GERALD L. RUSHFELT, Magistrate Judge.
This matter is before the Court upon a motion, entitled Defendants' Memorandum of Law in Support of Defendants' Motion to Compel Discovery (ECF 42). Defendants ask the Court to overrule objections and order Plaintiff to supplement his responses to their discovery requests and to his Rule 26 disclosures. Plaintiff has filed a response in opposition (ECF 44), to which Defendants have replied (ECF 47). For the reasons set forth below, the Court grants the motion in part and denies it in part.
Plaintiff filed this action, alleging Defendants discriminated against him while he was employed by CoreCivic of Tennessee, LLC.
The Court held a hearing on January 9, 2018.
After receiving an extension of time, Defendants filed the pending motion to compel Plaintiff to provide supplemental Rule 26 disclosures and respond to Defendants' First Set of Interrogatories and Requests for Production. Defendants say they have satisfied their preliminary obligations, as required by D. Kan. Rule 37.2.
Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery. It states:
Considerations of both relevance and proportionality now govern the scope of discovery.
"When the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure."
When the discovery sought is "overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request."
To succeed on a "vague and ambiguous" objection, the objecting party "must show that more tools beyond mere reason and common sense are necessary to attribute ordinary definitions to terms and phrases utilized."
Defendants first argue Plaintiff makes general, conditional, and form objections to their discovery requests. They ask the Court to find these objections waived. They also ask the Court to compel further responses to their interrogatories and requests for production and to Plaintiff's supplemental Rule 26 disclosures.
Plaintiff does not address many of Defendants' arguments in his response. He more simply says he has complied with the Order of January 9, 2018 and the Federal Rules of Civil Procedure, without any examples to support his statement. He says he has not withheld any documents or information "but simply asserted objections to certain discovery request (sic) to preserve them for trial."
Plaintiff included a "general objections" section in his responses to both the interrogatories and the requests for production of documents.
For his "general objections" to the interrogatories, Plaintiff states he "objects to interrogatories seeking information protected by the attorney-client privilege, the work product doctrine, or other applicable privilege or immunity."
For his "general objections" to Defendants' requests for production of documents, Plaintiff states he objects to each request "insofar as" it calls for documents that are not in his control, that were prepared for or in anticipation of litigation, that constitute work product or contain attorney-client communications or another privilege, that are publicly available, that "do not specifically refer to the events which are the subject matter of this litigation," and that are not relevant "nor reasonably calculated to lead to the discovery of admissible evidence."
In the District of Kansas, "general objections are considered `overly broad and worthless unless the objections are substantiated with detailed explanations.'"
Plaintiff objects "insofar as" and/or "to the extent that" each request for production at issue is either overly broad, unduly burdensome, vague, ambiguous, not relevant, or subject to some kind of privilege. Plaintiff has made no meaningful effort to show how any of these general objections apply to any specific request. Thus, these objections are "mere hypothetical or contingent possibilities."
Plaintiff further uses boilerplate language such as the interrogatory "is over broad, unduly burdensome and seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence."
As the objecting party, Plaintiff has failed to argue or show that any interrogatories or requests for production are irrelevant, overbroad, unduly burdensome, vague, or ambiguous on their face. Therefore, he has the burden to establish how each interrogatory and request is inadequate. He has not met that burden. His boilerplate, general objections are improper. The Court deems these objections waived and overrules them.
In all of his responses to the interrogatories and requests for production of documents at issue, Plaintiff includes a conditional objection before his answer. "Conditional objections occur when `a party asserts objections, but then provides a response `subject to' or `without waiving' the stated objections.'"
As with general objections, it is well settled in this district that "conditional answers are invalid and unsustainable."
Defendants argue the responses are incomplete and that Plaintiff should be compelled to provide complete answers. The Court agrees that many of his answers are incomplete. It considers each interrogatory and request for production. Each of Plaintiff's answers follows his general and conditional objections. As previously discussed, the Court overrules them and deems the objections waived. The Court considers whether the answers that accompany these objections are responsive.
Interrogatories 1 and 2 ask Plaintiff to identify all persons, and their addresses and telephone numbers, with whom Plaintiff has discussed his injuries that are described in the complaint, or his termination and alleged retaliation and discrimination of Defendants, or whom Plaintiff knows or believes has information related to his claims. Plaintiff lists several names and phone numbers, but only the city and state for each person. Defendants' motion to compel as to these interrogatories is granted. If Plaintiff does not know the person's address or phone number, he should so state. Otherwise, Plaintiff shall supplement these responses to fully answer the interrogatories.
Interrogatory No. 3 asks Plaintiff to identify the category into which each item of damages falls (i.e. general, special or consequential, etc.). Plaintiff states he is unable to accurately ascertain the amount of actual damages and reserves the right to supplement at later date. This answer is not responsive. Plaintiff provides no explanation for his alleged inability to ascertain his damages. The motion to compel is granted. Plaintiff shall supplement this response to fully answer the interrogatory.
Interrogatory Nos. 4 and 5 ask Plaintiff to identify any person other than counsel who has provided a written statement or opinion related to Plaintiff's allegations or who has discriminated against Plaintiff. He does respond, including names and descriptions of each person's statements, but he does not include dates. He includes a month and year, and if that is all he knows or can remember, he should so state. Otherwise, Plaintiff shall supplement this response to fully answer the interrogatories. Defendants' motion to compel as to these interrogatories is granted.
Interrogatories 6 and 7 ask Plaintiff to identify each complaint, concern, or grievance filed with Defendants. He responds that he does not have such information and believes it is in Defendants' email server. Plaintiff mentions at least three such incidents in his amended complaint.
Interrogatory No. 8 asks Plaintiff for his income from 2012 to present. He answers that he received unemployment benefits in 2017. but that he would supplement his response upon the finalization of his tax filing and income verification. He provides no further information as to when "the finalization of his tax filing and income verification" would occur. The Court will assume he now has the responsive information. Defendants' motion to compel with regard to this interrogatory is granted. Plaintiff shall supplement this response to fully answer the interrogatory.
Interrogatory No. 9 asks Plaintiff to list all employers with whom he was employed, including his job title and salary. Plaintiff simply says he was "self employed." Defendants' motion to compel as to this interrogatory is granted. Plaintiff shall supplement this response to fully answer the interrogatory. If he was not employed with any other employers, he should state that to be the fact. And he should also state what was his self-employed job title and his salary.
Interrogatory No. 10 asks Plaintiff to identify each prospective employer to which he applied during or after his employment with Defendants and the outcome of the applications. Plaintiff lists three prospective employers. But he provides no dates and fails to state the outcomes of the applications. The motion to compel as to this interrogatory is granted. Plaintiff shall supplement this response to fully answer the interrogatory.
Interrogatory No. 11 asks who besides Plaintiff's attorney assisted in the preparation of his responses. Plaintiff states "no one." This is a full and complete response to the interrogatory, and Defendants' motion to compel further response as to this interrogatory is denied.
Interrogatory No. 12 asks Plaintiff to identify all legal proceedings he has been involved in by case number and caption, including his role in each case and the outcome. Plaintiff lists several cases but no captions and only one case number. He does not state his role in any of them. Defendants' motion to compel as to this interrogatory is granted. Plaintiff shall supplement this response to fully answer the interrogatory.
Interrogatories Nos. 13 and 14 ask whether Plaintiff has ever complained of race or age discrimination or retaliation to an employer excluding Defendants. Plaintiff states "no." This is a full and complete response to the interrogatory, and Defendants' motion to compel further response as to these interrogatories is denied.
Interrogatory No. 16 asks for Plaintiff's email addresses, phone numbers, and social media sites that he used or accessed from January 1, 2015 to present. Plaintiff includes two email addresses and three phone numbers, but nothing regarding social media. The interrogatory specifically requests Plaintiff "provide the link to your home page." If Plaintiff does not have any social media website profiles (e.g. a Facebook account), he should so state. Otherwise, he shall supplement his answer to include his social media websites. Defendants' motion to compel as to this interrogatory is granted.
Interrogatory Nos. 17 and 18 ask Plaintiff to provide information regarding his medical providers. Plaintiff states he "cannot identify treating physicians" because he does not have medical insurance. "Generally, discovery requests seeking an employment discrimination plaintiff's medical and psychological records are held to be relevant as to both causation and the extent of plaintiff's alleged injuries and damages if plaintiff claims damages for emotional pain, suffering, and mental anguish."
Interrogatory No. 19 asks Plaintiff to list all current and former employees of Defendants with whom he has spoken outside of the grievance process or performance review since February 8, 2017. Plaintiff lists four people. This is a full and complete response to the interrogatory, and Defendants' motion to compel further response as to this interrogatory is denied.
Interrogatory No. 20 asks Plaintiff to identify every employee of Defendants with whom he rode to or from work, along with dates. Plaintiff provides names (though some names are incomplete), and no dates. Defendants' motion to compel as to this interrogatory is granted. Plaintiff shall supplement this response to fully answer the interrogatory.
For each request for production at issue, Plaintiff responds simply, "Plaintiff will produce relevant, non-privileged documents that are responsive to this request on a rolling basis as they become available." This is not an adequate response. Defendants rightly note that Plaintiff has a duty to supplement his discovery responses as he discovers additional documents and information under Fed. R. Civ. P. 26(e)(1)(A). He also has a duty to produce documents that are in his possession, custody, or control, as required by Fed. R. Civ. P. 34. The Court "cannot compel a party to produce documents that do not exist or that are not in that party's possession, custody, or control."
Plaintiff is therefore required to serve supplemental written answers to Defendants' requests for production, identifying all documents that he has produced in response and providing specific Bates ranges, pursuant to Fed. R. Civ. P. 34. If any of the requests ask for a document not in his possession, custody, or control, Plaintiff shall supplement his answer to so state.
Defendants ask the Court to compel Plaintiff to supplement his Rule 26 disclosures. Specifically, they take issue with his damages section. He states he seeks compensatory damages in the amount of $50,000, based upon his belief that his annual income was approximately $65,000 and he was terminated approximately $16,000 into the year 2017.
Rule 26(a)(1)(A)(iii) requires a party to disclose, without awaiting a discovery request, "a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based. . . ." Defendants' motion to compel as to Plaintiff's Rule 26 disclosures is granted. Plaintiff shall supplement his Rule 26 disclosures to include an actual computation of any and all categories of damages claimed.
