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Trueman v. New York State Canal Corp.

February 24, 2010


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


Presently before the Court is the Defendants' Motion to Compel pursuant to Federal Rule of Civil Procedure 37. Dkt. No. 38, Defs.' Mot. to Compel, dated Jan. 26, 2010.*fn1 Trueman opposes the Motion to Compel. Dkt. No. 40, Pl.'s Resp., dated Feb. 16, 2010.*fn2 While this Motion awaits a resolution, the Court issued an order staying all other proceedings. Text Order, dated Feb. 17, 2010. A brief discussion of the pertinent events is warranted.

This Court issued a Pretrial Scheduling Order setting, inter alia, the discovery deadline for February 14, 2010. Dkt. No. 29, Scheduling Order, dated Mar. 20, 2009. On October 5, 2009, the Defendants served their First Set of Interrogatories and Request for the Production of Documents. Dkt. No. 40-1, Ex. The Defendants propounded seventeen (17) Interrogatories and four (4) Requests for Production. On October 29, 2009, Trueman served his Responses to the Interrogatories, which had glaring deficiencies. Dkt. No. 30, Defs.' Lt., dated Dec. 11, 2009, with Ex. Unsatisfied with some of the Responses, Defendants' Counsel wrote Trueman's Counsel objecting to the Responses and highlighted those failures. Among several complaints, the Defendants noted that Trueman, when responding, failed to comply with the District's Local Rule 26.1*fn3 and to properly verify the Responses. Id. Noting that Defendants' issues were "quibbles," Trueman stated that he would not repeat the Interrogatory as required by Local Rule 26.1, but also noted that more information may be forthcoming by December 28, 2009. Dkt. No. 30, Ex., E-mail, dated Dec. 12, 2009.

Not willing to wait until December 28, 2009, the Defendants filed a Letter-Motion seeking a discovery conference. Dkt. No. 30, Defs.' Lt.-Mot., dated Dec. 18, 2009. Anticipating that the discovery conference would be held on or about January 8, 2010, the Court issued an Order providing "instructions with the expectation that we may be able to obviate the need for a discovery conference." Dkt. No. 31, Order, dated Dec. 18, 2009, at p. 1. The Court noted that Trueman failed (1) to comply with Local Rule 26.1, (2) to verify his Responses pursuant to FED. R.CIV. P. 33(b)(3), and (3) to adequately respond to certain Interrogatories, which included identifying the maritime law applicable to this case. Id. The intent of these instructions, with citations, was to give Trueman an opportunity to amend and correct these obvious insufficiencies, hopefully without further court intervention. Id. at p. 3. Further, the Court directed Trueman to resubmit his amended responses consistent with the Local Rules and for the parties to submit times that they may be available for the telephonic discovery conference. Id. at p. 2.

Regarding the adequacy of Truman's Responses, they are problematic in several respects. The odd, bifurcated manner in which the Responses were rendered, particularly with regards to Interrogatories number 6 and 14, contributed to the Defendants' concerns. Rather than one complete and comprehensive document, Trueman's Response to the Interrogatories, from all appearances, was binary: a primary document and an addendum. It appears that the principal answers were furnished by Trueman himself, whereas, in the case of Interrogatories number 6 and 14, he refers his answers to those Interrogatories to his attorney, who, it appears, submitted an addendum with the corresponding responses. And, only the attorney signed one of the documents (the addendum) lending to the view that two independent documents were being served upon the Defendants. Dkt. No. 30, Ex. The Defendants objected to this bifurcated approach to answering their Interrogatories, noting that Trueman did not answer nor sign these Interrogatories, but Counsel did. Dkt. No. 30 at p. 1

On December 24, 2009, the Defendants filed a Status Report attaching Trueman's revised Interrogatory Responses. Dkt. No. 34. Notwithstanding the Court's explicit instructions and directions, the only revision to Trueman's Responses was his verification. Id. Additionally, Trueman did not follow the requirement of Local Rule 26.1. Noticeably missing from the Revised Interrogatory Responses was the attorney's original addendum Responses to Interrogatories number 6 and 14 or were those Responses incorporated into the main text of the Revised Interrogatories. Id. Noting that Trueman did not heed the Court's instructions nor attempted to respond accordingly, the Court found that there was no need for a conference, since, at best, it would be an unnecessary rehashing of the Court Order, and granted, sua sponte, Defendants permission to file a motion to compel if they felt it was warranted. Dkt. No. 35, Order, dated Dec. 24, 2009.

Even though Trueman protests that he "provided [] additional responses and verification for those and prior responses," Dkt. No. 36, Pl.'s Lt., dated Dec. 28, 2009,*fn4 a comparison of Trueman's Responses delivered on November 5, 2009, and December 28, 2009, belie that representation. See Dkt. Nos. 30 & 34. The Court does not detect any alteration or additional information provided in the December 28th Responses. Rather, it appears that certain "ancillary" Responses had been withdrawn.

As a general proposition, interrogatories are controlled by FED. R. CIV. P. 33 and 26. Interrogatories, like other discovery devices, may inquire into any discoverable matter, including facts and contentions. There are many purposes for interrogatories but the general aims are to expeditiously narrow the scope of litigation, reduce the element of surprise, serve as admissions for trial,*fn5 and in a significant matter avoid unnecessary discovery and minimize the expense. JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 33.03 (3d ed. 2009). Each interrogatory, whether seeking facts or contentions, is to be answered "separately and fully." These interrogatories may relate to any matter that can be inquired into under Rule 26(b)(1). FED. R. CIV. P. 33(a)(2); MOORE'S FEDERAL PRACTICE § 33.02.

An answer to an interrogatory must be completed within itself and, it should be in a form that may be used at trial. Int'l Mining Co., Inc. v. Allen & Co., Inc., 567 F. Supp. 777, 787 (S.D.N.Y. 1983). The responding party must provide the best answer they can based upon current information in their possession. FED. R. CIV. P. 33(b)(3) ("Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath."); Doe v. Mercy Health Corp., 1993 WL 377064, at *4; MOORE'S FEDERAL PRACTICE § 33.101. And, as new information comes into its possession, the responding party has a continuing duty to supplement their responses. FED. R. CIV. P. 26(e)(1); MOORE'S FEDERAL PRACTICE § 33.106.

Answers to interrogatories that incorporate other documents by reference are strongly disfavored. Reference to depositions, other answers to the interrogatories, other document production, the complaint itself, or any other documents are improper and thus unresponsive. Poulio v. Paul Arpin Van Lines, Inc., 2004 WL 1368869, at *2 (D. Conn. June 14, 2004) (noting that other courts have held that a party may not incorporate deposition testimony or rely upon future depositions in lieu of complete responses to interrogatories); In re Savitt/Adler Litig., 176 F.R.D. 44, 49 (N.D.N.Y. 1997); MOORE FEDERAL PRACTICE §§ 33.101, 33.103, & 33.106.

In order for an answer to be adequate it must be a complete response to the interrogatory, specific as possible and not evasive. In re Savitt/Adler, 176 F.R.D. at 49. The answer is supposed to provide more than an idea of what the case or defense is all about. This does not necessarily mean, however, that the responding party needs to provide all evidentiary proof or every shred of evidence, but it must be particular as to relevant facts of the case. Harlem River Consumers Co-op., Inc. v. Assoc. Grocers of Harlem, Inc., 64 F.R.D. 459, 466 (S.D.N.Y. 1974) (citing United States v. Renault, Inc., 27 F.R.D. 23, 26-27 (S.D.N.Y. 1960)). Thus, a boilerplate answer is no better than no response. The responding party must make an effort to answer with the information "reasonably available to it [and] . . . is not excused from making its disclosure because it has not fully investigated the case . . ." FED. R. CIV. P. 26(a)(1)(E). If, at any juncture of the litigation, the responding party cannot provide the details necessary to respond adequately, it has two options. First, they can answer accordingly and further state that they are unable to provide further details and need more discovery, essentially deferring the answer to a later time when they can provide the information either by an amendment or supplemental response. FED. R. CIV. P. 33(b)(3); Zapata v. IBP, Inc., 1995 WL 293931 (D. Kan. May 10, 1995); In re Savitt/Adler, 176 F.R.D. at 51 (an admission that no facts exist at this current time suffices as an adequate, independent response.). Or, it can elect the option provided in FED. R. CIV. P. 33(d) to substitute business records in lieu of a narrative answer to the interrogatory. Nonferrous BM Corp., v. Caron Ltd., 1996 WL 208182 (S.D.N.Y. Apr. 26, 1996).

The Defendants can properly ask for an answer that may involve "an opinion or contention which relates to fact or the application of the law to fact," with the hope it would lead to evidence or narrow the issues. FED. R. CIV. P. 33(c); United States v. Renault, 27 F.R.D. at 29; MOORE'S FEDERAL PRACTICE § 33.78. Because an inquiring party is entitled to know his adversary's theory of the case, Rule 33 which permits contention interrogatories can be mixed questions of law and fact. MOORE'S FEDERAL PRACTICE § 33.78; American Nurses' Ass'n v. Illinois, 783 F.2d 716, 723 (7th Cir. 1986). But, Rule 33 does not permit the inquiring party to seek an answer of "pure law." MOORE'S FEDERAL PRACTICE § 33.79 ("Interrogatories involving pure law are those that call for 'legal issues unrelated to the facts of the case.'"); Kendrick v. Sullivan, 125 F.R.D. 1, 2 & 4 (D. D.C. 1989) (noting that hypothetical legal questions and discovery as to legal arguments are impermissible). Because there isn't a clear delineation or bright line rule regarding permissible inquiries of fact and applicable law and impermissible question of "pure law," such inquiry must be done on a case by case basis.

The Court will first address the mandates of the District's Local Rule 26.1. Trueman's Responses are not prefaced by the Interrogatories as directed by Rule 26.1. The District's Local Rule 26.1 states, in part, that "[i]n answering or objecting to interrogatories . . ., the responding party shall first state verbatim the propounded interrogatory or request and immediately thereafter the answer or objection."*fn6

Trueman argues that since there are only seventeen Interrogatories - not numerous in his opinion - the Defendants could "review the responses in one document with the other document in his other hand and make sense of the responses." Pl.'s Mem. of law at pp. 3-4. What Trueman fails to comprehend is that this Rule was not designed solely for the benefit of the litigators, but also for the Court and other fact finders. As the Court previously explained to Trueman, it "could not follow Plaintiff's Responses and the document itself is jumbled and lacks clarity . . . . To avoid this very problem, the District issued Local Rules that mandated ...

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