The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
By notice of motion dated September 22, 2003 (Docket Item 263),
defendants Click Model Management and Next Management Company move for
sanctions pursuant to Rules 26, 37(b) and 41(b) of the Federal Rules of
Civil Procedure for plaintiffs' failure to properly respond to
interrogatories.*fn1 For the reasons stated below, Click's and Next's
motion is granted in part and denied in part.
This is an anti-trust case which has been certified as a class action
in which plaintiffs allege that defendants have conspired to fix prices
in the modeling industry. The allegations and principal defenses are set
forth in the Opinion of the Honorable Harold Baer, Jr., United States District Judge, granting
in part and denying in part defendants' motion for summary judgment,
familiarity with which is assumed. Fears v. Wilhelmina Model Agency,
Inc., 02 Civ. 4911 (HB), 2004 WL 594396 (S.D.N.Y. Mar. 23, 2004).
The current disputes arise out of interrogatories served by Click and
Next in the Spring of 2003. Click served its First Set of Interrogatories
on the Merits on June 16, 20031 Plaintiffs failed to respond to these
interrogatories in a timely manner, and I issued an Order on July 22,
2003 finding that plaintiffs' unjustified failure to respond to the
interrogatories in a timely manner resulted in a waiver of all objections
and directing plaintiffs to respond to Click's interrogatories no later
than July 25, 2003 (Docket Item 188). The deadline was subsequently
extended by Judge Baer to July 30, 2003.
On July 30, 2003, plaintiffs served as interrogatory answers what can
best be characterized as an outline of their case. The document served on
July 30, 2003 did not, by any stretch of the imagination, constitute
answers to Click's specific interrogatories in conformity with Rule 33.
Accordingly, on August 14, 2003, I issued a sanction against plaintiffs
in the amount of Five Thousand Dollars ($5,000.00) for serving a patently
deficient interrogatory response (see Docket Item 198). Subsequent to their July 30, 2003 "answers", but before my August 14,
2003 Order, plaintiffs also served a document entitled "Plaintiffs'
Responses to Defendant Click Model Management Inc.'s First Set Of
Interrogatories Concerning The Merits", dated August 6, 2003 (Exhibit J
to the Affirmation of Olav A. Haazen, Esq., dated October 13, 2003
("Haazen Aff.")). Plaintiffs' August 6, 2003 interrogatory answers
responded to many of Click's interrogatories.
In addition to their August 6, 2003 interrogatory answers, plaintiffs
also served a document entitled "Supplemental Responses To Defendant
Click Model Management Inc.'s First Set Of Interrogatories Concerning The
Merits", dated September 4, 2003 (Exhibit 2 to the Declaration of Mark W.
Moody, Esq., dated September 19, 2003 ("Moody Decl.")). Notwithstanding
my Order dated July 22, 2003 which found that all of plaintiffs'
objections were waived, plaintiffs' September 4, 2003 supplemental
responses asserted objections to many of the interrogatories that
plaintiffs had answered in their August 6, 2003 interrogatory answers. In
addition, the September 4, 2003 supplemental responses did not indicate
on their face whether they were to be considered in conjunction with
plaintiffs' August 6, 2003 responses or whether they were intended to
substitute for plaintiffs' August 6, 2003 responses. The confusion concerning the status of the September 4, 2003
supplemental responses was compounded by some of the responses
themselves. For example, Click's Interrogatory No. 7 sought the identity
of individuals knowledgeable concerning the contacts of plaintiffs or
their representatives with law enforcement or other governmental agencies
with respect to this action or any of the conspiracies or causes of
action alleged in the pleadings. In their August 6, 2003 response,
plaintiffs idfentified Paul Verquil, Andrew Hayes, Olav Haazen, Christina
Lewicky, Jarrod Reich and G. Simone Chafik. In their September 4, 2003
supplemental responses, however, plaintiffs identified only Ms. Chafik.
Plaintiffs' September 4, 2003 supplemental responses nowhere explained
why the supplemental response contained only a sub-set of the information
previously provided in response to this interrogatory.
Finally, the confusion concerning the relationship between the August
6, 2003 and September 4, 2003 responses was further exacerbated by the
fact that plaintiffs' response to the present motion nowhere states that
the two sets of responses were intended to be considered in conjunction
with each other. Indeed, plaintiffs' written response to the pending
motion does not even cite the . . . August 6, 2003 interrogatory
responses as containing the information sought. Also at issue in this motion are Click's Third Set of Interrogatories
which was served on plaintiffs in mid-July, 2003. In September, 2003,
plaintiffs agreed to respond to these interrogatories "without objection"
(Moody Decl., Ex. 6), and plaintiffs served responses on or about
September 14, 2003 (Moody Decl. Ex. 7).
The issues concerning Next's interrogatories arise out of a similar
record. Next served interrogatories on plaintiffs on or about May 5, 2003
(Exhibit B to the Declaration of Robert J. Tolchin, Esq., dated September
22, 2003 ("Tolchin Decl.")). Plaintiffs served responses on or about June
9, 2003 in which they asserted a number of objections (Tolchin Decl. Ex.
C). After conducting a conference on July 7, 2003 during which
plaintiffs' responses to Next's interrogatories and other discovery issues
were discussed, I entered an Order on July 9, 2003 directing plaintiffs
to serve "complete answers to Next's interrogatories 1, 2, 3, 5, 6, 7,
8, 10, 11, 13, 14, 17 and 18 through 36 no later than July 25, 2003"
(Docket Item 183; Tolchin Decl., Ex. G at 1-2). Judge Baer subsequently
extended the due date for the interrogatory responses to July 31, 2003.
As was the case with Click's interrogatories, plaintiffs did not serve
interrogatory answers on July 31, 2003. Rather, with respect to Next's
interrogatories, plaintiffs relied on the same outline that they served
in response to Click's interrogatories. On August 6, 2003, plaintiffs served responses to
the specific interrogatories identified in my July 9, 2003 Order (Tolchin
Decl., Ex. J). Plaintiffs also served supplemental responses to Next's
interrogatories on September 4, 2003 (Tolchin Decl., Ex. 0).
As discussed in more detail below, Click and Next are correct in their
contention that plaintiffs have failed to answer sufficiently a
substantial number of the interrogatories they had previously been
ordered to answer and that sanctions pursuant to Fed.R.Civ.P. 37(b) are
Plaintiffs' approach to Click's motion concerning Click's First Set of
Interrogatories has caused both Click's counsel and the Court to waste a
substantial amount of time for no reason whatsoever. Click's motion was
directed to Plaintiffs' September 4, 2003 Supplemental Responses. It was
not until oral argument, on April 12, 2004, that plaintiffs first claimed
that the interrogatories were answered in their August 6, 2003 responses.
Accordingly, the Court wasted time by considering the September 4, 2003
supplemental responses without the benefit of consideration of the August
6, 2003 responses, and Click's counsel was blind-sided by new arguments
made for the first time at oral argument. Plaintiffs' counsel has offered
no explanation whatsoever for their conduct except to claim that their firm was busy
handling other matters and that their response to the motion was not what
it should have been. Plaintiffs' omission here is not a trivial one. In a
number of instances, plaintiffs' August 6, 2003 responses contain
substantive answers to interrogatories that plaintiffs had been ordered
to answer (see, e.g., Interrogatory 11). Plaintiffs' September 4, 2003
supplemental responses contain objections to these same interrogatories
without any reference to the fact that the interrogatories had been
answered a month earlier (see, e.g., Interrogatory 11). This "shell game"
response to a discovery motion in which the Court and counsel are
compelled to guess as to which discovery response is operative cannot be
explained, defended or condoned. I now turn to the specific interrogatory
responses to which Click and Next have objected.
Plaintiffs' Responses To Click's First Set of
Interrogatory 1. The answer to this interrogatory is sufficient.
Interrogatories 2, 4, 6 and 10. These interrogatories seek
identification of witnesses with knowledge of certain events relevant to
the action. Although plaintiffs' responses identify a handful of
individuals by name, the responses also refer to other discovery
responses in such a manner that the net effect of the response is to identify almost every individual associated with the
defendants whose name has been mentioned in the lawsuit or in documents
produced by defendants and third parties. Such a response, which cannot
possibly be accurate, merely frustrates discovery. Accordingly, no later
than May 14, 2004, plaintiffs are directed to serve supplemental
responses to these interrogatories which identify by name individuals
with knowledge of the facts set forth in each `interrogatory.
Interrogatory 5.*fn2 Plaintiffs have taken the peculiar course of
responding to this interrogatory in their August 6, 2003 responses, but
objecting in their September 4, 2003 supplemental responses.
Nevertheless, the answers set forth in plaintiffs' August 6, 2003
responses are adequate.
Interrogatory 7. As noted above, this interrogatory seeks the
identification of individuals with knowledge of plaintiffs' or
plaintiffs' representatives' contacts with law enforcement or other
governmental officials concerning this litigation or any of the
conspiracies alleged in this litigation. As also noted above, the August
6, 2003 response identifies six names, while the September 4, 2003
supplemental response identifies only one of those six names. Responding
to the interrogatory in this manner is misleading and leaves Click to
guess whether the accurate response consists of the six names first provided or the
single name subsequently provided. Plaintiffs' counsel has proffered no
valid explanation for these inconsistent responses other than an
inability to give the interrogatories the attention they deserve due to
the press of other business. Plaintiffs are directed to serve an honest
and complete response to this interrogatory no later than May 14, 2004.
Interrogatory 8. This interrogatory seeks identification of documents
that identify "the individual or witness in response to Interrogatory
#7." Plaintiffs have responded by identifying a sign-in log maintained in
the building in which the New York City Department of Consumer Affairs is
located. Given the inartful nature of the interrogatory, I conclude, on
reflection, that the answer is sufficient. Read literally, the
interrogatory could be construed as seeking identification of every
document on which the individuals listed in response to Interrogatory 7
are named. Since ...