United States District Court, S.D. California
ORDER REGARDING JOINT STATEMENT OF DISCOVERY DISPUTE REGARDING LA
JOLLA SPA MD, INC.'S RESPONSES TO INTERROGATORIES, REQUESTS FOR PRODUCTION OF
DOCUMENTS AND REQUESTS FOR ADMISSION ORDER REGARDING JOINT STATEMENT OF
DISCOVERY DISPUTE REGARDING TRUSTEE OF FAY AVENUE PROPERTIES LLC'S BANKRUPTCY
ESTATE'S RESPONSES TO INTERROGATORIES
WILLIAM V. GALLO, Magistrate Judge.
On June 13, 2014, Plaintiffs Trustee of Fay Avenue Properties Bankruptcy Estate ("Fay Ave"), and La Jolla Spa MD, Inc. ("LJ Spa") and Defendant Travelers Property Casualty Company of America ("Defendant") filed Joint Statements for Determination of Discovery Disputes. One Joint Statement involves LJ Spa's Responses to Defendant's Interrogatories, Requests for Production of Documents, and Requests for Admission. The other Joint Statement involves Fay Ave's Responses to Defendant's Interrogatories. The Court, having reviewed the Joint Statements, the authorities cited therein, the discovery requests and the re-sponses thereto, and the documents attached to the Joint Statements, and GOOD CAUSE APPEARING, HEREBY ORDERS as follows:
A. Waiver of Discovery Objections The Court observes that most of Fay Ave's and LJ
Spa's responses to Defendant's discovery requests state objections such as vague, ambiguous, overbroad, unduly burdensome, oppressive as to scope and time, compound, etc. Additionally, many of the responses invoke the attorney-client privilege and work product doctrine. Further, the responses contain language stating "subject to and without waiving these objections, (Plaintiff) responds as follows:, " and "(Plaintiff) will produce non-privileged responsive documents within its custody and control."
Conditional responses and/or the purported reservation of rights by Plaintiffs is improper and ultimately has the effect of waiving Plaintiffs' objections to the discovery requests. Sprint Communications Co. v. Comcast Cable Communications, LLC, 2014 WL 545544 at *2 (D. KS 2014)("Sprint I"), modified 2014 WL 569963 (D. KS 2014)("Sprint II"). 11cv2389
The Court recognizes that it is common practice among attorneys to respond to discovery requests by asserting objections and then responding to the discovery requests "subject to" and/or "without waiving" their objections. This practice is confusing and misleading. Moreover, it has no basis in the Federal Rules of Civil Procedure. Sprint I, 2014 WL 545544 at *2.
The responses are confusing and misleading because, for example, when a party responds to an interrogatory that is "subject to" and "without waiving its objections, " the propounder of the interrogatory is "left guessing as to whether the responding party has fully or only partially responded to the interrogatory." Estridge v. Target Corp., 2012 WL 527051 at *1-2 (S.D. FL 2012). Similarly, with respect to requests for production of documents, a response "subject to" and "without waiving objections, " leaves the requesting party to guess whether the producing party has produced all responsive documents, or only some responsive documents and withheld others on the basis of the objections. Sprint I, 2014 WL 545544 at *2, Rodriguez v. Simmons, 2011 WL 1322003 at *7 (E.D. Cal. 2011)(Defendant's objections to requests for production of documents did not comply with the Federal Rules of Civil Procedure because the responses to the requests for production of documents did not clearly state that the documents had already been produced, or exist, but are not being withheld based on other interposed objections.)
"If Defendants do have responsive documents, but wish to withhold them on privacy (or privilege) grounds, Plaintiff should be made aware of this fact and the parties should continue their meet and confer obligations to ensure redaction, a protective order, in camera review, or other (privilege or) privacy-guarding measures are implemented to properly balance the need for discovery against the need for (privilege or) privacy." Id. at *7, fn. 9 (citation omitted)(emphasis in original).
Moreover, when a party responds to a request for production of documents, it has three options under Federal Rule of Civil Procedure 34: (1) serve an objection to the requests as a whole, [Federal Rule of Civil Procedure 34(b)(2)(B)], or (2) serve an "objection to part of the request, provided it specifies the part to which it objects and respond to the non-objectionable portions, [Federal Rule of Civil Procedure 34(b)(2)(C)] or (3) serve a response that says that all responsive documents will be produced. What a party can not do is combine its objections into a partial response without any indication that the response was actually a partial response. Haeger v. Goodyear Tire & Rubber Co., 906 F.Supp.2d 938, 976 (D. AZ 2012).
Further, conditional responses to discovery requests violate Federal Rule of Civil Procedure 26. Rule 26 (g)(1)(B)(i)-(iii) requires responders to discovery requests to certify that the discovery responses are consistent with the Federal Rules of Civil Procedure, "not imposed for any improper purpose, " and are "neither unreasonable nor unduly burdensome." Moreover, the 1983 Committee comments to Rule 26(g) state that "Rule 26 imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rule 26 through 37." Providing conditional responses to discovery requests is improper. Sprint II, 2014 WL 1569963 at *3.
Consequently, since Plaintiffs' responses to discovery requests that are "subject to" and "without waiving objections, " are improper, the objections are deem waived and the response to the discovery request stands. Estridge, 2012 WL 527051 at *2, [citing Tardif v. People for the Ethical Treatment of Animals, 2011 WL 1627165 at *2 (M.D. FL 2011), Pepperwood of Naples Condominium Assn. v. Nationwide Mutual Fire Ins. Co., 2011 WL 4382104 at *4-5 (M.D. FL 2011), Consumer Elecs. Assn. v. Compras And Buys Magazine, Inc., 2008 WL 4327253 at *3 (S.D. FL 2008)("subject to" and "without waiving objections" "preserve... nothing and serve... only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting party uncertain as to whether the question has actually been fully answered or whether portion of the question has been answered.")
B. Reference To Documents In Discovery Requests
A party may answer an interrogatory by specifying records from which the answer may be obtained and by making the records available for inspection. Federal Rule of Civil Procedure 33(d)(2). But the records must be specified "in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could." Federal Rule of Civil Procedure 33(d)(1). Responses to interrogatories that do not specify where in the records the answers could be found do not comply with Rule 33(d)(1). Rule 33 was amended in 1980 "to make clear that a responding party has the duty to specify, by category and location, the records from which the answers to the interrogatories can be derived." Rainbow Pioneer No. 44-18- 04A v. Hawaii Nevada Inv. Co., 711 F.2d 902, 906 (9th Cir. 1983)[discussing former Federal Rule of Civil Procedure 33(c)]. West v. Ultimate Metals Co., 2014 WL 466795 at *2 (N.D. Cal. 2014), Tourgeman v. Collins Financial Services, Inc., 2010 WL 2181416 at *6 (S.D. Cal. 2010). Former Federal Rule of Civil Procedure 33(c) is the same as the current Federal Rule of Civil Procedure 33(d). Cambridge Electronics Corp. v. MGA Electronics, 227 F.R.D. 313, 323, (C.D. Cal. 2004).
A party seeking damages must timely disclose its theory of damages as well as its computation of those damages. Brighton Collectibles, Inc. v. RK Texas Leather Mfg., 2013 WL 4716210 at *3 (S.D. Cal. 2013)."Computation' contemplates some analysis beyond merely setting forth a lump sum amount. While the computation of damages does not need to be detailed early in the case prior to relevant discovery, the plaintiff must supplement its initial damage computation to reflect information obtained during discovery." Id. at *3, citing City & County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221-222 (N.D. Cal. 2003). Further, the service of expert witness' reports does not excuse a litigant from his/her other discovery obligations, such as a computation of damages. Shakespear v. Wal-Mart Stores, 2013 WL 6498898 at *4 (D. NV 2013). Future expert analysis does not relieve a litigant of its obligation to provide information that is reasonably available to it regarding its alleged damages. Frontline Medical Assoc. v. Coventry Health Care, 263 F.R.D. 567, 570 (C.D. Cal. 2009). There-fore, Plaintiffs' responses to Defendant's discovery requests, particularly as to Plaintiffs' responses that state that expert discovery is needed to respond to the discovery requests, are insufficient.
The Court observes that many of Fay Ave's and LJ Spa's responses to Defendant's discovery requests refer to documents produced in this litigation. However, the responses that refer to documents are inadequate because they fail to specify in sufficient detail to enable Defendant to locate and identify the documents to which Plaintiffs refer. Many of Defendant's requests refer to Plaintiff's substantiation of the damages they have allegedly sustained. Plaintiffs must provide to Defendant a computation of the damages they claim in this litigation, and must specifically identify the documents they used to arrive at the computation of damages.
C. Assertion of Privileges
The Court observes that many of Fay Ave's and LJ Spa's responses to Defendant's discovery requests assert that the requests invade the attorney-client privilege, work product or are "objectionable." To the extent that the responses invoke a privilege, work product, or are "objectionable, " Plaintiffs are required to provide to Defendant a privilege log that lists each document with-held from production. Federal Rule of Civil Procedure 26(b)(5)(A)(i)-(ii). A proper assertion of of privilege, work ...