The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendants Mary Ann Wehlage and Allegany County Society for the Prevention of Cruelty to Animals ("Allegany County SPCA")'s joint (collectively referred to as the "SPCA defendants" or as "movants")) further motion to compel plaintiffs to answer interrogatories and produce documents (Docket No. 204*fn1 ).
Previously, this Court granted the SPCA defendants motions for a protective order (Docket No. 161) and to compel documentary discovery from plaintiffs (Docket Nos. 165, 178; see also Docket No. 205, SPCA Defs. Atty. Decl. Ex. C (reproducing Docket No. 178 Order)), while denying plaintiffs' cross-motion to compel (Docket Nos. 169, 178). Recently, the Court granted in relevant part the SPCA defendants' motion to compel plaintiffs' depositions and other discovery (Docket No. 201). The latest Order scheduled those depositions to begin on December 4, 2006, and set the discovery deadline in this case for December 14, 2006 (Docket Nos. 201, 202). The present motion, the third seeking to compel (cf. Docket Nos. 165, 179, 204) and the sixth discovery motion overall from these movants (cf. Docket Nos. 161, 183, 165, 179, 204), appears to be a follow up from that earlier discovery motion practice.
This civil rights case arises from the seizure of plaintiffs' dairy cattle from their family farm in Allegany County, New York, upon the alleged direction of the SPCA defendants. Familiarity with the facts from prior Reports & Recommendations (Docket Nos. 38, 72, 117, 137) and Orders (Docket Nos. 178, 79, 95, 123, 130, 140, 201) is presumed.
The SPCA defendants continue to seek interrogatory answers and document production from plaintiffs. Movants seek to have plaintiffs verify their interrogatory answers and complete document production, namely documents describing their damages (Docket No. 205, SPCA Defs. Atty. Decl. ¶¶ 14, 16-17). Plaintiffs failed to produce requested documents because they asked about their "farm in Allegany," in which they claim they did not have a farm in Allegany, but in Scio (id. ¶ 15, Exs. E, I); when movants raised the issue, plaintiffs' counsel insisted upon a new request (id. ¶ 15). Interrogatory 5 asked plaintiffs to identify the reason why they believed movants were negligent or committed willful misconduct, but plaintiffs gave a vague answer about the proper procedure for investigating and removing cattle, and now movants seek a more definitive response (id. ¶ 18). Plaintiffs failed to describe the acts or events witnessed by each witness (id. ¶ 19, Ex. I). They failed to respond to four document requests seeking specificity, but the SPCA defendants contend that this Court's earlier Order denied plaintiffs all objections to their discovery demands (id. ¶ 20).
As with past discovery motions, the SPCA defendants also seek attorneys' fees for making this motion due to plaintiffs' pattern of default and ignoring defense counsel and the Court's Scheduling Order (Docket No. 205, SPCA Defs. Atty. Decl. ¶ 21).
Plaintiffs respond that the SPCA defendants sought information about a non-existent farm in Allegany, New York (e.g., Docket No. 212, Pls.' Atty. Supp'al Reply Affirm. ¶¶ 4, 5, filed Dec. 5, 2006).
Response to the SPCA defendants' motion (including any cross-motion by plaintiffs to compel) was due by December 1, 2006, any reply was due by December 8, 2006 (Docket No. 207), and the motion was deemed submitted, without oral argument, on December 8, 2006 (Docket No. 207). Plaintiffs sought an extension to December 4, 2006, to respond and to cross-move (Docket No. 209), which was granted in part (Docket No. 214), allowing their response by that date but denying them leave to cross-move after December 1, 2006, noting that plaintiffs failed to file a cross-motion by December 4 to meet their sought extension. Although plaintiffs filed their responses in the early morning hours of December 5, 2006 (see Docket Nos. 212, 213, Notices of Electronic Filing for Nos. 212, 213), the Court will consider these submissions.
I. Discovery Standards and Sanctions
Parties are reminded that discovery under the Federal Rules is intended to reveal relevant documents and testimony, but by a process with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). As previously stated, the familiar standard under Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A), (B); see also id. R. 37(d)(1) (failure of party to attend own deposition, possible sanctions include evidentiary or issue preclusion). Under Rule 37(a)(4), if the motion to compel is granted, the Court "shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, . . ., unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the discovery or disclosure without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(4). An incomplete disclosure is treated as a failure to disclose, Fed. R. Civ. P. 37(a)(3).
The SPCA defendants move under Rule 37(a)(4) and Rule 16 (as well as the parallel local Court rules) to compel plaintiffs' production, but some of what is sought was governed by a previous Order to compel (Docket No. 178). Thus, these movants could have sought other appropriate sanctions, such as an order establishing facts, claim preclusion, striking pleadings or dismissal of action, under Rule 37(b) for failing to comply with this Court's Order, see Fed. R. Civ. P. 37(b)(2)(A)-(C) (listing sanctions), as well as attorneys' fees and costs for the motion to ...