WESLEY McCONNELL,
Plaintiff,
v.
PIONEER HI-BRED INTERNATIONAL, INC.,
Defendant.
[1999 DSD 17]
United States District Court
For The District of South Dakota
Southern Division
CIV. 98-4060
ORDER
Scott G. Hoy, Sioux Falls, SD
Attorney for Plaintiff
Mark William Haigh, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD
Bruce G. Jones, Daniel G. Wilczek
Jennifer Haskin Will Faegre & Benson, Minneapolis, MN
Attorneys for Defendant.
Filed May 10, 1999
MARK MARSHALL, Magistrate Judge.
[¶1] This matter came before the court for hearing on April 28, 1999, on Plaintiff's Motion for Rule 26 Disclosures (Doc. 25). The Plaintiff appeared by his counsel of record, Scott G. Hoy, while the Defendant appeared by its counsel of record via telephone, Dan Wilczek and Jennifer Haskin Will. The court has considered the Plaintiff's motion, the Defendant's response, listened carefully to the arguments of counsel, and reviewed the entire file herein. Based upon that review, the court hereby enters the following ruling.
DISCUSSION
[¶2] Plaintiff contends that Defendant's initial disclosure of documents pursuant to F.R.Civ.P.26(a)(1)(B) was inadequate. Defendant's entire disclosure concerning documents is set forth to illuminate the court's ruling:
II. DOCUMENTS
The following categories of documents in the possession, custody or control of defendant may be relevant to the factual disputes identified above:
- Plaintiff's personnel records, including notes and files maintained by his supervisors and by Pioneer's human resources department
- Sales records for plaintiff's district
- Plaintiff's medical records
- Records of plaintiff's compensation
- Correspondence from plaintiff to the sales representatives in his district
- Correspondence from plaintiff to Pioneer management
- Correspondence among Pioneer managers regarding plaintiff
- Pioneer personnel policies and procedures
The originals and/or copies of some of these documents are maintained at Pioneer Hi-Bred International, Inc., 700 Capital Square, 400 Locust Street, Des Moines, IA 50309 or at the North Plains Sales Area Office, 1919 West 57th Street, Suite 101, Sioux Falls, SD 57108. In addition, copies of some of the documents are in the possession of counsel for defendant. The originals and/or copies of some of the documents in the same or similar categories are presumably also in the possession of plaintiff or his medical providers.
[¶3] The Defendant's disclosure complies with the letter of Rule 26(a)(1)(B). As the authors of Federal Practice and Procedure note:
The second type of disclosure is set forth in Rule 26(a)(1)(B), which requires disclosure of a copy, or a description by category and location, of any document relevant to disputed facts alleged with particularity in the pleadings.
As under Rule 26(a)(1)(A), the particularity requirement will be important here, and it should be interpreted in the same manner as under Rule 26(a)(1)(A). Making a copy of the pertinent materials available satisfies Rule 26(a)(1)(B), but a listing of the materials by category also suffices. The objective of such a listing is to enable the other parties to make informed decisions about which documents they should request be produced pursuant to Rule 34, and to enable them to frame document requests that will avoid squabbles about wording. But unlike witness designation there is no requirement that the listing set out a link between the documents or categories and the issues in the case. Moreover, according to the Advisory Committee the listing of documents does not waive objections to their production, even on grounds of relevance. It does seem, however, that any document the disclosing party says is relevant to disputed facts that are alleged with particularity in the pleadings, by making the disclosure pursuant to Rule 26(a)(1)(B), would bear some presumption of sufficient relevance to warrant production, given the low standard for relevance in discovery.
8 Wright, Miller & Marcus, Federal Practice & Procedure § 2053.
[¶4] The Plaintiff has also complained that the Defendant objected to a subsequent request for production of some of the documents identified by category in the disclosure on the basis of relevance. The Plaintiff has not, however, moved to compel the production of those documents at this time. The mere assertion of the relevancy objection is not enough allow the court to impose sanction under F.R.Civ.P. 37(b)(2). As the Advisory Committee noted "[t]he disclosing party does not, by describing documents under subparagraph (B), waive its right to object to production on the basis of privilege or work product protection, or to assert that the documents are not sufficiently relevant to justify the burden or expense of production." Advisory Committee Notes, 146 F.R.D. at 631.
CONCLUSION
[¶5] The Federal Rules of Civil Procedure specifically allow a party to make an initial disclosure of documents by reference to categories, as the Defendant has done in this case. A good faith description of documents by category thus provides no basis for a motion to compel Rule 26 disclosures and Plaintiff's motion must, therefore, be DENIED.
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