MEMORANDUM AND ORDER
This Memorandum and Order addresses (1) Plaintiff Rose Ure Mezu’s Motion to Compel Discovery Responses, ECF No. 54; Defendant Morgan State University’s
As will be explained below, the discovery that has been conducted in this case has been done in substantial disregard of the rules of procedure, local rules, guidelines, and decisional authority that govern how this Court expects discovery to be conducted, and this suggests that the parties are using the process for inappropriate purposes. After cataloging the discovery violations to date, this Order sets out how discovery will take place henceforth. The parties and counsel are forewarned that violations of this Order and/or further violations of the Federal Rules of Civil Procedure and the Local Rules will result in sanctions that may include casedispositive sanctions under Fed.R.Civ.P. 37(b)(2)(A)(v)-(vii), including contempt of court.
I. Discovery Conflicts Generally and the Duty to Cooperate
This case represents Plaintiffs third attempt to sue her employer.
Thus far, counsel for both Plaintiff and Defendant have exhibited a disturbing lack of knowledge of, or disregard for, the Federal Rules of Civil Procedure and Local Rules of this Court, including the Discovery Guidelines for the United States District Court for the District of Maryland, D. Md. Loe. R.App. A (Dec. 1, 2009), http://www. mdd.uscourts.govAocalrules/ localrulesfinaljuly2010.pdf. This is despite the fact that
certifies that to the best of the person’s knowledge, information, and belief ... a discovery request, response, or objection ... is ... not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and ... neither unreasonably nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the ease, the amount in controversy, and the importance of the issues at stake in the action.
Moreover, although the parties have exchanged communications with regard to discovery, the overtones of animosity belie any pretext of meeting the affirmative duty to cooperate, as stated in Mancia v. Mayflower Textile Services Co.,
Preliminarily, Defendant improperly moved to strike Plaintiffs Motion to Compel, claiming that Plaintiff failed to comply with Local Rule 104.8.b, which provides:
Counsel are encouraged to confer with one another before or immediately after a motion to compel is served. If they are unable to resolve their disputes, counsel must hold the conference required by L.R. 104.7 after serving upon one another all of the documents relating to the motion to compel.
According to Defendant, Plaintiff “did not meet the requirements of L.R. 104.8” because she filed her Motion to Compel “without adequately discussing and attempting to resolve the discovery disputes,” Def.’s Mem. in Support of Def.’s Mot. to Strike 2, 3, ECF No. 55-1.
Contrary to Defendant’s assertion, Plaintiff has demonstrated that she complied with Local Rule 104.8. On July 11, 2010, after Defendant’s deadline to respond had passed and prior to serving her Motion to Compel on Defendant, Plaintiff contacted Defendant to request “a meet and confer telephone conference” in an attempt to resolve the dispute. Pl.’s Mot. to Compel Ex. 3, ECF No. 54-5. The parties conferred via telephone on July
II. Discovery Violations with Regard to Plaintiffs Interrogatories
Plaintiff served interrogatories on May 17, 2010, and requests for production of documents on May 19, 2010, and agreed to extend the time for Defendant to respond to both discovery requests until June 29, 2010. Pl.’s Mot. to Compel Ex. 1 & 3, ECF Nos. 54-3 & 54-5. Plaintiff posed twenty-five interrogatories, but a number of them had multiple subparts.
Fed.R.Civ.P. 33(a)(1) provides that “a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” (Emphasis added.) “[A]n interrogatory containing subparts di
Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related is to examine whether the first question is primary and subsequent questions are secondary to the primary question____ Genuine sub-parts should not be counted as separate interrogatories. However, discrete or separate questions should be counted as separate interrogatories, notwithstanding they ... may be related.
Kendall v. GES Exposition Servs.,
Here, Plaintiffs multi-part interrogatories largely encompassed multiple questions. For example, Interrogatory No. 3 posed a question about the positions Plaintiff held at Morgan State University. Most of the other questions included in Interrogatory No. 3 could be seen as subparts, establishing her hire date, salary, and supervisors. The relationship between these questions and the question about why Plaintiff changed positions is, at best, attenuated. And, the final question as to the pay rates of other faculty members clearly is not secondary to, or more than tangentially related to, the earlier questions. Interrogatories such as No. 3 must be counted as two questions, if not more. Therefore, Plaintiff propounded more than twenty-five interrogatories, in violation of Fed.R.Civ.P. 33(a)(1).
On June 29, 2010, Defendant provided answers to interrogatories, but they were unsigned,
Further, Defendant filed boilerplate objections. E.g., Pl.’s Mot. to Compel Ex. 2, Resp. to Interrog. No. 3, ECF No. 54-4 (“Defendant objects to the interrogatory because it is overly broad and requests information beyond the scope of the two counts remaining in the case and is not reasonably calculated to lead to the discovery of admissible evidence relevant to the two remaining counts in the case. Moreover, the request contains more than one request....”). Objections to discovery must be specific, non-boilerplate, and supported by particularized facts where necessary to demonstrate the basis for the objection. Hall v. Sullivan,
III. Discovery Violations with Regard to Plaintiffs Document Requests
In Plaintiffs request for production of documents, she stated that “[pjroduction can be accomplished by mailing the documents within the rule time to the undersigned trial attorney.” Pl.’s Mot. to Compel Ex. 1. On June 29, 2010, the date on which its discovery response was due, Defendant responded to Plaintiffs document requests by objecting to the production of some documents and, with regard to the requests to which Defendant did not object, stating: “Defendant will produce responsive documents.” Id. Ex. 2. Notably, Defendant did not object to the form of production, produce any documents with its response, or designate a date by which documents would be produced. Id. Defendant claims that “the documents ... were available for inspection and copying on June 29, 2010,” and “plaintiff did not avail herself of the opportunity to inspect and copy the discovery documents.” Def.’s Reply ¶¶ 3-4. Yet, neither Defendant’s response nor any other document in the record before me informed Plaintiff that the documents “were available for inspection and copying on June 29, 2010.”
Not having received the documents Plaintiff sought, Plaintiffs counsel emailed Defense counsel to request a “meet and confer telephone conference.” Pl.’s Mot. to Compel Ex. 3. They conferred by telephone on July 14, 2010, and, according to Plaintiffs counsel, Defense counsel said that her “duty” was to make the requested documents “available,” but Plaintiffs counsel insisted “that was not true.” Id. On July 15, 2010, Defendant informed Plaintiff that “[t]he cost for [the Office of the Attorney General] to photocopy the documents will be $.25 per page.” Id Ex. 4, ECF No. 54-6. By then, the deadline for producing documents had passed, and in any event, it still was not clear from Defendant’s statement about copying costs that the documents were available at that time. It is not apparent from the filings that Plaintiff ever reviewed the documents to determine which, if any, to photocopy. In a July 19, 2010 email, Plaintiffs counsel said that if Defendant would not “bear the cost of producing the documents,” then, “rather than going back and forth, the plaintiff will accept the .25 cents per page as [Defense counsel] stated in [her] earlier email.” Id. Ex. 5, ECF No. 54-7. As with the dispute over the interrogatories, the conflict regarding Plaintiffs document production request never should have had to be brought to the Court for resolution. Counsel should have agreed upon a time and place for Plaintiff to review the documents responsive to her request, and, if she sought production in “hard copy,” as opposed to electronically stored information, they should have been able to agree on a reasonable cost for copying.
It is improper to state, as Defendant did, that production will be made at some unspecified time in the future. See Jayne H. Lee, Inc. v. Flagstaff Indus. Corp.,
As the parties move forward with discovery, counsel will familiarize themselves with the document production requirements of Fed.R.Civ.P. 34. In this regard, it is true that “the presumption is that the producing party should bear the cost of responding to properly initiated discovery requests.” Thompson,
Indeed, Rule 34(a)(1) provides that a party may request that the other party “produce and permit the requesting party to inspect, copy, test, or sample” relevant documents and tangible things. Rule 34(b)(1)(B) provides that the request “must specify a reasonable time, place, and manner for the inspection and for performing the related acts,” and Rule 34(b)(2)(B) provides that the response to each item “must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.” Thus, Defendant was not obligated to photocopy the documents and mail them to Plaintiff; Defendant only was obligated to make the documents available to Plaintiff for inspection and copying. See Fed.R.Civ.P. 34(a)(1). Also, Defendant “may charge as a photocopying expense” an amount that did “not exceed the rate established by the Court for taxation of costs.” See Loe. R. KM.ll.c. If Defendant did not want to photocopy the documents, it should have made clear to Plaintiff that the documents were available for inspection and objected to the form of production that Plaintiff requested as unreasonable. See Fed. R.Civ.P. 34(b)(1)(B), (b)(2)(B)-(C). Alternatively, had Defendant made clear in its response that the documents were available for inspection and could be copied by Defendant at $0.25 per page, Plaintiff could have informed Defendant that it found the cost unreasonable. In either case, the parties then could have conferred and agreed upon a reasonable amount or a time and place for Plaintiff to make copies at her own expense. Experienced counsel who conduct discovery as the Court expects them to do not bring trivial disputes like this to the Court for resolution.
Additionally, Defendant claimed res judicata as grounds for not responding to document requests. This is a violation of Rule 26(g)(1)(B), which requires that a discovery objection be “consistent with [the Federal Rules] and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law.” Res judicata is an affirmative defense that “may properly be raised through a motion to dismiss under Rule 12(b)(6).” Clark v. Wells Fargo Financial, Inc., No. 1:08CV343,
Defendant also improperly asserts the Maryland Public Information Act, Md.Code Ann., State Gov’t § 10—616(i) (MPIA) as a “privilege” in response to five document requests, claiming that “the request is for confidential employee records, which cannot be produced.” Pl.’s Mot. to Compel Ex. 2 & 4. However, there is no legal justification for claiming that the MPIA is a privilege that would warrant refusal to produce documents pursuant to Fed.R.Civ.P. 26(b)(1). Rule 26(b)(1) “permits discovery into ‘any matter ... that is relevant to the claim or defense of any party,’ ” unless it is privileged. Sanyo Laser Prods., Inc. v. Arista Records, Inc.,
The MPIA is “modeled on” the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, and therefore “decisions interpreting the federal statute are persuasive in interpreting counterpart provisions of the MPIA.” MacPhail v. Comptroller,
It is apparent that Defendant failed to conduct legal research to determine whether the MPIA operated as a privilege to bar discovery, which is a violation of Rule 26(g). At most, it could be used as a basis to seek a protective order under Rule 26(c),
Further, despite asserting that it would not produce certain documents, ostensibly on the basis that they are privileged, and hence beyond the scope of discovery, see Fed.R.Civ.P. 26(b)(1), Defendant has not produced a privilege log. In an August 10, 2010 letter sent via email and regular mail, weeks after Defendant’s documents were due, Defense counsel stated that she was “in the process of preparing a privilege log.” PL’s Mot. to Compel Ex. 7. Also, on August 19, 2010, Defendant stated in its Opposition to Plaintiff’s Motion to Compel that it “would provide the relevant statistical information regarding the FMLA requests made at Morgan State University, with a privilege log,” Def.’s Opp’n ¶ 5, but there is no indication that it has done so. Fed.R.Civ.P. 26(b)(5)(A)(ii) requires that a party withholding information “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” See also Discovery Guideline 9.d (requiring “[t]he party asserting the privilege [to], in the objection to the interrogatory, document request, or part thereof, identify with specificity the nature of the privilege (including work product) that is being claimed,” as well as “the type of document”; “the general subject matter of the document”; “the date of the document”; and “such other information as is sufficient to identify the document”). “This description generally takes the form of a privilege log.” Cencast Sens. v. United States,
IV. Discovery Violations with Regard to Plaintiffs Disclosures and Production of Documents
According to Defendant, Plaintiff has not made the expert witness disclosures required under Rule 26(a)(2);
Rule 26(a)(2)(A) provides that “a party must disclose to the other parties the identity
Of import, treating physicians are included among the witnesses to whom the disclosure requirement of Rule 26(a)(2) applies if it is anticipated that they will provide opinion testimony or testify as to scientific, technical, or specialized information. Grimm, Discovery Problems, supra, at 243; see Hamburger v. State Farm Mut. Auto. Ins. Co.,
It is true that Plaintiff identified Drs. Huang and Nze “as expert witnesses who may be used at trial to present evidence under Federal Rules of Evidence 702, 703 or 705.” Def.’s Mot. for Sanctions Ex. A, EOF No. 68-2. However, in only providing their names, addresses, and telephone numbers, she clarified that “the following expert witnesses have not been retained or specially employed by the plaintiff to provide expert testimony in this case, neither are they employees of the plaintiff whose duties regularly involve giving expert testimony.” Id. In email correspondence with Defense counsel, Plaintiffs counsel explained that the physicians “are fact witnesses who may be called on to testify at trial. Dr[.] Huang performed [Plaintiffs daughter Olachi’s] surgery while Dr[.] Nze has been Dr[.] Rose Mezu’s physician for years.” Def.’s Mot. for Sanctions Ex. B, EOF No. 68-3. In her Opposition to Defendant’s Motion for Sanctions, Plaintiff argues that Drs. Huang and Nze “are experts, of course, in that they have medical knowledge beyond that of a layperson,” but “they are not now and never have been ‘expert witnesses’ for plaintiff, nor are they consulting experts of any sort.” PL’s Opp’n 8. She stated that “neither is ever expected to render an opinion. They are fact witnesses, plain and simple.” Id. at 9. Because the record before me suggests that the physicians are not serving as retained expert witnesses, but rather as “hybrid” facf/expert witnesses, Plaintiff only was required to make the Rule 26(a)(2)(A) disclosures, not the more extensive disclosures required by Rule 26(a)(2)(B), and it was improper of Defendant to have filed a motion seeking sanctions for production of disclosures to which it was not entitled under Rule 26(a)(2).
However, Rule 26(a)(2) speaks only to the disclosures Plaintiff was required to make absent any discovery request by Defendant,
Here, through interrogatories, Defendant asked Plaintiff to “[i]dentify any experts whom plaintiff expect[ed] to present testimony on her behalf at trial, state the opinion such expert will present, summarize the basis for such opinion and identify any reports prepared by such expert.” Pl.’s Mot. to Quash Ex. 1, Interrog. No. 10, ECF No. 59-1. Plaintiff objected because the interrogatory was “overly broad and ... as worded ask[ed] for legal conclusions.” Plaintiff added that she “ha[d] not completed preparation for the trial and ha[d] not designated any experts and as such the above report is not required. Plaintiff only has treating physicians who[m] she expects to testify at trial and the Plaintiff has already submitted a list to the defendant.” Id. Defendant did not challenge Plaintiffs response, even though, as the above discussions show, Plaintiffs objections were boilerplate objections, such that Plaintiff waived her objections on those grounds, see Hall,
As to Plaintiffs medical records, they are within her possession and control and therefore discoverable under Rule 34(a)(1), if relevant. Any medical record from Plaintiffs physicians in Maryland and Nigeria, showing that Plaintiff was “ill and was advised not to travel” when she was due to begin teaching in January 2009 are relevant to show that Plaintiffs absence from the first day of classes was justified and to support her claim in Count I (FMLA retaliation) that she was “deprived] of her duly entitled leave,” in retaliation “for filing charges with the EEOC and for filing the First and Second Actions.” Am. Compl. ¶¶ 50, 87-88. Therefore, Plaintiff is obligated to produce these medical records.
With regard to her daughter’s medical records, any records showing that Plaintiffs daughter was recovering from surgery and in need of Plaintiffs care, for which Plaintiff applied for but was denied FMLA leave, are relevant to Count II (FMLA Interference) of Plaintiffs Amended Complaint. See Am. Compl. ¶¶ 97-100. However, it may be that other than the documents already produced, other records are not within Plaintiffs control. Counsel should have made themselves familiar with the Health Insurance and Portability Accountability Act, 42 U.S.C. § 1320d et seq. (1996) (HIPAA), and 45 C.F.R. §§ 164.512(e)(1) for the procedure for obtaining confidential medical records for a court proceeding. See Law v. Zuckerman,
Defendant also sought “documents sent to any expert whom [Plaintiff] plan[s] to call at the trial” in Request No. 14; and “documents referring or relating to any reports, drafts of any reports or correspondence from any expert [Plaintiff] consulted concerning the events alleged in the Complaint” in Request No. 15. Pl.’s Mot. to Quash Ex. 1. In response to Request Nos. 14 and 15, Plaintiff objected “on the grounds that her preparation for trial has not been completed,” and stated that “Plaintiff will provide any such documents when they become available.” Id. In an email that Plaintiffs counsel sent to Defense counsel on September 10, 2010, the day that Defense counsel filed Defendant’s Motion for Sanctions, Plaintiffs counsel stated that there were “[n]o responsive documents for requests 14 and 15,” and she reserved the right to supplement the production. Pl.’s Mem. of Law
Like Defendant’s interrogatories, discussed supra,
With regard to the disputes relating to the disclosures required by Plaintiffs doctors and Defendant’s attempts to discover their anticipated trial testimony and the bases therefor, counsel should have been informed about the distinction between the Rule 26(a)(2)(A) and (B) disclosures, as well as the appropriate methods for discovering information beyond the Rule 26(a)(2)(A) disclosure, and they should have reached an agreement regarding how Defendant could do so consistent with the rules of procedure.
V. Discovery Violations with Regard to Plaintiffs Deposition
A. Defendant’s Improper Use of a Subpoena to Compel Plaintiff to Appear for Deposition and to Produce Documents that Plaintiff Had Objected to Producing under Rule 34
Plaintiff moved to quash the subpoena Defendant served on her prior to her August 25, 2010 deposition. Pl.’s Mot. to Quash 1. The subpoena stated that Plaintiff was “COMMANDED to appear” for her deposition and “COMMANDED to produce and permit inspection and copying of the following documents,” and it referenced a list of documents. Id. Ex. 2 & Att. A, ECF No. 59-2. The six document requests were almost verbatim reproductions of Defendant’s Document Requests No. 6, 7, 9, 12, 14, and 15. Defendant stated that it served the subpoena for “plaintiff to appear for deposition” and for her “to bring documents objected to in her response to defendant’s request for production of documents.” Def.’s Response in Opp’n to Pl.’s Mot. to Quash ¶ 1. This motion is moot in part because the deposition has passed and Plaintiff appeared. Further, Plaintiff produced documents in response to Requests No. 6, 7, 9, and 12 on September 10, 2010. (Plaintiffs failure to produce documents in response to Requests No. 14 and 15 is discussed above.) However, the use of a subpoena to compel Plaintiff to appear for her deposition and to produce documents that already had been requested pursuant to Rule 34 but objected to by Plaintiff was improper in the absence of a Court determination as to whether the disputed documents should be produced.
Courts are divided as to whether Rule 45 subpoenas should be served on parties. Compare Hasbro, Inc. v. Serafino,
B. Counsels’ Improper Conduct during Plaintiffs Deposition
During the August 25, 2010 deposition of Plaintiff, Defense counsel made much of the fact that Plaintiff is the mother of her attorney of record, suggesting that Plaintiffs counsel had “a conflict of interest in this case because [she is] the daughter of the Plaintiff.” Mezu Dep. 116:4-6, Aug. 25, 2010; see also id. at 146:1-8 (Defense counsel informed Plaintiffs counsel: “I am going to be filing a Motion to Dismiss if your mother doesn’t answer the question,” and Plaintiff said “Stop referring to—she is my attorney. I think you should give her the respect as my attorney____ It is not a tragedy that she is my daughter.”). While the mother-daughter relationship in and of itself does not create a conflict of interest in this case, it does make it more important for Plaintiffs counsel to exhibit the objective detachment expected to ensure that the animosity of the parties does not infect counsel, who are expected to be professionals. Moreover, from reading some of the comments made by counsel for Defendant during Plaintiffs depositions, it also appears that counsel for Defendant lacks the necessary objective detachment. These facts provide insight into why discovery has been so contentious.
During Plaintiffs deposition, Plaintiffs counsel repeatedly objected and instructed Plaintiff not to answer. See, e.g., Mezu Dep., 8:15-20, 15:16-17, 17:5, 18:20-21, 20:10-11, 21:5-7, 23:18-19, 24:12-20, 32:13, 35:4-5 & 18-19, 37:21, 38:9—39:4, 40:7, Aug. 25, 2010, EOF No. 68-5.
Plaintiffs counsel generally tried to state her objection concisely at the outset. As
MS. IBE: I object to that.
MS. SWANN: You can answer.
MS. IBE: It calls for speculation.
MS. SWANN: She had to have some sort of understanding.
MS. IBE: It calls for speculation.
MS. SWANN: It is discovery. This is not—we are not at trial.
MS. IBE: It calls for speculation. She is not supposed to speculate to her understanding of something.
MS. SWANN: It is not speculation.
MS. IBE: It is speculation.
Q What do you understand? How do you understand a burial to fit into FMLA Leave?
MS. IBE: It calls for speculation. I instruct you not to answer that.
MS. SWANN: Well, we may have to get the judge on the line.17
Similar arguments happened repeatedly throughout the deposition. E.g., Mezu Dep. 42:20—43:14, 62:9—63:4, 63:16—65:5, 115:10—117:7. Such exchanges suggest that Plaintiffs counsel did not understand that the objection “must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection.” Fed.R.Civ.P. 30(c)(2). And, it is clear from the bickering between counsel that neither exhibited the courtesy required by Local Rule 606 and Discovery Guideline l.c. Also, as seen in the above example, Plaintiffs counsel instructed Plaintiff not to answer on grounds other than privilege or Court-ordered limitation, in violation of Rule 30(d)(3), Discovery Guideline 6.d, and Maryland Rule of Professional Conduct 3.4 (adopted by this Court, see Loe. R. 704), which prohibits counsel from unlawfully obstructing the other party’s access to evidence.
Additionally, Plaintiffs counsel made suggestive “speaking objections” in the presence of the deponent. For example, when Plaintiff answered the question “Did you look at the form?” by stating that she “filled it out,” and Defense counsel repeated the question, Plaintiffs counsel said, “She doesn’t remember what she did.... [T]hat was a long time ago.” Mezu Dep. 39:16—41:1. After Plaintiffs counsel repeated four times that Plaintiff did not remember, Plaintiff, predictably, testified: “I don’t remember what happened.” Id. at 40:18—42:3; see also, e.g., id. at 55:19—56:18 (Plaintiffs counsel said, “I object. This happened too long ago. You are asking her to speculate as to what happened almost two years ago,” and Plaintiff testified, “It is too far away, too long ago.”), 113:21—114:5 (Plaintiffs counsel said, “The documents speak for themselves,” and Plaintiff testified, “Whatever the documents say, that is what it is.”), 146:15-17 (Plaintiffs counsel said, “She already responded,” and Plaintiff testified, “I was telling you that I had already answered you that question.”). By making objections that suggested to Plaintiff what her response should be, Plaintiffs counsel violated Discovery Guideline 6.b.
Over the course of Plaintiffs deposition, her counsel objected more than fifty times. She interjected frequently to answer questions for Plaintiff. For example, Defense counsel asked plaintiff, “I am asking if you recall whether you got it or not?” and Plaintiffs counsel interjected, “She doesn’t remember. She said she doesn’t remember
It has been noted that “[w]hen an attorney for one of the parties misbehaves badly during pretrial discovery, there is a very real danger that others will do the same, fighting fire with fire.” Freeman,
As stated swpra, counsel must “conduct themselves in a professional and courteous manner in connection with all matters pending before the Court.” Local Rule 606; see Discovery Guideline 1.c; see also Freeman,
In the face of such improper questioning, the proper tack for Plaintiffs counsel to have taken would have been to “move to terminate or limit [the deposition] on the ground that it [was] being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Fed.R.Civ.P. 30(d)(3)(A); see also Discovery Guideline 6.c. Further, Plaintiffs counsel could have demanded the suspension of the deposition for the Court to rule on the motion, see Fed.R.Civ.P. 30(d)(3)(A), or availed itself of the Court’s expedited procedures for resolving discovery disputes in exigent circumstances, see D. Md. Emergency Dispute Resolution Procedure (July 2010), http:// wwvw.mdd. uscourts.gov/news/news/dutydiscoveryjudge finaledit.pdf. However, she did not do so, but rather continued to bicker with Defense counsel, which further exacerbated the problems.
Rule 37(a)(3)(B)(i) provides that a party may move the Court to compel an answer if “a deponent fails to answer a question asked under Rule 30 or 31.” As noted, “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). In its Motion for Sanctions, Defendant moves for dismissal and, in the alternative, for the Court to compel Plaintiff to appear at a second deposition. However, Defense counsel has not complied with Fed. R.Civ.P. 37(a)(1) or Local Rule 104.7. Although she stated in two footnotes that she attempted to confer with Plaintiffs counsel about the documents Plaintiff did not produce, see Def.’s Mot. for Sanctions 4 n. 5 & 22 n. 8, there is no Certificate of Good Faith Effort, nor other indication that Defense counsel conferred or attempted to confer with Plaintiffs counsel about Plaintiffs incomplete and evasive deposition responses. Because Defense counsel has not complied with Rule 37(a)(1) or Local Rule 104.7, the Court will not consider Defendant’s motion to compel. Yet, Plaintiff should be aware that, pursuant to Fed.R.Civ.P. 30(d)(2), the Court may impose sanctions on a person who “impedes ... or frustrates the fair examination of the deponent.” When counsel for Plaintiff and Defendant meet in person to confer as directed below, they will address Plaintiffs failure to provide responsive answers and would be wise to agree upon a resolution without further involvement by the Court.
VI. Other Alleged Violations
Defense counsel noted, as another grounds for revocation of Plaintiffs counsel’s admission pro hac vice to this Court, that Plaintiff failed to comply with Local Rule 105.2(c) in filing her Motion for Partial Summary Judgment, ECF No. 56. On September 17, 2010, Judge Nickerson granted Defendant’s Motion to Strike Plaintiffs Motion for Partial Summary Judgment, ECF No. 63, on the ground that Plaintiff failed to comply with Local Rule 105.2(c). ECF No. 72. This non-discovery violation adds to the list of Plaintiffs violations of the Federal and Local Rules thus far.
As the foregoing discussion lamentably demonstrates, the conduct of discovery in this case has been seriously deficient and inappropriate in multiple areas. Counsel for Plaintiff and Defendant have demonstrated deficient knowledge of fundamental rules of procedure, local rules, discovery guidelines, and decisional authority which, collectively, unambiguously establish the Court’s expectation about how discovery is to be conducted to achieve the aspirations of Fed.R.Civ.P. 1 (a “just, speedy, and inexpensive determination” of the claims and defenses), 26(b)(2)(C) (discovery that is proportional to what is at issue in the ease), and 26(g) (discovery that is “complete and correct,” “not interposed for any improper purpose,” and “neither unreasonable nor unduly burdensome or expensive”). Instead, the filings suggest that Plaintiff and her employer have been at odds for years, and this history of animosity has infected the pretrial conduct of this case. The sheer number of filings hurling allegations and counter-allegations demonstrates that the approach to the remaining discovery must be changed. To accomplish that, the following is ORDERED:
1. Within ten (10) days, counsel will submit a written verification that they carefully have read (1) Federal Rules of Civil Procedure 1, 26-37, and 45; (2) the Local Rules of this Court; (3) the Discovery Guidelines of
Because I find that both parties and their counsel are at fault for what has gone wrong with discovery to date, I am denying their cross motions for attorney’s fees and costs. I caution them, however, that failure to comply with the corrective action ordered, and to conduct discovery in accordance with this order, the rules of procedure, local rules, and discovery guidelines may subject the parties and their counsel to Rule 37 sanctions.
2. Within twenty-one (21) days (unless otherwise agreed by counsel or ordered by the Court), counsel will meet and confer in person with the goal of cooperatively resolving as many of the existing disputes as possible, and jointly develop a proposed discovery plan and schedule to complete the remaining discovery. In this regard, counsel will be guided by Rules 26(b)(2)(C) and 26(g), and they will tailor what discovery remains to ensure that it is proportional to what is at issue in this case, which includes an assessment of what damages are reasonably recoverable if Plaintiff prevails in her claims. The conference shall be held in this Courthouse and will be recorded so that, if there are claims that either counsel is behaving improperly, I will be able to listen to the recording and determine whether counsel have behaved properly. At the conclusion of this conference, there will be an in-court hearing during which I will resolve any remaining disputes, and the discovery plan will be approved. Counsel will jointly contact my chambers to schedule the date of the conference/hearing.
3. Until such time that counsel and the parties can demonstrate that they are approaching discovery in the proper manner, they are prohibited from filing any discovery motions without the advance permission of the Court. Instead, I will hold in-court discovery status conferences every other week that must be attended by all counsel who have entered their appearance in this case. Once I am convinced that discovery is proceeding as it should, I will consider whether these discovery status conferences can be accomplished through teleconference. The schedule for these status conferences will be established at the conference/hearing required in Paragraph 2 above.
Notes
. Defendant Morgan State University is the only defendant remaining in the case. See March 18, 2010 Order. ECF No. 25.
. Plaintiff erroneously filed the same Motion to Compel on July 26, 2010, ECF No. 45, instead of only serving it on Defendant. Defendant moved to strike the motion, ECF No. 46; Plaintiff acknowledged its error in response, ECF No. 50, and the Court granted Defendant’s motion to strike, ECF No. 51.
. On September 2, 2010, in accordance with 28 U.S.C. § 636 and Local Rules 301 and 302, Judge Nickerson referred this case to me to resolve discovery disputes and related scheduling matters. Docket Entry.
. See Mezu v. Dolan, Case No. JFM-02-3713; Mezu v. Morgan State Univ., Case No. WDQ-08-1867. Neither of these cases succeeded.
. In Title VII cases, plaintiffs may seek to recover both punitive and compensatory damages. 42 U.S.C. § 1981(a)(1). However, such damages are limited, based on the size of the employer; a plaintiff may not recover more than $300,000 in compensatory and punitive damages from an employer of more than 500 employees for twenty or more calendar weeks in the current or preceding calendar year. Id. § 1981(b)(3)(D). In FMLA cases, an employee may recover damages equivalent to "any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation,” or, if the employee has not been denied or lost such compensation, the employee may recover "actual monetary losses sustained by the employee as a direct result of the violation ... up to a sum equal to 12 weeks ... of wages or salary for the employee.” 29 U.S.C. § 2617(a)(l)(A)(i). The employee may also recover interest, id. § 2617(a)(l)(A)(ii), and "an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii),” id. § 2617(a)( 1)(A)(iii). Assessing the potential damages that may be recovered if Plaintiff prevails in her claims is quite important in determining the amount and nature of discovery that is appropriate. See Fed. R.CÍV.P. 26(b)(2)(C), (g)(i)(B)(iii).
. Although not relevant to discovery, I note that initially Defendant failed to answer Plaintiffs Complaint, and the Clerk made an Entry of Default. See ECF No. 7 (Entry of Default). Thereafter, Defendant moved to dismiss, ECF No. 9, which motion the Court denied in part, ECF No. 25, and moved to set aside the Entry of Default, ECF No. 14, which motion the Court granted, ECF No. 25. Ultimately, Defendant filed an Answer. ECF No. 29.
. Defendant also propounded interrogatories with multiple subparts, and in her responses, Plaintiff objected that Interrogatories No. 2, 3, and 4 "contain[ed] more than one request.” Pl.’s Mot. to Quash Ex. 1, ECF No. 59-1. However, Defendant only propounded twelve interrogatories. In addition to the main question in each interrogatory, Interrogatory 2 had at most five subparts; Interrogatory 3 had at most three subparts; and Interrogatory 4 had at most three subparts. Twelve interrogatories and eleven sub-parts to which Plaintiff objected are a total of twenty-three questions. Therefore, Defendant did not propound more interrogatories than the twenty-five permitted under Rule 33(a)(1). See Fed.R.Civ.P. 33(a)(1).
. In a July 15, 2010 letter, Defense counsel admitted that "the e-mailed interrogatories were unsigned," and said that she would "send the signature page” to Plaintiffs counsel. Pl.'s Mot. to Compel Ex. 4, ECF No. 54-6.
. In a July 19, 2010 letter sent by email and regular mail, regarding Defendant’s refusal to produce documents, Plaintiff offered "to agree to an appropriate protective order.” Pl.’s Mot. to Compel Ex. 5.
. Although Defendant cites Rule 26(a)(2)(C), Rule 26(a)(2)(A) and (B) establish the required disclosures; subpart (C) establishes the timeline for disclosing expert testimony.
. Once again, precise language is helpful. Rule 26(a) identifies three types of disclosures that must be made (absent Court order to the contrary), regardless of whether an adverse party has asked for the information. Technically speaking, the Rule 26(a) disclosures are not "discovery.” “Discovery" refers to the methods of producing information that is within the scope of discovery stated in Rule 26(b)(1), and includes interrogatories (Rule 33), document production requests (Rule 34), depositions (Rules 30-32), motions for physical and mental examinations (Rule 35), and requests for admission of facts and genuineness of documents (Rule 36). There obviously is overlap between information learned via "disclosures” and information learned through "discovery,” and a party may seek information through both means. Thus, a party who wants to discover what a Rule 26(a)(2)(A) witness will testify to at trial can depose that witness or interpose an interrogatory asking for a summary of the testimony.
. The record before me includes only the interrogatories as quoted in Plaintiff's response, not Defendant’s original interrogatories, and therefore it is not apparent whether Defendant defined "experts” in the Definition section of its interrogatories.
. Plaintiff’s statement that she will supplement her document production "is gratuitous.” See Grimm, Discovery Problems, supra, at 45 (noting that "Rule 26(e), 'Supplementation of Disclosures and Responses,' requires the respondent to supplement discovery responses in certain circumstances,” such as when the respondent " 'learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ....'”) (quoting Rule 26(e)(1)(A)).
. As with the interrogatories, the record before me includes only the document requests as quoted in Plaintiff’s response, not Defendant’s original requests, and therefore it is not apparent whether Defendant defined "experts” in the Definition section of its document requests.
. I note that Defendant sought production of “drafts of any reports” prepared by Plaintiff’s expert witnesses. While such drafts currently are discoverable under Rule 26(a)(2)(B), if the pending changes to Rule 26(a)(2)(B) become effective on December 1, 2010 as expected, the disclosures required for retained experts under Rule 26(a)(2)(B) will be narrowed and draft reports no longer will be disclosed. See Proposed Am. to Fed.R.Civ.P. 26, http://www.uscourts.gov/ RulesandPolicies/ FederalRulemaking/PendingRules.aspx (last visited Oct. 18, 2010). In addition, the proposed amendments to Rule 26(a)(2) will expand the disclosures required for Rule 26(a)(2)(A) witnesses to include a disclosure of "the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705,” as well as “a summary of the facts and opinions to which the witness is expected to testily.” Id.
. Although these examples fall within the first forty pages of the 240-page transcript, they typify the exchanges among Plaintiff's counsel, Plaintiff, and Defense counsel that occurred throughout the deposition, and are cited only as illustrations. The tenor of the deposition did not change as the deposition continued.
. There is no evidence that Defense counsel attempted to contact the Court during the deposition pursuant to the Court’s expedited procedures for resolving discovery disputes in exigent circumstances. See D. Md. Emergency Dispute Resolution Procedure (July 2010), http://www. mdd.uscourts. gov /news/news/dutydiscoveryjudgefinaledit.pdf.