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Marano v. Aaboe

February 27, 2007

JEFF MARANO, ET AL., PLAINTIFFS,
v.
SOREN AABOE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

OPINION AND ORDER

I. INTRODUCTION

Jeff Marano ("Marano") and Norberto Benitez ("Benitez") bring this action against Soren Aaboe, Dr. Christopher Johnson, and Forever Fit NY, Incorporated, doing business as Jorgensen Clinic (collectively, "Forever Fit"). The claim arises out of Forever Fit's unauthorized use of a photograph of Benitez taken by Marano. Pending before the Court is Marano and Benitez's motion to compel Forever Fit to: 1) respond to interrogatories served on October 31, 2006; 2) produce documents in response to a request for production of documents served on October 31, 2006; and 3) produce Soren Aaboe for a deposition pursuant to Marano and Benitez's request. Forever Fit maintains that the pending motion should be denied because: 1) the interrogatories were inappropriate under the rules of discovery; 2) all relevant records have been produced; 3) certain requested records are not relevant; and 4) Marano and Benitez's request to depose Aaboe was not timely.

Also pending before this Court is Forever Fit's motion to compel Marano and Benitez to produce documents in response to a request for production of documents served on October 17, 2006. Marano and Benitez contend that Forever Fit's motion should be denied because they have already produced all responsive documents that are in their possession, custody, or control, and there has been no showing that they have withheld responsive documents. For the reasons which follow, Marano and Benitez's motion to compel is GRANTED, in part, and DENIED, in part, and Forever Fit's motion to compel is DENIED.

II. BACKGROUND

On August 4, 2006, Marano and Benitez contacted Forever Fit, by letter and electronic mail, to schedule depositions of several persons, including defendant Soren Aaboe. Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Compel Discovery ("Pl. Mot."), Exh. A. In the letter, Marano and Benitez suggested several dates during September for the depositions, but allege that they never received a response from Forever Fit. Id. at 2. On September 27, Marano and Benitez sent a letter to Forever Fit, requesting information and documentation. Id., Exh. B. Marano and Benitez allege that Forever Fit neither responded to the letter, nor provided the information. Id. at 2. Marano and Benitez then contacted Forever Fit regarding the letter, but were told that Forever Fit had not responded because the letter was not in the proper form according to the Federal Rules of Civil Procedure. Id. On October 17, Forever Fit served their discovery requests, including interrogatories and requests for production of documents, on Marano and Benitez, which they responded to on November 16. Defendant Soren Aaboe and Forever Fit NY, Inc.'s Memorandum in Support of Motion to Compel Production of Documents ("Def. Mot."), at 3; Plaintiff's Reply in Opposition to Defendants Memorandum in Support of Motion to Compel Production of Documents ("Pl. Reply"), at 3. On October 19, the parties had a conference before this Court, and a discovery deadline of December 15, was set. On October 31, Marano and Benitez served Forever Fit with a set of interrogatories and a request for documents. Pl. Mot. at 3. On November 17, Marano and Benitez sent an email to Forever Fit, alerting Forever Fit that they still wanted to depose defendant Aaboe and requesting that Forever Fit let Marano and Benitez know what Aaboe's availability was. Def. Reply, Exh. D. On December 4, Marano and Benitez sent Forever Fit a formal Notice of Deposition of defendant Aaboe, and suggested a series of potential dates between December 6 and December 14. Pl. Mot., Exh. D. Forever Fit responded by electronic mail on December 7, stating that Aaboe was not available to be deposed during the next week. Id., at 3. On December 11, Forever Fit served their responses to Marano and Benitez's discovery requests of October 31, stating that they were continuing to look for and copy the documents requested. Id. Also on December 11, Forever Fit wrote to Marano and Benitez, challenging their November 16, response to Forever Fit's request for documents, and asserting that he believed Marano and Benitez to be withholding responsive documents. Def. Mot. at 3. During a subsequent phone conversation, Forever Fit alleges that the parties had a disagreement over principles of copyright law and, in response to that conversation, Forever Fit reformulated his request for documents and sent a subsequent letter on December 21. Id. at 4. On December 29, Marano and Benitez responded to Forever Fit's letter by producing sixteen pages of email records concerning Marano's sale of his photographs. Pl. Reply at 2.

On December 15, the Court held a telephone conference with the parties, and ordered them to cure any discovery defects within one week. Each party was granted permission to file a motion to compel for any remaining disputes. On January 5, 2007, both parties filed motions to compel, and, on January 12, both parties filed responses.

III. DISCUSSION

A. The Legal Standard

The scope of discovery is generally limited to any matter, not privileged, which is relevant to the claim or defense of any party or appears reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Ferguson v. Lion Holding, Inc., 2005 WL 1216300, *2 (S.D.N.Y., Mar. 25, 2005). The Court has broad discretion in managing discovery. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004); In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003); Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir. 1992).

B. Marano and Benitez's Motion to Compel Responses to Interrogatories

Marano and Benitez served Forever Fit with twelve interrogatories, and claim that Forever Fit objected to seven in their entirety, answered three partially, answered one completely, and asserted that it did not understand one. Pl. Mot. at 7. Marano and Benitez claim that Forever Fit's objections violate the Federal Rules of Civil Procedure because they use "boilerplate objections" and don't "show specifically how . . . each interrogatory is improper or unanswerable." Id. at 7-8. Forever Fit argues that, under Local Rule 33.3*fn1 , the interrogatories are inappropriate, and that it should not be compelled to answer them. Def. Reply at 1-2.

Forever Fit asserts that taking the deposition of defendant Aaboe would have been the proper method of obtaining the discovery sought through the interrogatories, but that Marano and Benitez "chose . . . not to do so." Id. at 4. In addition, Forever Fit argues that it should not be compelled to answer Interrogatories Numbers Six, Seven and Eight because they are "irrelevant to the Court's inquiry" in the matter, and, therefore, inadmissible under Federal Rule of Evidence 402. Id. at 7.

Marano and Benitez's interrogatories are narrow in scope and ask discrete questions, which make them a practical method of obtaining the information sought. As for the specific challenge to Interrogatories Numbers Six, Seven, and Eight, the scope of discovery is much broader than that of admissibility, and includes all matters, so long as they are not privileged, that could reasonably lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). Under this standard, Interrogatories Numbers Six, Seven, and Eight could reasonably lead to the discovery of admissible evidence, and, as ...


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