Opinion
Civ. No. 05-427 WJ/ACT.
August 22, 2006
ORDER
THIS MATTER comes before the Court upon Plaintiff's Second Opposed Motion to Compel Discovery and for Sanctions filed June 19, 2006. [Docket No. 69.] The Court has carefully reviewed the pleadings and exhibits submitted by the parties including the Sur-reply by the Defendant. The Court did not find the Sur-reply helpful and was disappointed with the ongoing and unnecessary characterization of Plaintiff's position and pleadings as "fallacious," "misleading and wrong," "defamatory," "rank hearsay," "ludicrous," "feeble at best," "bizarre," etc. These kind of personal attacks are inappropriate and will not be sanctioned by this Court. Counsel are admonished for not making more of a concerted effort to confer in an effort to resolve the dispute in question without the necessity of the Court's intervention. The Court directs counsel to Fed.R.Civ.P. 37(a)(1)(B) and to the "Creed of Professionalism of the New Mexico Bench and Bar" on page 156 Bench and Bar Directory, 2006-2007 (adopted by the U.S. District Court for the District of New Mexico in D.N. M.LR-Civ 83.9). Pursuant to the Creed lawyers in this District should "be courteous and civil, both in oral and written communications," "agree to reasonable . . . waivers of formalities when legitimate interests of [the] client will not be adversely affected;" should "not use . . . delay tactics . . . to harass the opposing party or their counsel;" and should "comply with reasonable discovery requests." Although counsel for Plaintiff may not have consulted with counsel for Defendant before filing this Motion, it is undisputed that counsel for Plaintiff has attempted by formal discovery (Interrogatories and Request for Production, Amended Request for Production and Second Amended Request for Production) to obtain the document in question and had informally discussed production of the document in question with counsel for Defendant before filing this Motion. Affidavit, Hannah Best, Plaintiff's Reply. The Court is not impressed with Defendant's argument that it did not know what document was being referred to by Plaintiff or that the requests were so narrowly drawn as not to require production of the document in question. It is clear to the Court that the Defendant has been playing "hide the ball" with respect to the document in question. Therefore, the Court will excuse the failure of counsel for the Plaintiff to engage in what clearly would have been unfruitful additional conversations with counsel for Defendant. If counsel for the Defendant truly wanted to avoid having to respond to this Motion they could have initiated efforts to resolve this dispute informally after the Motion was filed As discussed below, had counsel for the Defendant complied with the spirit and intent of the Federal Rules of Civil Procedure, the Orders of this Court [Docket Nos. 10 and 30], and the Creed of Professionalism, the document(s) at issue should have been produced to the Plaintiff without the necessity of this Motion.
Plaintiff makes the following allegations relevant to this Motion. Plaintiff was terminated in December of 2004 based on an investigation into his activities during 2000 and 2001 while he was Acting Education Line Officer at Fort Apache in Arizona. During that time Plaintiff consulted an associate lawyer in the Albuquerque Solicitor's Office, Dori Richards ("Richards"), regarding the problems at Ft. Apache. Defendant does not dispute Plaintiff's assertion that he was seeking legal advice from Richards.
In her declaration, attached to Defendant's Response, Richards states:
"I provided a memorandum regarding any legal advice I provided to Mr. Young relevant to three listed questions relative to actions Mr. Young took while the Acting Education Line Officer at the Fort Apache Agency. The Memorandum was provided to Ms. Charette [assistant Solicitor for Personnel, Division of General Law] on July 27, 2004."
Response, Exhibit 1.
Thus, the record is clear that Richards authored a memorandum concerning the issues in this lawsuit. Richards also acknowledges discussing the Memorandum and providing a copy of it to counsel for Defendant. Motion, Exhibit 3. At least one other witness associated with the Defendant, Mike Olsen, who apparently reviewed and signed the proposed removal decision, acknowledged that he had been shown by counsel for Defendant a "statement of facts regarding Rodney Young's case" submitted by Richards two months before his deposition which would have been in March of 2006. Motion, Exhbit 5.
Plaintiff's First Interrogatory No. 24 and Plaintiff's First Request for Production of Documents No. 18 asks for the following:
" Interrogatory No. 24: List every person who has given any statement to Defendant or to any agency related to this case, including but not limited to the EEOC or the MSPB, and state whether the statement is oral, written, or otherwise recorded."
"Request for Production No. 18: All documents related to, identified, or described in your answer to Interrogatory No. 24."
Defendant responded with boilerplate objections including the attorney-client privilege and the attorney work product doctrine. However, Defendant failed to comply with Federal Rule of Civil Procedure 26(b)(5) which requires the objecting party to "describe the nature of the documents, communications, or things not produced . . . in a manner that, without revealing information itself privileged or protected, will enable [the] other party[y] to assess the applicability of the privilege or protection." The Advisory Committee notes state that "[t]o withhold materials without [providing notice as described in Rule 26(b)(5)] is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege. . . ."
Plaintiff filed a First Motion to Compel Discovery and For Sanctions. [Docket No. 20.] Defendant failed to respond and the Court ordered the Plaintiff to fully respond to Plaintiff's First Interrogatories and Plaintiff's First Request for Production. [Order, Docket No. 30]. In not producing the document at issue, Defendant failed to comply with the Court's Order to fully respond to Interrogatory No. 24 and Request for Production No. 18.
Plaintiff's Second Request for Production, No. 20 states:
"Request for Production No. 20: Please produce Dori Richard's Statement of Facts which she prepared in 2003 regarding Rodney Young at the request of the Inspector General and submitted though the Washington, D.C. Solicitor's Office."
Defendant responded that she "does not have it its possession, custody or control any documents responsive to this request." (emphasis added.) This response is disingenous at best. Defendant claims that this request is "so restrictive that it does not require production of any other documents concerning the Plaintiff that may have been prepared by Ms. Richards." Response, p. 6. Yet in response to an essentially identical request, Plaintiff's Amended Second Request for Production of Documents, again requesting "Dori Richards" Statement of Facts, Memorandum, Report or otherwise characterized document . . . prepared in 2003 regarding Rodney Young . . .", (emphasis added) Defendant does not deny the existence of the document but rather raises objections regarding the discovery deadline, attorney client work product and the deliberative process privilege. These objections will be discussed below.
Plaintiff served a First Amended Notice to Take Deposition Duces Tecum of Richards that requested Richards produce at her deposition "the Statement of Facts she prepared in 2003 regarding Rodney Young at the request of the Inspector General and submitted through the Washington D.C. Solicitor's Office." Richards and counsel for Defendant assert that she was under no obligation to produce this document because she was not a party and Plaintiff did not serve Richards with a valid subpoena pursuant to Fed.R.Civ.P. 45. Counsel for Plaintiff asserts, inter alia, that previous counsel for Defendant agreed to produce Richards without a subpoena and had discussed producing the document in question if it did not fall within the attorney work product doctrine. Counsel for Defendant do not claim in addressing this issue that the document in question is attorney work product. Response, p. 5-6. The Court also finds it curious that Defendant would raise the technical requirement of a Rule 45 subpoena regarding the production of documents by a non-party, but apparently were willing to waive the requirements of Rule 45 regarding appearance at a deposition and a witness fee for a non-party.
In Plaintiff's Amended Second Request for Production No. 20 Plaintiff again asked for this document and described it in various ways so as to avoid Defendant's narrow interpretation of his previous request.
Plaintiff's Amended Second Request for Production, No. 20 states::
"Please produce Dori Richard's Statement of Facts, Memorandum, Report, or otherwise characterized documents which she prepared in 2003 regarding Rodney Young at the request of the Washington D.C. Solicitor's Office in response to a request by the Inspector General." (emphasis added.)
Defendant asserts in its Response that this Motion to compel is premature because a response was not yet due. Response, p. 7. In Defendant's Sur-reply she states that she did not know what document the Plaintiff was referring to until it was described on page 3, paragraph 4 of Plaintiff's Reply as "the 2004 memorandum." This response is simply not consistent with the evidence presented to the Court, let alone Defendant's objection to Plaintiff's Amended Second Request for Production of Documents, Request No. 20, which asks for "Dori Richard's Statement of Facts, Memorandum, Report or otherwise characterized document which she prepared in 2003" as being protected by the "deliberative process" or "attorney work product." It is obvious to the Court that the Defendant knew all along what document Plaintiff was seeking and Defendant has simply been relying on inartfully drafted requests for production and a narrow interpretation of the Rules of Civil Procedure to play "hide the ball" as long as possible. In the Court's view, the document in question, the "2004 Memorandum" referred to by Richards in her declaration (in which she acknowledges giving Plaintiff legal advice regarding the underlying issue in this lawsuit) should have been produced as part of Defendant's Initial Disclosures pursuant to Fed.R.Civ.P. 26(a)(1) as ordered by the Court in its Initial Scheduling Order [Docket No. 10.] or certainly in response to Plaintiff's First or Second Request for Production.
Furthermore, any reliance by the Defendant on a privilege is misplaced. In Defendant's Response to Plaintiff's Second Amended Request for Production, No. 20, Defendant asserted that production was protected under the work product doctrine and the deliberative process privilege. Defendant has waived any assertion of privilege or protection.
The Court assumes, but does not decide, whether the document is protected under the work product doctrine.
As discussed above, the Court overruled any objections and ordered Defendant to fully respond to Plaintiff's First Interrogatories and Plaintiff's First Request for Production, including Interrogatory No. 24 and Request for Production No. 18. Had the Defendant identified the document in question when it initially respond and objected to Interrogatory No. 24 and Request for Production No. 18 as required by Fed.R.Civ.P. 26(b)(5) or complied with this Court's Order requiring a full response to Plaintiff's First Interrogatories and Plaintiff's First Request for Production of Documents, Plaintiff would not have had to file subsequent requests for production or this Motion to Compel.
In addition, the Court finds that the document at issue falls within Plaintiff's Second Request for Production of Documents, No. 20. In response to that request, Defendant did not assert any objection to production. Rather, Defendant said she did not have "any documents responsive to this request within her possession, custody or control." Although the request refers to the year 2003 rather than 2004, it is clear from the request what documents Plaintiff is seeking. As noted above, Defendant did not have a problem objecting to a similar request in Plaintiff's Amended Second Request for Production of Documents which also referred to the year 2003. A party that fails to timely object to a request for production waives the right to contest the discovery request absent a showing of good cause for an untimely objection. Fed.R.Civ.P. 34(b); Advisory Committee notes, 1970 Amendments). No good cause has been shown to the Court, nor does the Court believe the Defendant can at her option rely on a narrow or verbatim interpretation of the request when it is obvious what document is being requested.
Defendant also asserted the deliberative process privilege in response to Plaintiff's Second Amended Request for Production No. 20. As discussed above, Defendant has waived this privilege. Moreover, the Court finds that Defendant has not carried its burden showing that the document is protected under the deliberative process privilege. Center for Biological Diversity v. Norton, 336 F. Supp. 2d 1149, 1153-4 (D. NM. 2004) citing Coastal States Gas Corp. v. Dep't. of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) (The burden is on the agency to show that the document in question is both part of the deliberative process and pre-decisional.) A pre-decisional document is one prepared "to assist an agency decisionmaker in arriving at his decision . . . and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Id. at 1153, citing Formaldehyde Inst. v. Dep't. of Health and Human Services, 889 F.2d 1118, 1122, (D.C. Cir. 1989). A pre-decisional document is part of the deliberative process if it relates to government decision-making and its disclosure to the public "would expose an agency's decision making process in such a way to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Id., Id. at 1122.
In asserting the privilege, Defendant states:
"The Memorandum prepared by Ms. Richards was done so at the request of Debra Charette, Assistant Solicitor for Personnel, Division of General Law. The Memorandum was prepared to assist Ms. Charette and the DOI to reach a decision regarding the appropriate disciplinary action to take against the Plaintiff based on the findings of the IG investigator."
Defendant has not shown that the documents "reflect the personal opinions of the writer rather than the policy of the agency" or that disclosure "would expose an agency's decisionmaking process." Thus, Defendant has not carried its burden.
For all the foregoing reasons, Defendant will produce the 2004 Memorandum that Richards authored within ten (10) working days of the entry of this Order. Moreover, if there are any other documents that Richards has authored regarding her conversation(s) and/or legal advice to Mr. Young while he was Acting Education Line Officer while at Ft. Apache, those documents must also be produced within ten (10) working days of the entry of this Order.
IT IS THEREFORE ORDERED that Plaintiff's Second Opposed Motion to Compel Discovery and for Sanctions is granted and any documents authored by Dori Richards regarding the Plaintiff while he was Acting Education Line Office at Ft. Apache will be produced within ten (10) working days of the entry of this Order.
IT IS FURTHER ORDERED that Plaintiff's request for sanctions is granted and Defendant will pay Plaintiff's attorney fees and costs associated with the filing of this Motion. Plaintiff must submit an affidavit outlining his costs and fees within fifteen (15) working days of the entry of this Order. Defendant may respond within five (5) working days of service of Plaintiff's affidavit.