MEMORANDUM OPINION
This matter comes before the Court on plaintiffs’ Motion [91] to Compel defendants’ responses to Plaintiffs’ First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs’ First Set of Interrogatories, and for expenses pursuant to Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure and defendants’ Motion [95] to Compel Discovery. Upon consideration of plaintiffs’ motion [91], defendants’ opposition [97], plaintiffs’ reply [101], and defendants’ motion [95], plaintiffs’ opposition [98] and defendants’ reply [99], and the entire record herein, plaintiffs’ motion [91] will be GRANTED IN PART and DENIED IN PART and defendants’ motion [95] will be DENIED.
I. BACKGROUND
Plaintiffs filed the present suit on July 21, 2005, alleging that defendant District of Columbia (“District”) failed in its duty to provide a free and appropriate public education (“FAPE”) to children ages three through five living in the District. Specifically, plaintiffs allege that the District has failed to identify, locate, evaluate, and offer special education and related services to certain children in violation of, inter alia, the Individuals with Disabilities and Education Act (“IDEA”), codified at 20 U.S.C. 1400, et seq., Section 504 of the Rehabilitation Act, codified at 29 U.S.C. 794(a), 42 U.S.C. § 1983.
Plaintiffs served their First Set of Requests for Production of Documents (“Plaintiffs’ First Document Request”) on December 28, 2005. (See Pl.’s Mem. Ex. A.) The District filed its Response (“Response to Plaintiffs’ First Document Request”) on January 27, 2006. (See Pl.’s Mem. Ex. D.) This response included a set of fifteen “boilerplate” objections entitled “General Objections.” (Id. at 1-2.)
On July 10, 2006 plaintiffs filed a Motion [41] to Compel Defendants’ Responses to Plaintiffs’ First Set of Requests for Production of Documents. On August 1, 2006, the District filed its Motion [45] to Compel Dis
On September 17, 2007 plaintiffs served Plaintiffs’ Second Set of Requests for Production of Documents (“Plaintiffs’ Second Document Request”). (See Pl.’s Mem. Ex. B.) On October 17, 2007, the District served its Response (“Response to Plaintiffs’ Second Document Request”), which included the same list of “General Objections.” (Pl.’s Mem. Ex. F at 1-2.). On September 28, 2007 plaintiffs served Plaintiffs’ First Set of Interrogatories (“Plaintiffs’ First Interrogatories”) and Third Set of Requests for Production of Documents (“Plaintiffs’ Third Document Request”). (See Pl.’s Mem. Ex. C.) On October 29, 2007 the District served Defendants’ Response to Plaintiffs’ First Set of Interrogatories (“Response to Plaintiffs’ First Interrogatories”) (See Pl.’s Mem. Ex. G), and Defendants’ Response to Plaintiffs’ Third Set of Requests for Production of Documents (“Response to Plaintiffs’ Third Document Request”). (See Pl.’s Mem. Ex. H.) The District’s responses to Plaintiffs’ First Interrogatories and Third Document Request repeated many of the “General Objections” raised by the District in previous responses. (See Pl.’s Mem. Ex. G, 1-4; Pl.’s Mem. Ex. H, 1-3.)
The District has charitably characterized the nature of its production of documents as “rolling”(Pl.’s Mem. Ex. I, 1) or “continuing.” (Defs Opp’n 2). Plaintiffs conducted an initial review of documents on February 1, 2006. (Pl.’s Mem. 4.) Subsequent to that review, during the period spanning between February 28, 2006 and January 30, 2008, the District provided ten supplemental responses to plaintiffs’ document requests. (Id. at 4-5.) Notably, of the seventeen documents provided in the District’s Tenth Supplemental Production of January 30, 2008, eight are from 2006 or before. (Id. at 5-6.)
On February 4, 2008 plaintiffs filed a Motion [91] to Compel Defendants’ Responses to Plaintiffs’ First, Second, and Third Sets of Requests for Production of Documents and Plaintiffs’ First Set of Interrogatories, and requested the Court order the District to pay plaintiffs’ reasonable expenses incurred in making the motion to compel, including attorneys’ fees, pursuant to Rule 37(a)(1). Plaintiffs’ motion was followed, on March 6, 2008, by the District’s Eleventh Supplemental Production, which contained more than 6000 pages of responsive documents. (See Def.’s Opp’n Ex. A, 43-51.) Plaintiffs’ motion was also followed by an opposition [97] filed March 10, 2008, and a reply [101] filed March 25, 2008.
On February 27, 2008, the District filed a Motion [95] to Compel Discovery. The District’s motion was followed by an opposition [98] filed March 12, 2008, and a reply [99] filed March 18, 2008.
II. DISCUSSION
A. Legal Standard
Trial courts have considerable discretion when handling discovery matters. Food Lion Inc. v. United Food and Commercial Workers Int’l Union,
Rule 37 of the Federal Rules of Civil Procedure provides that “[o]n notice to other
B. District’s General Objections are Invalid
“The party objecting to ... discovery bears the burden of ‘showing] why discovery should not be permitted.’ ” Alexander v. F.B.I.,
Similarly, “[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4).
The District begins each of its responses to plaintiffs’ discovery requests with a list of boilerplate “general objections.” (See PL’s Mem. Exs. D, F, G, H.) The District fails to explain with any specificity how these general objections are applicable to particular discovery requests. For example, the District responds to forty-three of the forty-four requests contained in Plaintiffs’ First Document Requests by stating: “[s]ubject to the General Objections above, the District will produce documents responsive to this request.” (See PL Mem. Ex. D.) This standardized response is varied in only three instances: twice through the addition of the phrase “if any” (Id. at Responses 16, 43), and once through the addition of the phrase “[s]ee also responses to other requests.” (Id. at Response 9.) The answer provides no indication as to the specific nature or amount of material being withheld on the basis of the general objections.
The District takes a similar approach in responding to Plaintiffs’ Second Document Request. Of the five responses, four make reference to various of the general objections, without elaboration or explanation. (See Pl. Mem. Ex. F., Responses 2-5.) The remaining response makes the same sweeping reference to general objections common to the District’s response to Plaintiffs’ First Document Request. (Id. at Response 1.)
The District’s response to Plaintiffs’ First Interrogatories also begins with a list of eighteen general objections. (See PL’s Mem. Ex. G.) The responses that follow frequently reference individual general objections without explanation or elaboration. Several refer plaintiffs to the entire body of documents disclosed to date (PL’s Mem. 32), without specifying which particular documents are responsive to the interrogatories. (PL’s Mem. Ex. G., Responses 1, 5, 6, 7, 8.) Other responses refer plaintiffs to the District’s pleadings or other documents produced. (See PL’s Mem. Ex. G, Responses 1, 2, 5, 6.) The District’s Response to Plaintiffs’ Third Document Request continues the same pattern of making nonspecific reference to a list of general objections.
Before discussing in greater detail several of the general objections as raised in response to specific discovery requests, the Court notes that the District’s “boilerplate” general objections to plaintiffs’ discovery requests, without more, fail to satisfy the District’s burdens under the Federal Rules of Civil Procedure to justify its objections to discovery. The District’s general objections are not applied with sufficient specificity to enable this court to evaluate their merits. In situations such as these, this Court will overrule District’s objections in their entirety. Accordingly, all of the District’s general objections, when not referenced in response to specific discovery requests, are overruled. The District shall not rely on any general objection as a basis for withholding further discovery.
1. District’s Objection to Production of Documents Created Before 2003
Throughout their discovery requests, plaintiffs have requested documents created from 2000 to the present. Plaintiffs correctly assert that to prevail in their § 1983 action, they must establish a “custom or practice” that caused the alleged violation. Indeed, “[i]n any § 1983 action against a municipality such as the District of Columbia, the burden is on the plaintiffs to establish that the municipality has a custom or practice that caused the alleged constitutional or statutory violation.” Johnson v. District of Columbia,
The District argues the court should not compel discovery of these documents on three grounds. First, the District directs the Court’s attention to various individual employment discrimination cases in which shorter discovery windows were found reasonable. (Def.’s Opp’n 7-8.) Given the facts of the case and the nature of plaintiffs’ claims, the Court finds this argument unpersuasive.
Second, the District argues that production of documents created prior to 2003 would be unduly burdensome. (Id. at 8-9, 16-18.) In considering this objection, the Court notes an apparent divergence between the parties with respect to the nature and extent of documents predating 2003 in contention. (Compare PL’s Mem. Ex. H, Request 3) (“All documents, including but not limited to, case files, that pertain to any inquiry made to defendants by parents or others made on behalf of a disabled preschool child, prior to the time that such parent signed the ‘consent to evaluate’ form. This includes any documentation of communication such as telephone calls, in-person visits, faxes, correspondence, meetings, e-mails, and the like regarding special education services.”) (emphasis added) and Def.’s Opp’n Ex. H, Response 9 (declaration of burden of compiling individual records on “3,332 students who have been determined eligible for special education services”) with PL’s Reply 7 (“with the exception of a limited number of sample student files that defendants have already agreed to provide, plaintiffs’ requests regarding unnamed class members have been limited to requests for aggregate data and policies affecting the entire class.”) Given the language of the plaintiffs’ reply, and the Court’s order [106] of June 2, 2008 granting the parties’ Joint Motion [104] for Order to Produce Documents, the Court understands the remaining objection, on the ground of burdensomeness, to production of documents predating 2003 — if any — to be limited to an objection to the production of such documents responsive “to requests for aggregate data and policies affecting the entire class.” (PL’s Reply at 7.)
This Court “only entertains an unduly burdensome objection when the responding party demonstrates how [discovery of] the document is ‘overly broad, burdensome, or oppressive, by submitting affidavits or offering evidence which reveals the nature of the burden.’ ” Tequila Centinela,
Third, the District argues that discovery of documents predating 2003 should not be compelled because plaintiffs “have expressly disclaimed seeking damages for the alleged violations on which they rely.” (Def.’s Opp’n 9.) The District cites no legal authority in support of this argument, which the Court declines to adopt.
2. District’s Objections on the Grounds of Privilege
The District invokes two categories of privilege as grounds for withholding discovery. First, it asserts a deliberative process privilege. (See Response to Plaintiffs’ First Document Request, General Objection 3; Response to Plaintiffs’ Second Document Request, General Objection 3; Response to Plaintiffs’ Third Document Request, General Objection 3.) Second, the District objects more generally to the production of “documents that are protected from disclosure by the attorney-client privilege, the attorney work-product doctrine, or any other applicable privilege, immunity or protection.” (See Response to Plaintiffs’ First Document Request, General Objection 4; Response to Plaintiffs’ Second Document Request, General Objection 4; Response to First Interrogatories, General Objection 11, Response 1; Response to Plaintiffs’ Third Document Request, General Objection 4.)
“When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must ... describe the nature of the documents, communications, or tangible things not produced or disclosed- — and do so in a manner that ... mil enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5) (emphasis added). This obligation is met through the provision of a privilege log.
In its discussion of the deliberative process privilege, the District’s memorandum in opposition to plaintiffs’ motion makes no effort to argue that the District has provided a log sufficient to satisfy its obligations under Rule 26(b)(5). (See Def.’s Opp’n 9-12.) Nor does the District assert a privilege log has been provided with respect to documents withheld under any other claim of privilege. It bears noting that the District’s opposition does not even discuss any claim of privilege aside from deliberative process. Even the most detailed description of the claims of privilege — provided to plaintiffs the day before the deadline to file their underlying motion to compel, and called to the Court’s attention by plaintiffs in their reply (Pl.’s Reply Ex. T) — fails to describe the actual documents being withheld, the specific privilege asserted, or how that privilege is applicable. The District has clearly failed to satisfy its obligations under Rule 26(b)(5). Accordingly, all the District’s “blanket objections on the basis of privilege shall be rejected.” U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc.,
3. District’s Objections Regarding Lead Paint Abatement Programs
Plaintiffs have requested discovery of “[a]ll documents that identify children ages two through five years old who were identified during the course of any lead abatement program administered by the District of Columbia since 2000.” (Pl.’s Mem. Ex. B, Request 2.) Plaintiffs assert such information is relevant “because long-term studies of children exposed to lead early in life have associated lead poisoning with the need for special education services due to impaired neurobehavioral functioning.” (Pl.’s Mem. 10 (citing Schwarz J., Societal Benefits of Reducing Lead Exposure, Envtl. Res. 66:105-24 (1994))). The District objects to this request on two grounds. First, the District continues its objection to production of documents that predate 2003. As discussed above, this objection is overruled.
The District next argues that this discovery request is “[a]t most ... marginally relevant,” and should be denied because it is
The Court is satisfied that discovery of information regarding children identified through lead abatement programs appears reasonably calculated to lead to the discovery of admissible evidence, and is therefore an appropriate area for discovery. See Fed.R.Civ.P. 26(b)(1). However, the Court also concludes that the burdens and expense associated with an individualized review of the documents in the control of DDOE likely outweigh the resulting benefit. See Fed.R.Civ.P. 26(b)(2)(C)(iii). Accordingly, the District will not be compelled to conduct such a review. The District’s review of documents in the control of DDOE will be limited to a search for documents containing aggregate data or other information or policies that are responsive to plaintiffs’ requests.
Plaintiffs further assert in their reply that departments or agencies of the District other than the DDOE likely have documents responsive to plaintiffs’ request. (Pl.’s Reply 11.) Rule 34 allows any party to serve on any other party a request to produce for the inspection of the requesting party, any designated documents or data compilations from which information may be obtained within the scope of Rule 26(b), that are in the possession, custody or control of the party upon whom the request was served. See Fed.R.Civ.P. 34(a). “With regards to the term ‘control,’ it has been well established that the test for control is not defined as mere possession, but as the legal right to obtain such documents on demand.” Tequila Centinela,
4. District’s Relevance Objections
The District indicates it is relying on an objection as to the relevance of the request to withhold discovery in response to requests 2, 3, 4 and 5 of Plaintiffs’ Second Document Request. (See Pl.’s Mem. Ex. F.) Aside from request 2 regarding lead paint abatement, which this court has already addressed, the District does not explain why it believes the requested material is not relevant. Instead, the District simply references its general objection 5. (See id.)
This type of answer hides the ball. It leaves the plaintiff wondering what documents are being produced and what documents are being withheld. Furthermore, it permits the defendant to be the sole arbiter of that decision. Such an objection is really no objection at all as it does not address why potentially responsive documents are being withheld.
Athridge v. Aetna Cas. and Sur. Co.,
5. District’s Objections for Undue Burden
The District’s catalog of general objections also includes an objection on the basis of an alleged undue burden that would be occasioned by production (General Objection 9 to Plaintiffs’ First, Second and Third Document Requests, Pl.’s Mem. Exs. D, F, H; Defendants’ Response to Plaintiffs’ Interrogatories, Pl.Ex. G, Response 9.) “This court does not accept such arguments without specific estimates of staff hours needed to comply.” Association of American Physicians and Surgeons, Inc. v. Clinton,
The District’s responses to plaintiffs’ discovery requests also include a boilerplate objection on the grounds that the requests seek “documents not in existence or not in the District’s possession, custody, or control.” (General Objection 7 to Plaintiffs’ First, Second, and Third Document Requests, Pl.’s Mem. Exs. D, F, H.). The District references this general objection in responses 3, 4 and 5 to Plaintiffs’ Second Document Request (PL’s Mem. Ex. B.)
The District cannot be ordered to turn over something that is not within its possession, custody or control. Rule 34 specifies that any designated documents or data compilations from which information may be obtained within the scope of Rule 26(b), that are in the possession, custody or control of the party upon whom the request was served, are subject to discovery. See Fed.R.Civ.P. 34(a). If a document is not in the possession, custody or control of a party, then it clearly cannot be turned over. Cf. Fed.R.Civ.P. 34(a). However, the Court shares plaintiffs’ skepticism that there are no documents responsive to the requests at issue within the control of the District. This matter will be addressed when the District conducts a thorough and complete search for all responsive documents as a result of the Court’s order to issue this day.
7. Objection as to Vagueness
In its responses to requests 3, 4 and 5 of Plaintiffs’ Second Document Request (PL’s Mem. Ex. B.), and interrogatory 9, the District references a general objection that plaintiffs’ discovery requests are vague. The District has not sought clarification or indicated the aspects of the requests at issue which it was unable to comprehend, and has thus waived this objection. The Court also notes the requests — on their face — are neither vague, ambiguous, nor unintelligible. Accordingly, the District’s objections as to vagueness are overruled, wherever raised.
8. Objection Regarding Information on non-Named Plaintiffs
The District refused to respond to request 4 of Plaintiffs’ Third Document Request on the ground that it sought information related to “individuals other than the six children who are named plaintiffs.” This objection was overruled by the Court’s order [106] of June 2, 2008, granting the parties’ joint motion [104] for an Order to Produce Documents. The District shall produce documents responsive to Plaintiffs’ requests pursuant to that order [106] and the Amended Protective Order [105] issued the same day.
D. The District’s Compliance with its Document Production Obligations has been Inadequate
The record leads the Court to conclude that the District’s performance of its discovery obligations to date has been completely inadequate. With respect to document production, it is clear that the District “decided it would file an incomplete answer and then supplement it whenever it pleased ... The court condemns this litigation tactic and will not tolerate it in future responses in this ease.” Association of American Physicians,
Q: So if a document was covered by a request but you didn’t think that it was relevant to the case, you didn’t provide it; isn’t that right?
A: That’s correct, sir.
(PL’s Mem. Ex. K, 183.)
In addition, plaintiffs present a persuasive argument that the District may have destroyed and may be continuing to destroy documents likely relevant to this litigation. (See Pl.’s Mem. 30-32). This seems particularly likely with respect to email messages.
While a litigant is under no duty to keep or retain every document in its possession*48 once a complaint is filed, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request.
Arista Records, Inc. v. Sakfield Holding Co. S. L.,
Accordingly, and consistent with this opinion and the Federal Rules, the District will be compelled to review each of plaintiffs’ document requests, to perform a complete and thorough search for responsive documents, including emails and faxes, and to provide responsive documents to plaintiffs. In addition, the District will be ordered, upon completion of discovery, to certify to the court that it has responded fully to all document requests and that no other responsive documents exist as of the time of certification.
D. The District’s Responses to Plaintiffs’ Interrogatories are Inadequate
The District’s responses to plaintiffs’ interrogatories are similarly inadequate. The District provided narrative responses only to four of the sixteen interrogatories, and even these appear seriously deficient. A party to whom an interrogatory is propounded “must provide true, explicit, responsive, complete, and candid answers.” Equal Rights Center v. Post Properties, Inc.,
Most of the District’s responses to plaintiffs’ interrogatories improperly refer to its pleadings or other documents produced. Several refer plaintiffs to the District’s entire document production to date, without identifying those documents that are responsive to the interrogatory in question. As one court has observed:
Under the guise of Fed.R.Civ.P. 33(d) defendants may not simply refer generically to past or future production of documents. They must identify in their answers to the interrogatories specifically which documents contain the answer. Otherwise they must completely answer the interrogatories without referring to the documents. They may produce their business records to answer part of an interrogatory, if they otherwise fully answer the other parts.
Pulsecard, Inc. v. Discover Card Services, Inc.,
“This Court believes that discovery is not the appropriate time to obtain an opponent’s witness list and that plaintiff properly invoked the work product privilege with respect to this interrogatory.” Equal Rights Center,
However, on the whole the Court finds the District’s responses to plaintiffs’ interrogatories inadequate. Accordingly, except with respect to interrogatory three, the District will be compelled to review each of plaintiffs’ interrogatories and provide complete and ac
E. Plaintiffs are Entitled to an Award of Expenses Under Rule 37
Plaintiffs’ motion before the Court also included a request “to order defendants’ [sic] to pay plaintiffs’ reasonable expenses incurred in making plaintiffs’ Motion to Compel, including attorneys’ fees, pursuant to Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure.” (Pl.’s Mot. 1.) “Under Rule 37, the district court has broad discretion to impose sanctions for discovery violations, and to determine what sanctions to impose.” Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd.,
In relevant part, Rule 37 provides:
If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.
Fed.R.Civ.P. 37(a)(5)(A) (emphasis added). This Court has previously observed that “the language of the Rule itself is mandatory, dictating that the Court must award expenses upon granting a motion to compel disclosure unless one of the specified bases for refusing to make such an award is found to exist.” Cobell v. Norton,
Setting aside the District’s provision of significant discovery after plaintiffs filed their motion, the award of plaintiffs’ attorney’s fees would also be merited under Rule 37(a)(5)(C), which provides that when a motion to compel is granted in part and denied in part, the Court may “apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C). The District argues that sanctions should not be imposed either because its opposition to discovery was “substantially justified,” or because an award of expenses would be otherwise “unjust.” (Def.’s Opp’n 23-26.) See also Fed.R.Civ.P. 37(a)(5)(C)(ii) and (iii). These arguments are without merit.
“The Supreme Court has stated that a party meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Alexander v. FBI,
Nor is the Court persuaded by the District’s argument that the award of attorney’s fees under the present circumstances would be “unjust.” In particular, the District ar
Finally, the District mentions the Congressionally imposed cap
Accordingly, plaintiffs’ request for an award of reasonable expenses, including attorney’s fees, shall be granted and plaintiffs shall file a request for an amount within 10 days. The District shall have 10 days from the filing of plaintiffs’ request to file its opposition.
F. District’s Motion to Compel
The District also filed a motion to compel plaintiffs to disclose certain categories of documents. Specifically, the District seeks an order from this Court compelling plaintiffs’ responses to requests 5, 27(b), 30, 31 and 35 of Defendants’ Document Request. (Def.’s Mem. 2.) In its reply, the District clarifies that its motion to compel seeks documents “relating to unnamed class members, not documents from unnamed class members.” (Def.’s Reply 2) (emphasis in original.) In response, plaintiffs “state unequivocally that they have no non-privileged responsive documents that have not already been produced concerning the unnamed class members.” (Pl.’s Opp’n 4.) If a document is not in the possession, custody or control of a party, then it clearly cannot be turned over. Cf. Fed.R.Civ.P. 34(a). Plaintiffs also provided the District with three privilege logs as discovery proceeded. (See Def.’s Mem. 31-43; Pl.’s Opp. 4 n. 2.) The District has challenged neither the sufficiency of the logs nor the withholding of any of the listed documents. Accordingly, the District’s motion to compel will be denied.
III. CONCLUSION
For the reasons set forth above, plaintiffs’ Motion [91] to Compel will be granted in part and denied in part. Defendant’s Motion [95] to Compel will be denied.
A separate order shall issue this date.
SO ORDERED.
Notes
. The current version of this cap appears in the Consolidated Appropriations Act, 2008, Pub.L. No. 110-161, 121 Stat. 2040.
. The Court notes, without comment, that the question referenced in the District's opposition was subsequently decided adversely to the District. See Petties v. District of Columbia,