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Thymes v. Verizon Wireless, Inc.

United States District Court, D. New Mexico

April 13, 2017

CARL G. THYMES, Plaintiff,
v.
VERIZON WIRELESS, INC., and CARLOS RESTREPO, Defendants.

          ORDER ON DISCOVERY MOTIONS

          William P. Lynch United States Magistrate Judge

         Pro se Plaintiff Carl Thymes and Defendant Verizon Wireless[1] have filed the following pretrial motions:

1. Defendant's motion to compel interrogatory responses (Doc. 100);
2. Defendant's motion to compel responses to requests for production (Doc. 101);
3. Defendant's motion to strike Plaintiff's “Notice of Compliance” (Doc. 112);
4. Defendant's motion for protective order and to quash subpoenas (Doc. 136);
5. Defendant's second motion to compel responses to discovery requests (Doc. 146); and
6. Plaintiff's motion for settlement conference (Doc. 153).

         This Order will resolve these motions.

         Motions to Compel

         Federal Rule of Civil Procedure 33, governing interrogatories to parties, provides that “interrogatories must be answered (A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.” Fed.R.Civ.P. 33(b)(1). Additionally, “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). A party objecting to an interrogatory must specify its grounds for the objection. Fed.R.Civ.P. 33(b)(4); e.g., Doe v. Nat'l Hemophilia Found., 194 F.R.D. 516, 520 (D. Md. 2000). The “[m]ere recitation of [the] familiar litany that [an] interrogatory is overly broad, burdensome, oppressive, and irrelevant does not suffice as [a] specific objection.” Miller v. Pruneda (“Pruneda”), 236 F.R.D. 277, 281 (N.D. W.Va. 2004) (quotation omitted). Any objection not raised or not raised with specificity is waived. Id. An incomplete or evasive answer is not considered an answer, but rather a failure to answer. Villareal v. El Chile, Inc., 266 F.R.D. 207, 212 (N.D. Ill. 2010) (citing Fed.R.Civ.P. 37(a)(4)).

         Rule 33(d) allows an answering party to refer to their own business records when the answer may be derived or ascertained from those records and “the burden of deriving or ascertaining the answer will be substantially the same for either party.” Fed.R.Civ.P. 33(d). Such an answer is “inappropriate where the interrogatory calls for ‘the exercise of particular knowledge and judgment on the part of the responding party.'” Ayers v. Cont'l Cas. Co., 240 F.R.D. 216, 226 (N.D.W.Va. 2007) (quoting United Oil Co. v. Parts Assocs., Inc., 227 F.R.D. 404, 419 (D. Md. 2005)). However, the answering party must identify which documents are responsive with sufficient detail to allow the interrogating party to quickly identify those documents. Id. “If the pertinent documents do not contain all the [relevant] information[, the answering party] must provide substantive responses.” Id. (citing Fed.R.Civ.P. 33(d); Martin v. Easton Publ'g Co., 85 F.R.D. 312, 315 (E.D. Pa. 1980)).

         A party must either produce documents responsive to a request for production (“RFP”) or “state with specificity the grounds for objecting to the request, including the reasons” and “state whether any responsive materials are being withheld on the basis of that objection.” Fed.R.Civ.P. 34(b)(2). As with interrogatories, general objections to a request for production are insufficient and will be overruled. See Convertino v. U.S. Dep't of Justice, 565 F.Supp.2d 10, 12-13 (D.D.C. 2008).

         Verizon served Interrogatories and RFPs on Thymes on December 8, 2017 (Doc. 100; Doc. 101), and on February 16, 2017 (Doc. 146). Thymes timely responded to the discovery requests. The parties conferred, in good faith, to resolve discovery disputes and to avoid motions practice. Prior to filing the motion to compel, Thymes gave Verizon approximately 1, 200 pages of documents, but did not indicate which documents were responsive to which discovery requests. Verizon now seeks an order compelling responses to Interrogatory Nos. 2, 3, 6-8, 10, 13-15, 17-20 (Doc. 100), 24, and 25 (Doc. 146), and RFP Nos. 5-9, 12, 13, 16-21 (Doc. 101), and 23-25 (Doc. 146). Thymes was given additional time to file responses to the motions to compel.

         Interrogatory No. 2 asked Thymes to

Identify any report(s) or complaint(s) that Plaintiff made during his employment with Defendant that he was subjected to discrimination based on his race, including identifying the individual(s) to whom Plaintiff made the report(s) or complaint(s), the date on which the said report(s) or complaint(s) were made, and the substance of the report(s) or complaint(s).

(Doc. 100 Ex. 1 at 22.) Thymes responded by stating that “Plaintiff is still waiting for this information from the defendants Verizon Wireless, Inc. and the EEOC prior investigation which plaintiff has already requested.” (Id.)

         Thymes's answer is nonresponsive. The Interrogatory did not ask him to produce the reports, but merely to search his memory and files for such instances and provide information about any reports or complaints he made. Thymes is directed to answer the interrogatory to the best of his ability within ten days from the date of this Order. Thymes will also supplement his response as required by the Rules. Failure to timely respond to this Interrogatory and to comply with this Order may result in an adverse inference and the conclusion that Thymes made no such reports during his employment.

Interrogatory No. 3 asked Thymes to Identify each and every physician or other health care provider or facility that you have visited, consulted or received treatment from for your emotional distress, and for each physician or other health care provider identified, state his or her address, occupation, area of specialization, if any; any medical institutions with which the person is presently associated or affiliated; any medical institutions with which the person was associated or affiliated while treating you, the date you first consulted that person or entity; the condition for which treatment was sought; the diagnosis that was rendered; the nature of the treatment rendered; and the cost of treatment.

(Doc. 100 Ex. 1 at 22.) Thymes responded by stating that “[t]his information is already in Defendants [sic] possession are [sic] you have requested the release to obtain it.” (Id. at 23.)

         This answer is not responsive. Thymes is required to affirmatively identify each health care provider he saw for his alleged emotional distress and to provide the requested information within ten days from the date of entry of this Order. Thymes is reminded of his obligation to supplement this response as required by the Rules. Failure to timely respond to this Interrogatory and to comply with this Order may result in an adverse inference and the conclusion that Thymes did not seek medical treatment, of any kind, for his alleged emotional distress.

Interrogatory No. 6 asked Thymes to
Please identify any person from whom you have obtained statements, whether written, oral, recorded in any format, regarding the subject matter of the Complaint, including the name of each such person, contact information for each such person, the date each statement was obtained, a summary of each statement, the name of the person who took the statement on Plaintiff's behalf, and the name of the custodian of any such statements.

(Doc. 100 Ex. 1 at 24.) Thymes responded by stating, “Nathaniel Taylor Supervisor Deposition along with all the other Supervisors and Senior Managers plaintiff have requested from and have not yet been provided by Verizon Wireless, Inc. or the EEOC investigation.” (Id.)

         This answer is not responsive. The Interrogatory speaks to statements that Thymes has already obtained, not depositions he wishes to take. If Thymes has not obtained any responsive statements, he must so certify within ten days. If Thymes has obtained any responsive statements, he must fully respond to the Interrogatory within ten days from the date of entry of this Order. Failure to timely respond to the Interrogatory may result in an adverse inference, the conclusion that no such statements exist, or a prohibition on use of any of these statements at trial or during dispositive motions.

Interrogatory No. 7 asked Thymes to
Please state the identity of any information source and all facts and information from such information sources that is known to Plaintiff that would support the allegations in Plaintiff's Complaint that as a result of Defendant's actions Plaintiff has suffered compensatory damages.

(Doc. 100 Ex. 1 at 24.) Thymes responded by stating that “Plaintiff will have questions all Supervisors and Security personnel and with HR people. Plaintiff has not been provided this information from Verizon Wireless, Inc. and the EEOC.” (Id.)

         This answer is not responsive. The Interrogatory asks Thymes to identify sources of information, and the facts and information, that would support his claims. Thymes is directed to fully respond to this Interrogatory, or to certify that no such information sources exist, within ten days from the date of entry of this Order. Failure to timely respond to this Interrogatory may result in an adverse inference and the conclusion that no such sources of information exist.

Interrogatory No. 8 asked Thymes to
Please state the identity of any information source and all facts and information from such information sources that is known to Plaintiff that would support the allegation in Plaintiff's Complaint that as a result of Defendant's actions Plaintiff suffered emotional distress.

(Doc. 100 Ex. 1 at 24.) Thymes responded by stating that “[t]his information is available already to plaintiff by the doctors and some of the discovery provided to plaintiff concerning the doctors he had seen.” (Id.)

         This answer is not responsive. The Interrogatory asks Thymes to identify sources of information, and the facts and information, that would support his claim of emotional distress. Thymes is directed to fully respond to this Interrogatory, or to certify that no such information sources exist, within ten days from the date of entry of this Order. Failure to timely respond to this Interrogatory may result in an adverse inference and the conclusion that no such sources of information exist.

Interrogatory No. 10 asked Thymes to
List all e-mail accounts, Facebook, Twitter, or other social networking sites you have used to communicate with Defendants or any of its current or former employees, as well as those who are not affiliated or associated with Defendant, regarding this lawsuit or your claims, including the e-mail address, the name of the e-mail provider or social networking provider, and your account or screen name for each such account you identify.

(Doc. 100 Ex. 1 at 25.) Thymes responded by stating that “Plaintiff Does not mention Verizon Wireless, Inc. on social networking in a negative light ever. You are in possession of my email address, objection to providing social networks as not relevance [sic] to discovery.” (Id.)

         This answer is not responsive. While Thymes affirmatively states that he has never disparaged Verizon on social networking sites, this does not answer the Interrogatory. Within ten days from the date of entry of this Order, Thymes will fully respond to the Interrogatory and provide information on every account he used to communicate with ...


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