necessary repairs.
Young purchased the motor home from RMRV under a Retail Installment Contract and Security Agreement which was assigned to Wells Fargo for financing. On August 26, 2003, Wells Fargo filed an action in New Mexico state court for enforcement of the contract, alleging 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.
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. Young denied any default and claimed 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, it is subject to all claims and defenses which Young could assert against RMRV and Winnebago Industries ("Winnebago"), the seller and 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 it in several times for repairs to "multiple problems, many of which never fixed to his satisfaction. 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.
On January 29, 2004, the state court judge granted the stipulated motion of Young and Wells Fargo, directing that RMRV, Winnebago, and Spartan Motor Chassis, Inc. ("Spartan") be joined as defendants under Young's counterclaim. On March 12, 2004, RMRV and other defendants filed a Notice of Removal to federal court based on Young's claim under the Magnuson-Moss Warranty Act, a federal statute. Prior to removal, Wells Fargo physically repossessed the motor home. Young asserts that the repossession was unlawfully done, but Wells Fargo retains possession of the motor home.
Young served discovery requests on RMRV in this action, including the Interrogatories and Requests for Production at issue in this motion. He contends that RMRV did not adequately respond to these requests, and he brings this Motion to Compel complete answers to Interrogatory Nos. 2-6, 8, 10-15, 17, 20, and 22-26; and to compel production of items requested in Request for Production Nos. 1, 3, 5, 16, 19, and 27-29.
In his Motion, Young refers to the last group as "Interrogatories 23-26" [Doc. 41, at ¶ 2]. His briefing makes clear, however, that he intends to seek an order compelling a response to Interrogatory No. 22 as well.
Standards for Discovery
Rule 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 procedures set forth in the Rules seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information, Simpson v. University of Colorado, 220 F.R.D. 354, 358 (D. Colo. 2004), as "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 392 U.S. 495, 507, 65 S. Ct. 385, 392 (1947).
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., No. Civ.A. 01-02390-CM, 2002 WL 1796045, at *2 (D. Kan. July 31, 2002).
Discussion: Particular Discovery Requests
Interrogatory No. 2
In Interrogatory No. 2, Young asks RMRV to identify writings, including every bulletin, advisory, mailgram, notice and document which were utilized by its employees in working on each repair activity. RMRV objects on grounds the Interrogatory is vague and ambiguous and, without waiving the objection, answers that it is not aware of any such documents.
Young defines "activity," as used in his discovery requests, to mean "all work, repairs, service, maintenance, inspections, tests, and examinations performed . . . upon the motor home [emphasis in original]."
Interrogatories need not be phrased with technical precision, but they should give a reasonably clear indication of the information sought, in order to escape the "vague and ambiguous" charge.
The expressions complained of do not seem unduly vague or indefinite under the circumstances. Plaintiff is asking for information largely in the exclusive possession of defendant. It knows only the general nature and type of information which it wants, not the exact answer which it is to receive. It cannot be required to phrase its inquiries with mathematical precision. The phrases used in some of these interrogatories may be somewhat general, but they appear to be such as to give defendant a reasonably clear indication of the information to be included in its answers.Banana Service Co. v. United Fruit Co., 15 F.R.D. 106, 109 (D. Mass. 1953).
An objection on grounds of vagueness may be sustained if the responding party can show that the interrogatory contains terms that are indefinite, or subjective in nature. See, e.g., Heritage Furniture, Inc. v. American Heritage Inc., 28 F.R.D. 319 (D. Conn. 1961) (the phrase "early American furniture" is too indefinite to require a response to an interrogatory using the phrase); and Struthers Scientific Int'l Corp. v. General Foods Corp., 45 F.R.D. 375 (S.D. Tex. 1968) (interrogatory asking whether coffee extract would suffer "adverse flavor effects" under certain conditions was too subjective).
The request for information in Interrogatory No. 2 is not so indefinite that it cannot be answered, nor does it involve a matter of opinion. Young simply asks RMRV to identify the writings, if any, which its employees relied on in performing repairs to the motor home. Young even details the types of documents it seeks. The Court overrules the objection for vagueness and ambiguity.
To the extent RMRV supplied a response to this Interrogatory, that answer it is "not aware of any such documents" is not sufficient. A corporation can not avoid answering an interrogatory by an allegation of 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 (E.D. Pa. 1977).
Interrogatories served on a corporate party must be answered by an officer or agent of the corporation who shall furnish "such information as is available" to the corporation, Fed.R.Civ.P. 33(a); United States v. Kordel, 397 U.S. 1, 8, 90 S. Ct. 763, 767 (1970), and a corporation cannot avoid answering a discovery request by an allegation of ignorance if it can obtain the information from sources under its control. Westinghouse Credit Corp. v. Mountain States Mining Milling Co., 37 F.R.D. 348, 349 (D. Colo. 1965).
This means that a corporate officer or agent designated to answer interrogatories is required to secure all information available to the corporation. United States v. Kordel, supra, 397 U.S. at 8. If the designated person lacks personal knowledge of the subject of a discovery request, he or she must consult with other members of the organization who are in possession of the information sought and must "furnish relevant information from whatever sources are available to it." Skelton Co. v. Goldsmith, 49 F.R.D. 128, 130 (S.D.N.Y. 1969).
[T]he Federal Rules of Civil Procedure do not contemplate that the corporate officer or employee responding to the interrogatories have first-hand personal knowledge of all the facts reflected in the answers. This would obviously be impossible in most corporations since no one officer or employee has first-hand personal knowledge of what all the other officers and employees do in the day-to-day conduct of a corporation's business. The rules require that the corporation select an officer or employee to gather and obtain from books, records, other officers or employees, or other sources, the information necessary to answer the interrogatories and sign them on behalf of the corporation not himself.Casson Constr. Co. v. Armco Steel Corp., 91 F.R.D. 376, 382 (D. Kan. 1980). See also, Weddington v. Consolidated Rail Corp., 101 F.R.D. 71, 74 (N.D. Ind. 1984) (corporation must answer interrogatories with the "composite knowledge" of the entity);United States v. 58.16 Acres of Land, 66 F.R.D. 570, (E.D. Ill. 1975).
The Motion to Compel with respect to Interrogatory No. 2 is granted. RMRV is directed to make proper inquiry of its employees and respond fully to this Interrogatory, 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. 3
In this Interrogatory, Young asks RMRV to identify and describe all repair activity performed on the motor home before and after Young purchased it. In response, RMRV refers Young to 136 pages of documents attached to its answers.
Young does not explain how this response is inadequate or evasive. The only argument he presents in his memorandum is the assertion that RMRV should be compelled to consult with its employees to ensure that this interrogatory is fully answered. This is indeed true, but there is no indication that the interrogatory was not fully answered. The Court does not have before the 136 pages of documents referred to in the response, and Young has not pointed to any indication in this group of documents that would demonstrate that something is missing. Young does not support his request that the Court compel disclosure beyond what has already been produced.
The Motion to Compel is denied with respect to Interrogatory No. 3.
Interrogatory No. 4
In this Interrogatory, Young asks that RMRV identify "each bulletin, advisory, mailgram, memorandum, letter, notice and/or document you have" relating to the motor home or motor homes of the same style, model and year, involving 17 defects which Young lists in an exhibit [Ex. H to Doc. 42]. RMRV objects that the interrogatory is vague and ambiguous. As in its response to Interrogatory No. 2, RMRV answers, without waiving its objection, that it is not aware of any such documents.
The Court finds that the interrogatory is overly broad. It is not even limited to the specific make, model and year of Young's home, but would include "homes of the same style." That description is so broad and encompassing that virtually every motor home manufactured nation-wide is covered. The Court sustains Well Fargo's objection but will require production of documents in Well Fargo's possession that relate to Young's home and the defects in his home.
Interrogatory No. 5
Young's Interrogatory No. 5 asked RMRV to identify all persons who were involved with acquisition, repossession, repair activity, alteration, sale or financing of the motor home and, "For each person describe that person's role and involvement." [Doc. 56, Ex. J].
RMRV did not object to this interrogatory. In its response it listed five persons, giving each person's job title or function, without giving a description of the person's "role and involvement" with Young, as was requested in the interrogatory. Young points out that RMRV mistyped the interrogatory in providing its answers; RMRV's version reads, "For each person described, that person's role and involvement."
The Court rejects RMRV's contention that it was improper for Young to ask for the "role and involvement," since "the role each person played is evidenced by their job description." This request is not improper; it asks for easily-obtainable information which is calculated to lead to discovery of admissible evidence relevant to Young's claims of warranty breaches and statutory violations. In addition, it is apparent that any mechanic who worked on Young's motor home falls within the description of persons involved in repair activity, and these individuals must be identified.
The Motion to Compel is granted with respect to Interrogatory No. 5. RMRV is directed to provide complete descriptions of the role and involvement of each person listed in its response to this interrogatory. Interrogatory No. 6
Young provides a list [ see, Doc. 42, Ex. H] of 17 defects which he claims plagued the motor home he purchased from RMRV. He asks RMRV to state in detail, for each such defect, the efforts RMRV made to determine the origin or cause, RMRV's opinion as to what the cause was, and the basis for each opinion. RMRV does not object to this question. In its response, it states, "Those conditions which Young brought to the attention of RMRV were addressed in invoices and work orders," attached to its answers.
A party may not answer an interrogatory by simply referring to a document or other response, Willner v. University of Kansas, 848 F.2d 1023, 1029 (10th Cir. 1988); Pilling v. General Motors Corp., 45 F.R.D. 366, 369 (D. Utah 1968). Accordingly, the Court concludes that RMRV's response is inadequate.
However, the interrogatory requires disclosures of RMRV's contentions to the extent it calls upon RMRV to disclose the cause of each defect and the basis for each opinion. Contention interrogatories are only proper at the conclusion of discovery. Fed.R.Civ.P. 33(c); Everett v. USAir Group, Inc., 65 F.R.D. 1 (D.D.C. 1995). The Court will not require a further response to Young's "contention" portion of the interrogatory.
The Motion to Compel with respect to Interrogatory No. 6 is granted in part and denied in part.
Interrogatory No. 8
In this Interrogatory, Young asks RMRV to state whether it contends that the motor home has always performed without defects or as warranted and, if not, to state the conditions creating the defective or out-of-warranty performance, and the reasons for such performance. RMRV answered that it last inspected and repaired the motor home on January 18, 2003 and that the motor home performed without defects and as intended at that time. RMRV states it has "no personal knowledge" of the current condition of the motor home.
The Court finds that the response is adequate and that no further response is necessary.
Interrogatory No. 10
Young asks in this Interrogatory that RMRV identify all oral or written communications "relating to Young and/or his motor home," between RMRV and each of the other parties in the suit, giving certain particulars for each communication. By way of response, RMRV directed Young to "See documents produced in response to RFP no. 16, Plaintiff's Rule 26 Disclosures, and RMRV's list of exhibits on its portion of the IPTR [ i.e., Initial Pretrial Report]."
As noted above, it is generally improper to answer an interrogatory by simply referring the requesting party to other pleadings and documents. Willner v. University of Kansas, supra. The fact that Young cannot locate, within RMRV's disclosures, some of the documents listed in the IPTR, exemplifies the problems created by this form of response. Furthermore, Young should not be forced to hunt for the information in a haystack of disclosures.
The Motion to Compel is granted in part with respect to Interrogatory No. 10. RMRV is directed to specifically identify each written communication as described in the interrogatory. The Court recognizes the general impossibility of disclosing each and every communication relating to the motor home and therefore will not require it.
Interrogatory No. 11
In this Interrogatory, Young asks RMRV to identify each person who had possession, custody or control of the motor home from the time it first came into RMRV's possession and to give certain particulars as to each such person. RMRV did not object. It responded by giving the name of Gavin Young and stating that on December 11, 2002, Albuquerque Freightliner had possession of the motor home for alignment work.
Young asserts that this answer is insufficient because it is apparent, for instance, that one or more individuals had custody of the motor home before it was sold to Young and that someone at RMRV must have had custody of the vehicle during the times it was repaired. The Court rejects Young's contentions and determines that RMRV has adequately answered this interrogatory.
The Motion to Compel is denied.
Interrogatory No. 12
Young asks RMRV to identify all people consulted in answering these interrogatories, specifying the interrogatory to which each person contributed. RMRV lists only one person, its counsel of record J. Edward Hollington. Young objects that this answer is incomplete, contending that RMRV could not possibly answer the interrogatories fully without consulting some of its employees.
Again, the Court determines that the response is adequate. The Motion to Compel with respect to Interrogatory No. 12 is denied.
Interrogatory No. 13
In this Interrogatory, Young asks RMRV to consult the attached report of its expert James G. Hughes and to designate each opinion and conclusion in the report with which RMRV disagrees, giving the basis of its disagreement and identifying each document and individual who will support RMRV's position.
RMRV objects on grounds the Hughes report does not comply with the requirements for expert reports set forth in Fed.R.Civ.P. 26(a)(2)(B), and for other reasons. Without waiving the objection, RMRV refers Young to documents produced in response to Interrogatory No. 3 and RFP No. 16, and to its initial disclosures and the IPTR. Young contends that the report need not comply with the requirements of Rule 26(a)(2)(B) in order to be a proper subject of discovery inquiry. The Court disagrees.
Rule 26(a)(2)(B) requires that, in addition to initial disclosures under 26(a)(1), each party shall disclose the identity of any person who may be used at trial to present expert testimony and, for each such witness, to provide an expert report prepared and signed by the witness. This report must include: (1) a complete statement of all opinions to be expressed and the basis and reasons therefor; (2) the data or other information considered by the witness in forming the opinions; (3) any exhibits to be used as a summary or in support of the opinions; (4) the qualifications of the witness, including a publication list for the past ten years; (5) the compensation to be paid for the study and testimony; and (6) a listing of other cases in which the witness has testified as an expert in the past four years. The report prepared by Mr. Hughes (attached as Ex. E to Doc. 42) does not comply with these requirements.
Both parties mistakenly refer to this Rule as "26(2)(B)."
As Young points out, expert disclosures are not yet due in this case; the deadline for submission is November 22, 2004. [Doc. 50]. The Court finds that it is premature at this time for Young to present a preliminary and incomplete expert report and ask RMRV to take positions on it. The disclosure provisions of Rule 26(a)(2)(B) are mandatory and are intended to further the salutary purposes of the Civil Justice Reform Act, 28 U.S.C. § 471 et seq., which was enacted to ensure that cases move economically and expeditiously through the federal system. Expert reports as contemplated under the Rule are intended to fully alert opposing parties of the opinions that will be offered and the basis for each opinion to be expressed at trial. To allow Young to submit a preliminary report to RMRV and ask for its position, before the expert has made all necessary disclosures, would enable Young to send out a trial balloon to test its expert's opinions and conclusions. This is unfair to RMRV and runs counter to the spirit of Rule 26.
Rule 26 contemplates that a complete report be filed within the time constraints indicated by the court. The rule makes no provisions for "preliminary reports" followed by "supplementary reports." Rather, Rule 26 requires production of a "detailed and complete report" with full disclosure of all opinions that will be offered at the time of trial, together with full disclosure of the basis for the opinions to be offered.Dan v. United States, No. Civ. 01-25 MCA/LFG, slip op. at 6,7 (D.N.M. Feb. 6, 2002). Once expert reports are submitted in compliance with Rule 26, the parties will have ample time under the scheduling order to engage in follow-up discovery.
The Motion to Compel is denied with respect to Interrogatory No. 13.
Interrogatory No. 14
Young asks RMRV to identify "the owners of all 2002 Freedom Winnebago Motor Homes who to your knowledge have complained about any or all of the conditions" noted in a list of defects (attached as Ex. H to Doc. 42). RMRV objects to the interrogatory as ambiguous and overly broad. Without waiving the objection, RMRV states that it has no knowledge of any owners making such complaints.
Young does not address Interrogatory 14 in his briefing, except to argue that the question has not been fully answered and that RMRV should be compelled to consult with its employees and disclose whatever information they have which is responsive to the interrogatory.
To the extent the interrogatory asks RMRV to identify owners of "all 2002 Freedom Winnebago Motor Homes" who have made complaints, the Court agrees with RMRV that the interrogatory is overly broad. And although Young is correct that a corporation cannot simply answer "I don't know" in response to a discovery request but must make reasonable efforts to acquire the information by consulting its employees, the Court finds that RMRV's answer to this interrogatory is responsive to the question asked. Young asked for the identities of owners who, "to your knowledge" have complained about the listed defects. RMRV responded, over objection, that it "has no knowledge of any owners making such complaints." The Court presumes that RMRV did consult with its employees before providing this response. To the extent it did not, RMRV is directed to do so and supplement the response. Otherwise, the Motion to Compel with respect to Interrogatory No. 14 is denied.
Interrogatory No. 15
In this request, Young asks RMRV to state whether it believes Young was responsible for causing any of the motor home's problems and, if so, to state the basis for its opinion and to identify all documents and persons who will support each such opinion.
This is a contention interrogatory. While such interrogatories are proper at the close of discovery, they are not proper at the commencement of discovery. Fed.R.Civ.P. 33(c); Everett v. USAir Group, Inc., supra. The Court will not require a further response.
Interrogatory No. 17
Young asks RMRV in this Interrogatory to describe the factual basis supporting each of its affirmative defenses and to identify each document and each person supporting each such defense. RMRV objects on grounds this request is a contention interrogatory and premature at this stage of the litigation. It also objects on work product grounds.
As noted above in the discussion on Interrogatory No. 8, this is a relatively early stage in the discovery process, and contention interrogatories are generally more appropriate if served toward the end of that process. Everett v. USAir Group, Inc., supra. The Court will not require RMRV, at this point, to respond to the Interrogatory to the extent it asks RMRV to "describe the factual basis supporting each affirmative defense."
However, the Interrogatory also asks RMRV to identify all documents which RMRV will rely on to establish its affirmative defenses, and all persons who will support each such defense. 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"). Questions such as these, which seek 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); Everett v. USAir Group, Inc., supra, at 3.
The Motion to Compel with respect to Interrogatory No. 17 is therefore granted in part and denied in part, and RMRV is directed to answer fully the portion of this Interrogatory which asks it to identify those witnesses and documents supporting its affirmative defenses. In doing so, it may not simply refer to its initial disclosures and the Initial Pretrial Report.
Interrogatory No. 20
In this Interrogatory, Young asks RMRV to identify "all other persons with knowledge of any aspect of the transaction or course of dealing with Young," describing each such person's role and activities. RMRV does not object and responds by referring Young to its answer to Interrogatory No. 5, plus persons identified in RMRV's initial disclosures and the IPTR. RMRV also notes that it will supplement the answer as discovery continues.
Young complains that this response, which refers back to the response to Interrogatory No. 5, is inadequate for the same reasons the response to No. 5 was inadequate. The Court agrees. The request is proper, and in any event RMRV lodged no objection to it. RMRV must fully answer the interrogatory.
The Motion to Compel is granted with respect to Interrogatory No. 20. RMRV is directed to identify, and provide complete descriptions of the role and involvement of, each person who has knowledge of any aspect of the transactions or course of dealing with Young.
Interrogatories 22-26
To each of these Interrogatories, RMRV lodges the following objection: "RMRV objects as Young has submitted interrogatories in excess of 50, including discrete subparts, in violation of FRCP rule 33(a), D.N.M.LR-Civ. 26.5, and Provisional Discovery Plan incorporated as an order of the Court limiting parties to 50 interrogatories, including discrete subparts." In addition, RMRV objects to Interrogatory No. 22 on grounds of relevancy.
Fed.R.Civ.P. 33(a) provides that "any party may serve upon any other party written interrogatories, not exceeding 25 in number including all discrete subparts," although leave to serve additional interrogatories may be granted by the Court. The Court's local rules provide that a party wishing to serve interrogatories beyond those allowed in Rule 33 must file a motion setting forth the proposed interrogatories and explaining why they are necessary. D.N.M.LR-Civ. 26.5(b). In this case, the parties requested and were granted leave to serve 50 interrogatories on each other. See, Provisional Discovery Plan [Doc. 10], at ¶ 3.
Young argues that RMRV cannot simply decline to answer its last five interrogatories on grounds that, by RMRV's reckoning, Young has exceeded the 50-interrogatory allotment. Rather, Young contends, RMRV is obligated to proceed by way of a Motion for Protective Order and its failure to do so operates a waiver of this objection. Furthermore, Young asserts that he has not exceeded the 50-interrogatory limit as each of his subparts is "logically or factually subsumed within and necessarily related to the primary question."
The Court disagrees. At the Rule 16 scheduling conference, the Court specifically admonished the parties that the interrogatory limitation included subparts, and therefore counsel had to be cautious and circumspect in framing their interrogatories so that they did not exceed the numerical limitation. Indeed, the Court specifically instructed the parties that they need answer only the first 50 questions.
Here, the Court concludes that Young exceeded the numerical limitation without obtaining opposing party's or the Court's agreement.
The Court sustains RMRV's objections.
Request for Production No. 1
In this Request, Young asks RMRV to produce all documents relating to repair activity performed on the motor home since the date it was manufactured. RMRV did not object and answered by referring Young to the documents produced in response to Interrogatory No. 3.
Young's complaint about this answer is that he has knowledge that repairs were made to the motor home in January and December 2002, but no bills for or summaries of this work were produced in response to the Request. Young suggests that, if documentation of this work does exist within the 177 pages provided in response to Interrogatory No. 3, RMRV can comply with its discovery obligations by identifying specifically the page numbers corresponding to this documentation. Young also questions whether RMRV consulted with its employees in order to answer this RFP and asks that it be compelled to do so before answering.
In its Response brief, RMRV does not make the identification which Young requests but continues to assert that it has fully responded to all discovery requests. The Court cannot order RMRV to produce documentation which does not exist. However, the Court will order that RMRV specifically identify, by Bates numbers, all documents within the material produced in response to Interrogatory No. 3 which is also responsive to Request for Production No. 1. To this extent, the Motion to Compel is granted with respect to RFP No. 1.
Request for Production No. 3
In this Request, Young asks RMRV to produce "all bulletins, opinions, advisories, documents, mailgrams, and notices you have concerning or relating to the conditions listed" in a document which sets out alleged defects in the motor home (attached as Ex. H to Doc. 42). RMRV objects to the Request on grounds it is vague and ambiguous.
The Court overruled this same objection in connection with Interrogatory No. 4, to which this Request for Production relates, and will do so here as well for the same reasons. The Motion to Compel is granted with respect to RFP No. 3.
Request for Production No. 5
Young asks RMRV in this RFP to provide all documents which it intends to or may introduce as evidence at trial. RMRV responds that it has not yet determined the documents it will or may introduce at trial, but it refers Young to disclosures and production already made.
The Court finds nothing wrong with the response that RMRV has not yet determined which documents it will introduce at trial. The Court reminds all parties, however, that they have a continuing duty to supplement discovery as it becomes known or available. Fed.R.Civ.P. 26(e).
Young has a separate complaint, however, with regard to the answer to RFP No. 5. He states that not all of the documents identified in the IPTR have been produced, citing in particular RMRV documents 18, 19, 23, and 24, as listed in the IPTR. RMRV says that it told Young's counsel, prior to the time this motion was filed, to notify him if any of the documents listed in the IPTR were missing. He says that Young's counsel never responded to this offer, but "[r]egardless, RMRV continues to offer to provide these documents to Young if he has not received them." [Doc. 52, at 15]. This is all very well and good, but it would have saved judicial resources if RMRV had simply turned the documents over when it received Young's Memorandum.
Young has identified four documents which he says he did not receive. RMRV is directed to provide copies of those documents, as listed and described at pages 12-13 of Young's Memorandum in Support of this motion. To that extent, the Motion to Compel is granted with respect to RFP No. 5, and RMRV is reminded of its duty to supplement its answer to this RFP.
Request for Production No. 16
In this RFP, Young asks for all documents pertaining to the sale and financing of the motor home. He then provides a list of the sort of documents which would satisfy this request. RMRV did not object. It provided some documents in response and referred Young to other documents already produced.
Young's only complaint with this response is that RMRV again refers to the IPTR but has not produced all documents listed therein. The Court's order with respect to RFP No. 5 takes care of this complaint, and the Motion to Compel is therefore denied with respect to RFP No. 16.
Request for Production No. 19
In this RFP, Young asks RMRV to produce, for each repair attempted or completed on the motor home, each bulletin, advisory, mailgram, notice and document referred to in working on the repair. RMRV objects on grounds the request is vague and ambiguous.
For the reasons stated above in the discussion of Interrogatory No. 2, to which this RFP corresponds, the Court finds that the request is not vague or ambiguous. The Motion to Compel is granted with respect to RFP No. 19.
Request for Production No. 27
Request No. 27 asks RMRV to produce all documents identified in the response to Interrogatory No. 10, which asks RMRV to identify all oral or written communications between RMRV and each of the other parties in the suit which relate to Young and/or his motor home. RMRV does not object to the Request and refers Young to its responses to RFP Nos. 13, 14, and 15. Those three RFPs request all correspondence to and from Winnebago, Spartan, and Wells Fargo, the other three counter-defendants in this case.
Young did not complain about the material produced in response to RFP nos. 13-15, but he is apparently not satisfied with RMRV's response to this RFP for the same reasons he complains about the response to Interrogatory No. 10 — that is, he says that some of the material identified in the IPTR has not been produced. The Court's order with respect to RFP No. 5 takes care of this complaint, and the Motion to Compel is therefore denied with respect to RFP No. 27. Request for Production No. 28
Young seeks in this Request all documents identified in, or which support, RMRV's answer to Interrogatory No. 17. The Court sustained RMRV's objection to Interrogatory No. 17, to the extent it prematurely sought an answer to a contention interrogatory. However, the Court ordered RMRV to produce documents on which it will rely to establish its affirmative defenses and to identify all persons who will support each such defense, without simply referring Young to other documents or disclosures.
The Motion to Compel with respect to RFP No. 28 is denied insofar as it seeks material excluded by the Court's order with respect to Interrogatory No. 17. The Motion to Compel is granted with respect to documents on which RMRV will rely to establish its affirmative defenses, and any documents which identify persons who will support each such defense. For any documents to which RMRV asserts a work product privilege, an adequate Vaughn index must be provided.
Request for Production No. 29
In this RFP, Young requests all "policy manuals, procedures, rules, guidelines, directions, instructions and memos in effect in 2002" which address 12 specific subject matters. RMRV objects on grounds of vagueness and ambiguity, overbreadth, and relevance. Without waiving the objection, RMRV also states that if any documents responsive to the request are discovered, they will be produced "pursuant to supplementation or further order of this Court."
The Court agrees with Young that RMRV has not supported its contention that the RFP is vague or ambiguous, and the objection on this ground is overruled. However, RMRV also objects that the materials sought are not relevant to the claims and defenses asserted in this case, and that the request is overly broad.
Young's claims in this case include allegations that RMRV sold him a motor home which was defective, unsafe and unfit for its intended purposes. In his counterclaim, he alleges that RMRV breached its express and implied warranties that the motor home would perform as warranted and for its intended purpose, and that RMRV failed to make adequate repairs and misrepresented that the motor home was repaired, safe, and without defects. He further asserts that RMRV failed to honor his revocation of acceptance. He seeks compensatory and punitive damages. RMRV denies these allegations and asserts that it fully performed all necessary repairs in a workmanlike manner, and at all times advised Young that it was ready, willing and able to perform further warranty work but that Young refused to allow this.
Some of the material described in RFP No. 29 could conceivably be relevant to these claims and defenses. Young argues that policy manuals, rules, guidelines, and the like which bear on such subjects as customer complaints, purchase and sale of Winnebagos, financing of motor homes, performance requirements of RMRV and its employees, training and education of sales personnel, etc. could shed light on whether RMRV treated Young in a manner which violated its own rules and protocols and would therefore be relevant to his claim of Unfair Trade Practice and his request for punitive damages.
The Court finds this relevancy connection too tenuous in light of the extreme overbreadth of the Request. Young cannot justify his need for every policy manual, procedure, guideline, instruction or memo bearing on, for instance, the issue of "purchase and sale of winnebagos." This could include nearly every document in the files of the dealership that had anything to do with Winnebagos. Certainly something in that mass of materials might conceivably bear on the question whether a particular RMRV employee's actions violated Young's consumer rights. But discovery does not give litigants the right to rifle indiscriminately through the files of their opponents.
The Court sustains RMRV's objections. Request for Production No. 29 is overly broad, and the Motion to Compel will therefore be denied as to this Request.
Order
IT IS THEREFORE ORDERED that Gavin K. Young's Motion to Compel [Doc. 41] is granted in part and denied in part, as specified above. Rocky Mountain R.V. World, Inc. is directed to provide the discovery as ordered above on or before November 23, 2004.