ROBERT B. JONES, JR., Magistrate Judge.
This matter is before the court on two discovery-related motions: (1) Plaintiffs' motion to compel [DE-117], to which Defendants Ronnie Britt, Clement Burney, Lafayette Hall, Charles Holland, Kenneth Jones, Jeffery Marks, Eugene Murphy, Henry Outlaw, Nelson Sanchez, and William M. Ward (collectively "Defendants") filed a response [DE-125], Plaintiffs filed a reply [DE-126], and Defendants filed a sur-reply at the direction of the court [DE-132]; and (2) Defendants' motion to compel [DE-136], to which Plaintiffs filed a response [DE-144]. The issues have been fully briefed, and the motions are ripe for decision. For the reasons that follow, Plaintiffs' motion is allowed in part and denied in part and Defendants' motion is denied.
Plaintiffs, who were inmates in the custody of the State of North Carolina and were housed at Sampson County Correctional, filed this action alleging claims for violation of 18 U.S.C. § 1962(c), 42 U.S.C. §§ 1983, 1985, and 1988, and the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, constructive fraud, civil conspiracy, intentional and negligent infliction of emotional distress, negligent employment and supervision, negligence, and punitive damages. [DE-45]. Plaintiffs allege that Defendants Anthony Jackson, David Jones, Officer Hudson, Eugene Murphy; Ronnie Britt, William M. Ward, and Nelson Sanchez conspired to systematically abuse and humiliate Plaintiffs in order to intimidate them for the purpose of gaining their compliance smuggling contraband into the prison. Id. Plaintiffs alleged that Defendants Kenneth N. Jones Jr., Sergeant Wilson, Henry Outlaw, Clement Burney, Charles Holland, Warden Lafayette Hall, and Jeffery Marks were aware or should have been aware of the conduct. Id.
The court initially set a discovery deadline of June 7, 2017 [DE-104], which it later extended to September 8, 2017 [DE-114]. A further extension of the discovery deadline until October 8, 2017, was allowed for the limited purpose of conducting depositions. [DE-128, -131]. On April 30, 2017, Plaintiffs served their First Set of Interrogatories and Requests for Production of Documents. [DE-117-1, -117-2]. Defendants, after receiving an extension [DE-116], responded on June 30, 2017. [DE-118-1]. Defendant Jackson did not respond to the discovery requests.
The Federal Rules of Civil Procedure enable parties to obtain information by serving requests for discovery on each other, including interrogatories and requests for production of documents. See generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:
Fed. R. Civ. P. 26(b)(1).
Rule 37 of the Federal Rules of Civil Procedure provides that "[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection" if a party fails to answer an interrogatory under Rule 33 or fails to produce or make available for inspection requested documents under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). For purposes of a motion to compel, "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). However, the Federal Rules also provide that
Fed. R. Civ. P. 26(b)(2)(C). Additionally, "the court has `substantial discretion' to grant or deny motions to compel discovery." English v. Johns, No. 5:11-CT-3206-D, 2014 WL 555661, at *4 (E.D.N.C. Feb. 11, 2014) (quoting Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995)). Finally, the party seeking the court's protection from responding to discovery must make a particularized showing of why discovery should be denied, and conclusory or generalized statements fail to satisfy this burden as a matter of law. See Carefirst of Md, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir. 2003); see also Silicon Knights, Inc. v. Epic Games, Inc., 917 F.Supp.2d 503, 533 (E.D.N.C. 2012) (allowing motion to compel where, among other things, the responding party relied on boilerplate objections and "failed to articulate any specific objection to any particular interrogatory or request for production, and therefore has waived any legitimate objection it otherwise could have raised.") (citation omitted); Mainstreet Collection v. Kirkland's, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010) (recognizing that boilerplate objections are not proper); Hy-Ko Prods. Co. v. Hillman Group, Inc., No. 5:09-MC-32, 2009 WL 3258603, at *2 (E.D.N.C. Oct. 8, 2009) ("In the usual instance, objections to discovery which simply recite stock phrases are not colorable. Generally, the mere cry of burdensomeness or irrelevance without any statement in support of these objections is disfavored by the court.").
Plaintiffs seek an order compelling Defendants Britt, Burney, Hall, Holland, K. Jones, Marks, Murphy, Outlaw, Sanchez, Ward, and Jackson to fully respond to Plaintiffs' First Set of Interrogatories and Requests for Production. [DE-117]. Plaintiffs contend that Defendants Britt, Burney, Hall, Holland, Kenneth Jones, Marks, Murphy, Outlaw, Sanchez, and Ward provided incomplete or unresponsive answers by asserting general objections without citing the grounds, asserting improper grounds, failing to provide a privilege log, asserting a reservation of the right to supplement but providing no subsequent supplementation, providing inadequate answers to interrogatories, and providing no responsive documents. [DE-118] ¶ 4. Plaintiffs' counsel, by letter of June 29, 2017, informed Defendants' counsel of the perceived deficiencies and suggested a phone conference to discuss the issues. [DE-117-3]. Defendants' counsel did not respond,
In response to Plaintiffs' motion, Defendants indicated they had supplemented their responses and asked the court to deny Plaintiffs' motion as moot. [DE-125]. In a reply, filed without leave of court,
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
Fed. R. Civ. P. 33(d) (emphasis added). In other words, Defendants may not simply point to the 10,000 plus documents produced by DPS and expect Plaintiffs to dig out the interrogatory answers. The Federal Rules require that each interrogatory be answered "separately and fully." Fed. R. Civ. P. 33(b)(3). This requirement has been interpreted to exclude answering by reference to other documents such as pleadings, depositions, or other discovery responses. See Anderson v. Caldwell Cnty. Sheriff's Office, No. 1:09-CV-423, 2011 WL 2414140, at *4 (W.D.N.C. June 10, 2011) (citations omitted). If Defendants wish to invoke the option to produce business records (or to rely on business records produced by DPS) in response to Plaintiffs' interrogatories, they must comply with Rule 33(d).
i. Interrogatory No. 2 states:
[DE-117-1]. Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Marks, Outlaw, Sanchez, and K. Jones each responded: "Objection. Without waiver, Defendant [] states that at all relevant times herein, there is sufficient insurance coverage in effect to cover any foreseeable judgment in this matter." [DE-118-1]. This response lacks any specific objection and does not answer the interrogatory as propounded. Accordingly, Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Marks, Outlaw, Sanchez, and K. Jones shall supplement their responses to fully answer Interrogatory No. 2 by no later than
ii. Interrogatory No. 3 states:
[DE-117-1]. Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Marks, Outlaw, Sanchez, and K. Jones each responded: "Objection. Overly broad, unduly burdensome. Without waiver, Defendant [] states the Plaintiffs and co-Defendants listed in the style of the case likely have information relating to the facts or claims alleged in the Complaint. Discovery is ongoing, and Defendant [] reserves the right to supplement this answer at a later date." [DE-118-1]. The objections stated are boilerplate and insufficient to carry the burden of demonstrating why the discovery sought should be denied. Further, the information sought here is routine and should be readily available to Defendants. The response does not fully answer the interrogatory, which addresses individuals with knowledge relating to these Defendants' Answers, as well as the facts alleged in the Complaint, and requests contact information. To respond by referring Plaintiffs to the case caption is effectively a failure to respond. Accordingly, Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Marks, Outlaw, Sanchez, and K. Jones shall supplement their responses to fully answer Interrogatory No. 3 by no later than
iii. Interrogatory No. 4 states:
[DE-117-1]. Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Marks, Outlaw, Sanchez, and K. Jones each responded: "Objection. Not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Discovery is ongoing, and Defendant [] reserves the right to supplement this answer at a later date." [DE-118-1]. The objection lacks merit. The amendments to the Federal Rules of Civil Procedure that went into effect in December 2015 deleted the "reasonably calculated" language from Rule 26. The rule now provides that "parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case" and "[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1). The court finds the request to be within the scope of discovery. Accordingly, Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Marks, Outlaw, Sanchez, and K. Jones shall supplement their responses to fully answer Interrogatory No. 4 by no later than
iv. Interrogatory No. 5 states:
[DE-117-1]. Defendants Hall, Ward, Burney, Marks, Outlaw, Sanchez, and K. Jones responded: "Objection to the extent this interrogatory seeks the identification of documents protected by work product or attorney-client privileges. Further, this interrogatory is overly broad, unduly burdensome, and not reasonably limited in time or scope." [DE-118-1]. Defendant Murphy responded with the above objection, but also added that "[w]ithout waiver, Defendant Murphy states that he is in possession of a copy of the statement he wrote once these allegations became known and I had spoken to federal attorneys about [m]y involvement with the road squad during that time." Id Defendant Holland responded with the above objection, but also added that "[w]ithout waiver, Defendant Holland states that he is in possession of handwritten notes taken from interviews that were conducted of Officers Anthony Jackson and David Jones, Incident Report #4345-11-00276." Id
It is unclear from the response whether Defendants Hall, Ward, Burney, Murphy, Holland, Marks, Outlaw, Sanchez, K. Jones have withheld responsive documents on the basis of privilege. If so, they must provide a privilege log in conformity with Fed. R. Civ. P. 26(b)(5), and if not they should so clarify. The other objections are boilerplate and insufficient to carry the burden of demonstrating why the discovery sought should be denied. Furthermore, this type of discovery request is routine. Accordingly, Defendants Hall, Ward, Burney, Marks, Outlaw, Sanchez, and K. Jones shall supplement their responses to fully answer Interrogatory No. 5 and/or to provide a privilege log, as necessary, by no later than
v. Interrogatory No. 7 states:
[DE-117-1]. Defendants Hall, Britt, Ward, Burney, Murphy, Marks, Outlaw, Sanchez, and K. Jones responded: "Objection. Overly broad, unduly burdensome, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Discovery is ongoing, and Defendant[] reserves the right to supplement this answer at a later date." [DE-118-1]. Defendant Holland responded with the above objection, but also added that "[w]ithout waiver, Defendant Holland states this is the only litigation he has been involved in." Id. The objections lodged are boilerplate and insufficient to carry the burden of demonstrating why the discovery sought should be denied. Furthermore, this type of discovery request is routine and the information should be readily available to each Defendant. Despite Defendant Holland's objections, he responded to the interrogatory and the court finds the response sufficient. However, the responses of Defendants Hall, Britt, Ward, Burney, Murphy, Marks, Outlaw, Sanchez, and K. Jones are insufficient and they shall supplement their responses to fully answer Interrogatory No. 7 by no later than
vi. Interrogatory No. 8 states:
[DE-117-1]. Defendant Hall responded: "Objection. Overly broad, unduly burdensome, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Defendant Hall states that discovery is ongoing, and he reserves the right to supplement this answer at a later date." [DE-118-1]. The objections lodged are boilerplate and insufficient to carry the burden of demonstrating why the discovery sought should be denied. Furthermore, this type of discovery request is routine and the information sought should be readily available to Defendant Hall. Accordingly, the response of Defendants Hall is insufficient and he shall supplement his response to fully answer Interrogatory No. 8 by no later than
vii. Interrogatory No. 9 propounded to Defendant Hall states:
[DE-117-1]. Defendant Hall responded that "discovery is ongoing, and he reserves the right to supplement this answer at a later date." [DE-118-1]. Defendant Hall lodged no objection to this request and the information sought should be within his knowledge and readily available to him. Defendant Hall should have fully responded to this interrogatory within the time allowed or requested an extension of time if needed. Accordingly, Defendant Hall's response is insufficient and he shall supplement his response to fully answer Interrogatory No. 9 by no later than
viii. Interrogatory No. 9 propounded to Defendants Britt, Marks, Outlaw, and Sanchez states:
[DE-117-1]. Defendant Britt responded: "Objection. Without waiver, Defendant Britt states that he worked a couple of times as lead officer on the road squad from January 2011 through December 31, 2012." [DE-118-1]. Defendant Marks responded that "discovery is ongoing, and he reserves the right to supplement this answer at a later date." Id. Defendant Outlaw responded: "Objection. Without waiver, Defendant Outlaw states that he checked inmates out of intake on to the road squad bus and when they returned, he checked them back in." Id Defendant Sanchez responded: "Objection. Without waiver, Defendant Sanchez states he was never part of the road crew. As an officer assigned to the yard, he was tasked with searching inmates entering and exiting the compound." Id.
The objections of Defendants Britt, Outlaw, and Sanchez are conclusory and insufficient to carry the burden of demonstrating why the discovery sought should be denied. Additionally, their substantive responses do not fully answer the interrogatory and, thus, are insufficient. Defendant Marks lodged no objection to this request and the information sought should be within his knowledge and readily available to him. Defendant Marks should have fully responded to this interrogatory within the time allowed or requested an extension of time if needed and, thus, his response is insufficient. Accordingly, Defendants Britt, Marks, Outlaw, and Sanchez shall supplement their responses to fully answer Interrogatory No. 9 by no later than
ix. Interrogatory No. 10 states:
[DE-117-1]. Defendant Britt responded: "Objection. This request seeks information that is neither relevant nor likely to lead to the discovery of admissible evidence. Without waiver, Defendant Britt states that he does not know the circumstances surrounding Superintendent Lafayette Hall's departure from the NCDPS." [DE-118-1]. Defendant Marks responded that "discovery is ongoing, and he reserves the right to supplement this answer at a later date." Id. Defendant Ward responded: "Objection. Not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, I am only aware that he had enough years with the department and was eligible for retirement." Id
The objections of Defendants Britt and Ward as to relevance are overruled, and their substantive responses do not fully answer the interrogatory and, thus, are insufficient. Defendant Marks lodged no objection to this request and the information sought should be within his knowledge and readily available to him. Defendant Marks should have fully responded to this interrogatory within the time allowed or requested an extension of time if needed and, thus, his response is insufficient. Accordingly, Defendants Britt, Marks, and Ward shall supplement their responses to fully answer interrogatory No. 10 by no later than
x. Interrogatory No. 11 states:
[DE-117-1]. Defendants Hall, Burney, Holland, Marks, K. Jones, Britt, Ward, Murphy, and Sanchez each responded: "Objection. Not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Defendant [] states [he is] not aware of any violation of NCDPS policy at any relevant time herein other than the alleged misconduct in this case committed by Officers Anthony Jackson and David Jones." [DE-118-1]. Defendant Outlaw responded: "Objection. Not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Defendant Outlaw states I do not know as I was not there. I was never on the road squad, and I am not [a road] squad supervisor." Id The objection raised is not proper, as explained above, and the substantive responses do not fully answer the interrogatory. Accordingly, Defendants Hall, Burney, Holland, Marks, K. Jones, Britt, Ward, Murphy, Sanchez, and Outlaw shall supplement their responses to fully answer Interrogatory No. 11 by no later than
xi. Interrogatory No. 12 propounded to Defendant Hall states:
[DE-117-1]. Defendant Hall responded that "discovery is ongoing, and he reserves the right to supplement this answer at a later date." [DE-118-1]. Defendant Hall lodged no objection to this request and the information sought should be within his knowlydge and readily available to him. Defendant Hall should have fully responded to this interrogatory within the time allowed or requested an extension of time if needed and, thus, his response is insufficient. Accordingly, Defendant Hall shall supplement his response to fully answer Interrogatory No. 12 by no later than
xn. Interrogatory No. 12 propounded to Defendants Britt, Ward, Murphy, Marks, Outlaw, and Sanchez, and Interrogatory No. 13 propounded to Hall, Burney, Holland, and K. Jones state:
[DE-117-1]. Defendants Britt, Ward, Murphy, Marks, Outlaw, Sanchez, Hall, Burney, Holland, and K. Jones each responded: "Objection. Not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Defendant [] does not agree to disclose any personal financial information, including financial institution or account number, for any of his own personal bank accounts." [DE-118-1]. In the letter outlining Plaintiffs' perceived deficiencies in Defendants' discovery response, Plaintiffs indicated they would be agreeable to Defendants providing "appropriately redacted bank statements for the requested date range," which would be subject to the protective order already in place. [DE-117-3].
The objection lodged is not proper, as explained above, and the answers are not responsive to the interrogatory. Plaintiffs have alleged that Defendants were engaged in, or should have been aware of, a contraband smuggling operation from which certain Defendants reaped substantial monetary gain. Compl. [DE-45] ¶¶ 6-9, 65-77. Accordingly, the court finds that Interrogatory No. 12 seeks information within the scope of discovery, and Defendants Britt, Ward, Murphy, Marks, Outlaw, Sanchez, Hall, Burney, Holland, and K. Jones shall either fully respond to the interrogatory or produce responsive, appropriately redacted bank statements by no later than
xiii. Interrogatory No. 13 propounded to Defendant Marks states:
[DE-117-1]. Defendant Marks responded: "Objection. Not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Defendant Marks states that discovery is ongoing, and he reserves the right to supplement this answer at a later date." [DE-118-1]. Defendant Marks' objection is not proper, as explained above, and the information sought should be within his knowledge and readily available to him. Defendant Marks should have fully responded to this interrogatory within the time allowed or requested an extension of time if needed and, thus, his response is insufficient. Accordingly, Defendant Marks shall supplement his response to fully answer Interrogatory No. 13 by no later than
xiv. RFP No. 5 seeks: "Any and all documentation, written or electronic, identified in or related to your responses to interrogatory 5, to the extent not produced in response to prior requests." [DE-117-1]. Defendant Holland responded: "Objection to the extent this request seeks the identification of documents protected by work product or attorney-client privileges. Without waiver, Defendant Holland will supplement this response with handwritten notes taken from interviews that were conducted of Officers Anthony Jackson and David Jones, Incident Report #4345-11-00276." [DE-118-1]. Defendant Murphy responded: "Objection to the extent this request seeks the identification of documents protected by work product or attorney-client privileges. Without waiver, Defendant Murphy will supplement this response with handwritten notes." Id To the extent Defendants Holland and Murphy have not already produced the handwritten notes identified in their responses, they shall do so by no later than
xv. RFP No. 12 seeks:
[DE-117-1]. Defendants Britt, Hall,
xvi. RFP No. 15 seeks:
[DE-117-1]. Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Outlaw, Sanchez, K. Jones, and Marks responded: "Objection to the extent this request seeks information regarding any cellular telephone accounts paid for and maintained by NCDPS. Further, this request is not reasonably calculated to lead to the discovery of admissible evidence. Without waiver, Defendant [] states that personal cellular phones were not allowed to be used by correctional officers while working the road squad." [DE-118-1]. It is unclear why the request, to the extent it seeks information regarding accounts paid for and maintained by DPS, is objectionable, and the fact that personal phones were not allowed to be used does not mean that they were not used. The objections are insufficient to carry the burden of demonstrating the discovery sought should be denied. The court finds the request to be within the scope of discovery, and Defendants Hall, Britt, Ward, Burney, Murphy, Holland, Outlaw, Sanchez, K. Jones, and Marks shall produce any responsive documents within their possession, custody, or control, by no later than
xvn. All Interrogatories and RFPs propounded to Defendant Jackson.
Defendant Jackson failed to respond to Plaintiffs' discovery requests or the instant motion to compel and, thus, has failed to comply with his discovery obligations. See Loftin v. Nationwide Mut. Ins. Co., No. 7:09-CV-118-F, 2010 WL 4117404, at *2 (E.D.N.C. Oct. 18, 2010). Further, having reviewed Plaintiffs' discovery requests, the court finds that they are within the permissible scope of discovery. Accordingly, Plaintiffs' motion to compel is allowed as to Defendant Jackson.
By not responding to Plaintiffs' discovery requests, Defendant Jackson has waived any objections as to their relevance or scope. See Fed. R. Civ. P. 33(b)(4) ("Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure."); Loftin, 2010 WL 4117404, at *3. However, the court will permit Defendant Jackson to claim privilege (including work product protection) in responding to the discovery requests. However, to do so he must expressly assert it in response to the particular discovery request involved and serve with the responses a privilege log in conformity with Rule 26(b)(5)(A), and a failure to timely comply shall be deemed a waiver of the privilege otherwise claimed. Therefore, subject to valid claims of privilege, Defendant Jackson shall serve on Plaintiffs by no later than
Defendants seek an order compelling Plaintiffs to respond to Defendants' First Set of Interrogatories and Requests for Production of Documents. [DE-136]. Defendants assert they served the written discovery at issue on August 10, 2017, Plaintiffs failed to respond to the discovery requests, and Plaintiffs' counsel failed to respond to Defendants' counsel's November 1, 2017 letter regarding the status of Plaintiffs' responses.
The Federal Rules of Civil Procedure provide that a responding party has 30 days to provide a written response after being served with a request for production or an interrogatory. Fed. R. Civ. P. 33(b)(2); 34(b)(2). Local Civil Rule 26.l(b) provides that "[a]ll discovery shall be served so as to allow the respondent sufficient time to answer prior to the time when discovery is scheduled to be completed." Thus, while a discovery request might be served prior to the close of discovery, it is untimely if it does not allow for a response prior to the discovery deadline.
Here, the court's May 23, 2017 order extending the discovery deadline to September 8, 2017, expressly stated that "[a]ll discovery shall be served in time to be completed by this date." [DE-114].
For the reasons stated above, Plaintiffs' motion is allowed in part and denied in part [DE-117], and Defendants' motion is denied [DE-136].
SO ORDERED.
