The opinion of the court was delivered by: Peggy A. Leen United States Magistrate Judge
(Mtn to Compel - Dkt. #45)
(Mtn for Ext'n - Dkt. ##47, 48)
This matter is before the court on Plaintiff's Motion to Compel Answers to Interrogatories (Dkt. #45); Defendants Campbell's, R. Robinson's, Bunnell's, Pogue's, Machado's, Costa's, Kowalczyk's, D. Robinson's, Clendenin's, and Huerta-Garcia's (the "Non-Baker Defendants") Opposition (Dkt. #52); the Non-Baker Defendants' Supplemental Opposition (Dkt. #52); the Non-Baker Defendants' Errata Re: Supplemental Opposition (Dkt. #54); Defendant Jeffrey Baker's Opposition (Dkt. #46); Plaintiff's Reply to Defendant Baker's Response (Dkt. #49); Plaintiff's Reply to the Non-Baker Defendants (Dkt. #51); and Plaintiff's Reply to the Non-Baker Defendants' Supplemental Opposition (Dkt. #53). The court has considered the foregoing filings as well as the Non-Baker Defendants' First and Second Motions to Continue Response Date (Dkt. ##47, 48).
Plaintiff is proceeding in this action pro se and filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is a prisoner, and the court granted him leave to proceed in forma pauperis. See Order, Dkt. #4. The court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A, found that it failed to state a claim, and allowed Plaintiff leave to amend. Plaintiff filed an Amended Complaint (Dkt. #10), and the court found that service was appropriate on all Defendants. Plaintiff's Amended Complaint (Dkt. #10) alleges that he was retaliated against by prison officials in violation of his First Amendment rights after filing another complaint pursuant to 42 U.S.C. § 1983, which is currently pending before the court as Case No. 2:05-cv-00192-AK (the "2005 Case").
Plaintiff asserts that he served Defendants with Interrogatories on September 21, 2008, and Defendants responded on November 11, 2008. Plaintiff states he propounded a second set of Interrogatories on Defendants on December 2, 2008, and on January 1, 2009, Defendants answered. Plaintiff was dissatisfied with the Defendants' response, and sent a letter dated October 29, 2009, to the Defendants stating which responses he found to be deficient and why. Plaintiff asserts that many of the Defendants' responses to interrogatories are inadequate and deficient. Plaintiff asserts that none of the discovery he seeks is privileged. Plaintiff has corresponded with Defendants, attempting to obtain completed answers to his requests for discovery. Plaintiff further asserts that the Interrogatories are relevant to the claims and defenses in this action. Plaintiff asserts that defense counsel has purposely given evasive and incomplete responses with unfounded objections in order to delay litigation and harass the Plaintiff. He requests sanctions be imposed against Defendants and defense counsel. Plaintiff asserts that although discovery has closed in the 2005 Case, he is still permitted to obtain discovery in this case.
A. The Non-Baker Defendants' Opposition and Plaintiff's Replies
In response, the Non-Baker Defendants assert that they have fully responded to Plaintiff's Interrogatories by providing all relevant responsive information they were able to provide, based upon their personal knowledge and information reasonably available to them. The Non-Baker Defendants assert they are not required to provide information available to them because, as natural people and not entities, Rule 33(b)(1)(A) does not apply to them. The opposition then goes through, request by request, the responses Plaintiff claimed were deficient in his October 29, 2009, letter and states why the Non-Baker Defendants believe the responses are adequate. The Non-Baker Defendants' Opposition also attaches an affidavit from each Non-Baker Defendant swearing that he or she has provided all relevant and responsive information he or she was able to provide based upon his or her personal knowledge or information that was reasonably available.
Plaintiff's reply asserts that Defendant Clendenin was untruthful in his responses to Plaintiff's Interrogatories. For example, Plaintiff compared Defendants Clendenin's and Costa's responses to Plaintiff's Interrogatories with a declaration Defendant Clendenin submitted in support of his motion for summary judgment in the 2005 Case, and Plaintiff noted inconsistencies. Specifically, he points to Interrogatory Nos. 1 and 3. Both Interrogatories requested information concerning an interview Clendenin conducted of Plaintiff in January, 2004. In response to the Interrogatories, submitted on July 8, 2008, and October 30, 2008, respectively, Defendant Clendenin asserted he could not recall any details of the interview. However, in the declaration submitted in the 2005 Case executed on December 17, 2009, Defendant Clendenin states the purpose and details of that same interview. Plaintiff also asserts that Defendant Costa was untruthful in his responses, which is demonstrated in his responses to Interrogatory Nos. 3 and 11, in which Plaintiff requested information concerning a conversation Costa had with a nurse concerning Plaintiff's transfer. Costa responded to Interrogatory No. 3 that he recalled having the conversation, but he could not recall the content of it. In response to Interrogatory No. 11, Costa responds that he cannot recall who contacted him on the same day concerning Plaintiff. Plaintiff asserts that Defendants Clendenin and Costa were not truthful in their responses to Plaintiff's Interrogatories, and the court should grant his request that sanctions be imposed.
In a surreply filed by the Non-Baker Defendants, Defendants Clendenin and Costa assert that they provided truthful responses to Plaintiff's Interrogatories in 2008. The surreply, which is supported by an affidavit of Defendant Clendenin, contends Clendenin was able to provide a more detailed description of her interview of Plaintiff in January 2004 because defense counsel provided her a memo written by Acting Warden Scott Kernan concerning the interview prior to drafting the declaration in support of summary judgment. This memo refreshed Defendant Clendenin's memory, and after reviewing it, she provided supplemental responses to Interrogatories Nos. 1 and 3 to Plaintiff. Defendant Costa also asserts his responses to Plaintiff's Interrogatories were truthful, and he asserts his inability to recall whether the nurse contacted him, or he contacted the nurse is understandable because Plaintiff was transferred from Mule Creek State Prison ("MCSP") over five years ago.
In response to the Non-Baker Defendants' Supplement, Plaintiff asserts the court should not believe Defendants' Clendenin's and Costa's rationale offered in the Supplement. Plaintiff also notes that the Supplement incorrectly refers to Defendant Sosa instead of Defendant Costa, an error defense counsel concedes in the Errata (Dkt. #54).
B. Defendant Baker's Position and Plaintiff's Reply
Defendant Baker's Opposition (Dkt. #54) asserts that Plaintiff's Motion to Compel (Dkt. #45) should be denied because Plaintiff has failed to sufficiently state why Baker's responses to Plaintiff's Interrogatories are insufficient. Although Baker concedes Plaintiff's October 27, 2009, letter outlines which Interrogatories Plaintiff believes are inadequate, Baker asserts Plaintiff's Motion fails to identify the Interrogatories for which he is moving to compel responses. Baker also asserts that any request for information concerning claims of sexual harassment are irrelevant because Plaintiff has not alleged a claim for sexual harassment in the Amended Complaint. Baker contends that many of Plaintiff's Interrogatories request information relevant to the 2005 Case, where discovery has closed, and Plaintiff cannot circumvent the Scheduling Order in that case by requesting discovery in this case. Baker also asserts that Plaintiff propounded more than twenty-five interrogatories without seeking a court order to exceed the limitation imposed by Rule 33 of the Federal Rules of Civil Procedure. Lastly, Baker asserts that Plaintiff does not have a basis to recover attorney's fees and costs, and that request should be denied.
In reply, Plaintiff asserts that Defendant Baker is aware of which Interrogatory responses Plaintiff believes are deficient. On October 27, 2009, Plaintiff mailed a letter to Defendant Baker attempting to resolve these discovery disputes short of court intervention, and in it, he enumerated the various responses with which he was dissatisfied. Plaintiff contends the letter also states why Baker's responses are deficient. Plaintiff asserts that Defendant Baker's Opposition demonstrates his awareness of the responses at issue because it lists the responses Plaintiff contends are insufficient. Plaintiff asserts that Defendant Baker made no reasonable inquiry to respond to Plaintiff's Interrogatories, and he has not served any supplemental responses. Lastly, Plaintiff asserts he has not requesting attorney's fees; he is requesting costs associated with filing and serving the motion as well as sanctions against defense counsel.
Fed. R. Civ. P. 26(b) was amended in 2000 and permits discovery into "any matter, not privileged, that is relevant to the claim or defense of any party." The stated purpose of the amendment was not only to narrow the scope of discovery, but also to address the rising costs and delay of discovery. See Graham v. Casey's General Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002); Advisory Committee Notes to 2000 Amendments to Fed.R.Civ.P. 26. A number of courts and commentators have addressed the scope of discovery since the 2000 Amendments to Rule 26(b). There seems to be a general consensus that the Amendments to Rule 26(b) "do not dramatically alter the scope of discovery." World Wrestling Fed'n Entm't, Inc., v. William Morris Agency, Inc., 204 F.R.D. 263, 365 n.1 (S.D.N.Y. 2001). Most courts which have addressed the issue find that the Amendments to Rule 26 still contemplate liberal discovery, and that relevancy under Rule 26 is extremely broad. See, e.g., Saket v. American Airlines, Inc., 2003 WL 685385, at *2 (N.D. Ill. Feb. 28, 2003); Richmond v. UPS Service Parts Logistics, 2002 WL 745588, at *2 (S.D. Ind. Apr. 25, 2002). See also Johnson v. Mundy Indus. Contractors, Inc., 2002 WL 31464984, at *3 (E.D.N.C. Mar. 15, 2002) (stating that the 2000 Amendments to Rule 26(b)(1) are "basically a semantic change unlikely to have much salutary effect on the conduct of discovery").
However, a number of courts have concluded that the 2000 Amendments to Rule 26(b)(1) "mandate greater scrutiny" of discovery requests. Surles v. Air France, 2001 WL 1142231, at *1 n.3 (S.D.N.Y. Sept. 27, 2001) ("it is intended that the scope of discovery be narrower than it was, in some meaningful way"). Sanyo Laser Prods. Inc. v. Arista Records, Inc., 214 F.R.D. 496, 500 (S.D. Ind. 2003) ("the scope of discovery has narrowed somewhat under the revised rule. The change, while meaningful, is not dramatic, and broad discovery remains the norm.") Several courts have concluded although there is no fundamental difference between the current and previous versions of Rule 26(b)(1), the difference can be ascertained by applying the principles in Rule 26(b)(2). As the court noted in Thompson v. Dept. of Hous. and Urban Dev., Lest litigants and the court become consumed with the philosophical exercise of debating the relevance between discovery relevant to the "claims and defenses" as opposed to the "subject matter" of the pending action -- the jurisdictional equivalent to debating the number of angels that can dance on the head of a pin -- the practical solution to implementing the new Rule changes may be to focus more on whether the requested discovery makes sense in light of the Rule 26(b)(2) factors, than to attempt to divine some bright line difference between the old and new rule. Under this approach, when confronted with a difficult scope of discovery dispute, the parties themselves should confer, and discuss the Rule 26(b)(2) factors, in an effort to reach an acceptable compromise, or narrow the scope of their disagreement. 199 F.R.D. 168, 172 (D. Md. 2001); accord Sanyo Laser Products, Inc., v. Arista Records, Inc., 214 F.R.D. 496, 500 (S.D. Ind. 2003). In deciding whether to restrict discovery under Rule 26(b)(2) "the court should consider the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and taking into account society's interest in furthering the truth-seeking function in the particular case before the court." Smith v. Steinkamp, 2002 WL 1364161, at *6 (S.D. Ind. May 22, 2002) (quoting Patterson v. Avery ...