Lynette Brown, Jan Anderson and Dorothy Anderson,
SANDALS RESORTS INTERNATIONAL,
Sandals Negril, Ltd., and Unique Vacations, Inc.,
[2000 DSD 14]
United States District Court
District of South DakotaSouthern Division
MEMORANDUM OPINION AND ORDER
Roger W. Damgaard, James E. Moore, William G. Beck
Woods, Fuller, Shultz & Smith, Sioux Falls, SD
Attorneys for Plaintiffs
David B. Newman, Cooperman, Levitt, New York, NY 10022
Kent Cutler, Cutler, Donohoe & Mickelson, Sioux Falls, SD
Attorneys for Defendants
Dated Feb 10, 2000
Mark F. Marshall, United States Magistrate Judge
[¶1] This matter came before the court on the Plaintiffs Second Motion to Compel Responses to Discovery and for Sanctions (Doc. 30). Because no party has requested oral argument pursuant to Local Rule 7.1, the court will decide the motion on the basis of the parties written submissions.
[¶2] By their motion the plaintiffs seek an order (1) requiring all defendants to serve complete responses to plaintiffs interrogatories numbered 13, 14, and 20; (2) requiring Sandals Resorts International to produce its license agreement as requested in plaintiffs request for production number 5; (3) requiring Sandals Negril, Ltd. to produce its management agreement as requested in plaintiffs request for production number 5; (4) requiring Sandals Negril, Ltd. to serve a complete response to plaintiffs interrogatory number 15; and (5) requiring Sandals Negril, Ltd. to serve responses to plaintiffs interrogatories numbered 17 and 18.
[¶3] The threshold requirement of discoverability is whether the information sought is "relevant to the subject matter involved in the pending litigation." Shelton v. American Motors, 805 F2d 1323, 1326 (8th Cir. 1986). Of course, to be discoverable, the information "need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." F.R.Civ.P. 26(b)(1). The standard, therefore, is widely recognized as one that is necessarily broad in its scope, in order to allow the parties essentially equal access to the operative facts. See, Hofer v. Mack Trucks, Inc., 981 F2d 377, 382 (8th Cir. 1992); Leighr v. Beverly Enterprises-Kansas, Inc., 164 FRD 550 (D.Kan. 1996); Cox v. E.I. DuPont de Nemours & Co., 38 FRD 396, 398 (D.S.C. 1965). Notwithstanding the liberality of discovery, however, it is not without bounds. The Eighth Circuit Court of Appeals has observed:
[T]his often intoned legal tenet should not be misapplied as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and produce a variety of information which does not reasonably bear upon the issues in the case.
Hofer v. Mack Trucks, Inc., 981 F2d at 380.
[¶4] Therefore, despite the liberality of discovery, "we will remain reluctant to allow any party to roam in the shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so." Onwuka v. Federal Express Corp., 178 FRD 508, 516 (D.Minn. 1997); Carlson Cos., Inc. v. Sperry & Hutchinson Co., 374 FSupp 1080, 1089 (DC Minn. 1974).
[¶5] Even when dealing with requests for relevant information, the rules recognize that discovery may be limited when the benefits to be obtained are outweighed by the burdens and expenses involved. Accordingly to F.R.Civ.P 26(b)(2), courts are directed to limit discovery upon a determination that:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issue at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
These considerations are not talismanic. Rather, they are to be applied in a commonsense and practical manner. See, In Re: Convergent Tech. Securities Litigation, 108 FRD 328, 331 (DC Cal. 1985).
INTERROGATORY NO. 13
[¶6] Interrogatory No. 13 states:
For each Defendant and for Gorstew, Ltd., list each owner or shareholders name, address, telephone number, and share of ownership.
[¶7] Each defendant offered the same answer and objection to this interrogatory. That response is as follows:
Responding defendant objects to this interrogatory on the grounds that it is vague, irrelevant, burdensome, overbroad, and not designed to lead to the discovery of evidence admissible at trial. Without waiving these objections, responding defendant states that it has no ownership interest in any of the other defendants and none of the defendants have any ownership interest in the responding defendant.
[¶8] The court grants the Plaintiffs Motion to Compel as to each defendant. Interrogatory No. 13 is calculated to lead to the discovery of admissible evidence. The response that each defendant gave was to a question not posed in the interrogatory. As such, the defendants answers are, at best, evasive.
[¶9] The information sought is relevant, or reasonably calculated to lead to the discovery of admissible evidence because it seeks the identity of the owners of the various defendants. While the defendant entities may not have ownership interests in each other it is possible that various individuals own interests in more than one of the defendants.
INTERROGATORY NO. 14
[¶10] Interrogatory No. 14 states:
For each Defendant and for Gorstew, Ltd., list each officer or directors name, title, address, telephone number, and a brief description of his or her job duties as those duties relate to the property and the incident.
[¶11] Sandals Resorts answered Interrogatory No. 14 as follows:
Responding defendant objects to this interrogatory on the grounds that it is vague, irrelevant, burdensome, overbroad and not designed to lead to the discovery of evidence admissible at trial. Without waiving these objections, responding defendant states that it has no knowledge as it relates to the other defendants other than Gorstew, Ltd. owns the property and Sandals Negril, Ltd. manages the property. As to the responding defendant, its employee have no duties as they relate to the incident and any other responsibilities are as set forth in Interrogatory No. 12.
[¶12] The court grants the Plaintiffs Motion to Compel as to Sandals Resorts. In its answers it failed to identify its officers and directors as called for in the interrogatory. Moreover, Sandals Resorts answer to Interrogatory No. 12 does not answer the interrogatory either.
[¶13] Defendant Sandals Negril interposed the same objections but responded that Baldwin Powell is the general manager and oversees the day-to-day operations of the hotel known as Sandals Negril.
[¶14] Again the court grants the Plaintiffs Motion to Compel as to this interrogatory and Defendant Sandals Negril. Sandals Negril has failed to identify its officers and directors as called for in the interrogatory.
[¶15] Unique Vacations interposed the same objections as the other two defendants to this interrogatory. Additionally, Unique Vacations answered Interrogatory No. 14 as follows:
Without waiving these objections, responding defendant states that it has no knowledge as it relates to the other defendants other than, upon information and belief that Gorstew, Ltd. and Sandals Negril, Ltd. are located in Kingston, Jamaica. As to the responding defendant, its employee have no duties as they relate to the incident and any other responsibilities are as set forth in response to Interrogatory No. 12.
[¶16] Unique Vacations response does not answer the interrogatory as posed. Accordingly, the court grants the Plaintiffs Motion to Compel as the court believes the interrogatory calls for relevant information or is reasonably calculated to lead to the discovery of admissible evidence. As with each of the defendants this interrogatory seeks the identity of the defendant corporations officers and directors. As such, the court believes it seeks appropriate information.
INTERROGATORY NO. 15
[¶17] Interrogatory No. 15 states:
State the following information regarding the coconut palm tree which fell on the Plaintiffs Bill Brown and Jan Anderson ("the tree"):
(a) Whether the tree grew naturally in the place where it stood before it fell or whether the tree had been transplanted there;
(b) If transplanted, the name, address, telephone number, and relationship to each Defendant of any person(s) or entity(-ies) involved in choosing the tree, choosing the place where the tree was to be transplanted, choosing the method of transplanting the tree, and transplanting the tree;
(c) If transplanted, describe how and why the tree was chosen, how and why the placement of the tree was chosen, how the tree was transplanted, and the age of the tree upon being transplanted;
(d) A detailed description of how the tree was maintained, such as how and how often the tree was watered, pruned, and inspected for signs of disease or injury, and the name, address, telephone number, and employer of each person who was at any time responsible for or participated in the maintenance of the tree;
(e) The age of the tree when it fell;
(f) A description of what happened to the tree after it fell, including the name, address, employer, and occupation of each and every person who took some action with respect to the tree after it fell;
(g) The current location of the tree; and
(h) If the tree was not preserved, the reason or reasons why the tree was not preserved, and the name, address, telephone number, occupation, and employer of each person or entity who played a part in the decision not to preserve the tree.
[¶18] Defendant Sandals Negril answered some, but not all of this interrogatory. For example, in response to the request for "a description of what happened to the tree after it fell, including the name, address, employer, and occupation of each and every person who took some action with respect to the tree after it fell" defendant merely answered "see documents produced as part of the initial disclosure." Such an answer is evasive and not responsive to the plaintiffs' interrogatory. Accordingly, Defendant Sandals Negril is ordered to answer fully subpart (f) of Interrogatory No. 15.
INTERROGATORY NO. 17
[¶19] Interrogatory No. 17 states:
The name, address, and telephone number of each guest who was staying at the property on the day of the incident.
[¶20] Defendant Sandals Negril has answered Interrogatory No. 17 by repeating its objection that the interrogatory is "vague, overbroad, burdensome, irrelevant and not designed to lead to the discovery of evidence admissible at trial."
[¶21] Additionally, Sandals Negril stated that the "hotel at issue has in excess of two hundred and thirty (230) rooms. Since it is a couples only resort, assuming occupancy of eighty-five percent (85%), there would have been approximately three hundred and ninety (390) guests registered."
[¶22] While there are a considerable number of guests registered at the hotel, the court concludes that each guest is a potential witness. The extent of each guests knowledge cannot be determined without inquiry of that guest. Accordingly, the court grants the Plaintiffs Motion to Compel as to Interrogatory No. 17 with respect to Defendant Sandals Negril. As the authors of Wright and Miller have noted "[i]nterrogatories are a simple method of obtaining the names and addresses of persons having knowledge of pertinent facts . . .." 8A, Wright, Miller & Marcus, Federal Practice & Procedure § 2163. The plaintiffs use of these interrogatories is, therefore, appropriate, while the defendants response is not.
INTERROGATORY NO. 18
[¶23] Interrogatory No. 18 states:
The name, address, telephone number, and employer of each person who was working at the property on the day of the incident. For each such worker, please provide a brief description of the role he or she played in this incident and the knowledge he or she possesses regarding this incident.
[¶24] Defendant Sandals Negril objects to Interrogatory No. 18 on the grounds that it is "vague, overbroad, burdensome, irrelevant and not designed to lead to the discovery of evidence admissible at trial." The court overrules Sandals Negrils objection and grants the Plaintiffs Motion to Compel on this interrogatory. The interrogatory is simply an effort to obtain the names and addresses of employees who may have knowledge of pertinent facts. It is, therefore, an appropriate interrogtory.
INTERROGATORY NO. 20
[¶25] Interrogatory No. 20 states:
If it will be claimed that the United States District Court for the District of South Dakota is not the proper venue or forum for this action, provide a separate description of each Defendants contacts with the State of South Dakota in the past 10 years, such as any advertisements (print, television, radio, billboard, Internet or otherwise) run in South Dakota or elsewhere that could be seen in South Dakota; the name, address, and telephone number of each South Dakotan who has purchased goods or services from any Defendant; a description of the relationship between any Defendant and any business operating in South Dakota (such as any "Certified Sandals Specialists"); and a description of each visit made to the State of South Dakota by any employee within the scope of his or her employment with any Defendant. For each visit by an employee (such as Laura Sucharski, Local Sales Manager for South Dakota, and Alice McCalla, Regional Sales Director for the Midwest), provide the employees name, title, address, telephone number, and employer; the dates of each visit; the purpose of each visit; the business transacted during each trip; and the name, address, and telephone number of each business or person with whom the employee met on each trip.
[¶26] All of the defendants have objected to Interrogatory No. 20 as being a "contention interrogatory." However, Defendants Sandals Resorts and Sandals Negril answered the interrogatory stating that neither has had any contact with the State of South Dakota. The court deems these answers sufficient.
[¶27] However, Defendant Unique Vacations went on to assert, in addition to the contention interrogatory objection, that the interrogatory was "overbroad, burdensome, and not designed to lead to the discovery of evidence admissible at trial. Without waiving these objections, responding defendant states it has no record of advertisements for Sandals Resorts which may have been seen in South Dakota or the number of occasions on which Ms. Sucharski or Ms. McCalla may have visited South Dakota." Unique Vacations did not, however, answer the interrogatory as posed.
[¶28] There is a split of authority on the propriety of contention interrogatories. See, generally, Wright, Miller & Marcus, Federal Practice and Procedure, § 2167. The United States Supreme Court has noted that discovery is not limited to "the merits of a case, for a variety of fact-oriented issues may arise during the litigation that are not related to the merits." Oppenheimer Fund, Inc. v. Sanders, 437 US 340, 351, 98 SCt 2380, 2389-90, 57 LEd2d 253 (1978). Moreover, the court explained in a footnote how issues not pertinent to the merits might nonetheless be legitimate subjects of discovery: "For example, where issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues." Id., 437 US at 352 n.13.; 98 SCt at 2389-90.
[¶29] In this case the contention interrogatories, on the question of venue, appear to serve a useful purpose in narrowing the issues before the court. See, generally, Ford v. Phillips Electronics Instruments Co., 82 FRD 359, 361 (DC Pa. 1979); Anderson v. United Airlines, Inc., 49 FRD 144, 148 (DC NY 1969). Thus, the defendants objections to these interrogatories as "contention interrogatories" are hereby overruled and each defendant is ordered to answer the interrogatory fully.
REQUEST FOR PRODUCTION NO. 5
[¶30] Request for Production No. 5 states:
Copies of all written agreements between any Defendant and any other Defendant and between any Defendant and Gorstew, Ltd. (including, but not limited to, any operating agreement, lease, distributorship or franchise agreement) which are in effect or were in effect at any time from the end of calendar year 1996 through the present date.
[¶31] Sandals Resorts and Unique Vacations have refused to produce documents in the absence of a confidentiality stipulation. However, neither Sandals Resorts nor Unique Vacations have applied to this court for a protective order. The only justification for the failure to produce is that "the license agreement is between two foreign corporations and defendants do not want any competitors to become aware of the terms and conditions, especially financial, upon which they permit others to use their valuable assets." Affidavit of David B. Newman in Opposition to Motion to Compel, ¶ 29.
[¶32] As the authors of Wright & Miller note:
It is for the party resisting discovery to establish, in the first instance, that the information sought is within the protection of the rule.
Wright, Miller & Marcus, Federal Practice and Procedure, § 2043. See, also, Coca-Cola Bottling Co. v. Coca-Cola Co., 107 FRD 288 (DC Del. 1985).
[¶33] The defendants have failed to carry their burden of proof. Accordingly the court grants the Plaintiffs Motion to Compel Production of Documents No. 5, subject only to whatever additional showing defendants may make on why the documents sought should be the proper subject of a protective order.
[¶34] The Plaintiffs Motion to Compel (Doc. 30) is hereby granted in part and denied in part as reflected in the body of this order, and defendants shall provide full and complete responses to such discovery within 15 days of the entry of this order.
[¶35] In addition to an order compelling discovery, the Plaintiffs prayed for sanctions under Rule 37. As the Tenth Circuit Court of Appeals has noted:
The administration of the rules lies necessarily within the province of the trial court with power to fashion such orders as may be deemed proper to vouchsafe full discovery for the just, speedy and inexpensive determination of the lawsuit.
Robinson v. Transamerica Ins. Co., 368 F2d 37, 39 (10th Cir. 1966).
[¶36] Some of defendants responses were not substantially justified, such as those calling for the identity of the owners or shareholders of the various defendants and witnesses to the accident as in Interrogatory Nos. 13, 14, 17 and 18. Indeed, these responses seem designed to obfuscate the facts and thwart the discovery process. The court believes sanctions may be appropriate and hereby directs the plaintiffs to subject an affidavit outlining its costs and expenses in making the motion within fifteen (15) days of the date of this order.
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