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FEARS v. WILHELMINA MODEL AGENCY

May 4, 2004.

CAROLYN FEARS, et al., Plaintiffs, -against- WILHELMINA MODEL AGENCY, INC., et al., Defendants


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 appropriate.

 Click's Interrogatories

  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 Interrogatories
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 ...


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