*9 Pursuant to a court order, on September 9, 2005, plaintiffs submitted a letter in which they compiled a list of outstanding and additional discovery, and provided reasons why the discovery was sought. This letter was converted to a motion to compel, which became fully briefed on November 16, 2005. Resolution of that motion was stayed during the summary judgment proceedings.
Spanning eleven years and multiple jurisdictions, this case has a labyrinthine nature, with numerous turns but no end. The period immediately prior to the motion to compel was no exception, and revisiting that time, with the docket sheet as our guide, assists in the resolution of plaintiffs' motion. On December 7, 2004, we ordered that fact discovery would close on March 31, 2005 (dkt.66). Then, on March 15, 2005, Wal-Mart filed a motion to extend the discovery cutoff date so it could depose two health care treaters (dkt.64). We granted that motion and extended the discovery cutoff date until April 26, 2005 (dkt.68). On April 18, 2005, Wal-Mart moved for a pretrial conference, intimating in its motion that settlement was a realistic and desired outcome (dkt.70). We set May 18, 2005, as a date for the settlement conference (dkt.72). That date was then reset to July 14 (dkt.74), and then to August 1 (dkt.76). Then, on August 1, 2005, we ordered Wal-Mart to submit its determination of negligence by August 15, 2005, and also requested all additional and outstanding discovery matters be submitted by plaintiffs before August 25, 2005 (dkt.77). On August 15, 2005, Wal-Mart requested an extension of time in order to make the negligence determination (dkt.78), and we granted that motion, giving Wal-Mart until August 31, 2005, to make its determination (dkt.80). We also gave plaintiff until September 10, 2005, to submit additional and outstanding discovery (id.
). Proceedings then focused on plaintiffs' motion to compel and Wal-Mart's summary judgment motions. Wal-Mart requested that we stay any ruling on the motion to compel until the summary judgment motions were resolved.
The outstanding discovery that plaintiffs seek includes discovery from the action in the McHenry County court, including interrogatories and several notices to produce. The outstanding discovery also includes plaintiffs' second interrogatories and first request to admit, which were filed in this court. The additional discovery includes plaintiffs' third interrogatories, their second request for production, and second request to admit.
Wal-Mart objects to all discovery requests on four primary grounds. First, it argues that it has already responded to the discovery requests over the course of the three separate actions. Second, Wal-Mart contends that discovery is irrelevant because this court's May 6, 2004, order struck punitive damages for the willful and wanton count, and limited battery to intentional acts. Next, Wal-Mart contends that the discovery sought exceeds the scope of the facts concerning the contact Heidi had with the pharmacy on August 4, 1993. Finally, Wal-Mart asserts that fact discovery is now closed and the requests for admissions are therefore untimely.
*10 Prior to addressing these objections in the context of the specific discovery requested, we must highlight the recent procedural history outlined above. It should be apparent from the history that settlement negotiations interrupted ongoing discovery. After settlement negotiations fizzled, the parties and the court focused on the motion to compel and motions for summary judgment. Discovery in this case did not terminate during the unsuccessful attempt at settlement and the briefing and consideration of the motions. Our August 1, 2005, request for all outstanding and additional discovery is inconsistent with any belief that discovery in this case closed. Moreover, the issues in this case were in some respects in the process of being forged by Wal-Mart's motions, including the motions to dismiss and recent motions for summary judgment. Rulings on those motions have further shaped the issues and focused the scope of discovery. For example, discovery relating to intent and punitive damages is now relevant after the above ruling on plaintiffs' battery claim. Also, the case now stands on different footing than it did in state court and the relevant discovery should not be constrained by the scope of discovery from the McHenry County action.
In reviewing the motion to compel, we conclude that plaintiffs are entitled to most of what they seek. At the same time, we note that the responses may well provide little solace to plaintiffs. In most instances Wal-Mart has provided information, but it is qualified or inconclusive, or incomplete. We do not mean to suggest that a definitive response will necessarily contradict the earlier information.
Plaintiffs first seek answers to questions 8, 9 and 10, from the first set of interrogatories. See
def. Ex. A(A). In question 8, plaintiffs requested any training Wal-Mart provided to pharmacists. Plaintiffs asked what training was provided with respect to Toradol in question 9. And in question 10, plaintiffs asked what requirements pharmacists were expected to meet in order to work at Wal-Mart. In its answers, Wal-Mart objected to question 8 on the ground that it called for a narrative, and it found questions 9 and 10 irrelevant. It asserted that all three questions were more appropriately subjects of a discovery deposition.
Wal-Mart now argues that responses have already been provided to these questions through the depositions of Bowser, Odes and Judith Grauman, the pharmacy technician allegedly on duty on August 4, 1993. However, the proper party to respond to plaintiffs' interrogatories is not the employee, but the employer, and the depositions of the employees do not respond to the questions. Wal-Mart also asserts that it provided a response in its answer to plaintiffs' supplemental interrogatories and requests for production (def. Ex. K, response 1). This response only focuses on any policies and procedures for pharmacists that relate to filling prescriptions, not to the general training that pharmacists received. Also, Wal-Mart claims that its policies and procedures were not written, but this does not respond to questions 8 and 9, which ask about any training provided, not just written training material, or question 10, which asks about general employment standards. Further, questions 8 and 9 relate to punitive damages, which have until now been unavailable to plaintiffs. Wal-Mart's objections to questions 8, 9 and 10 of the first set of interrogatories are overruled.
*11 Plaintiffs next seek to compel Wal-Mart to answer question 16 of the first set of interrogatories. In that question plaintiffs ask for any complaints concerning Toradol, and the details of any existing complaints. Wal-Mart objected to that question as over-broad, but continued to answer that no complaints were “known at this time.” In its response, Wal-Mart reiterates that no complaints “were known to exist.” Wal-Mart also references its response to plaintiffs' first notice to produce (def.Ex. G), and its answer to additional interrogatories (def.Ex. F), which it asserts respond to question 16.
By framing its response in terms of what it did know, instead of what it does know, Wal-Mart fails to respond. In Exhibit F, Wal-Mart responded to questions about “occurrences” similar to the August 4, 1993, incident, but question 16 asks about any complaints. The difference may appear minor, but as the content of question 16 indicates, a complaint would likely generate a larger paper trail than an occurrence would produce. The questions have distinct scopes, and answers contained in Exhibit F do not respond to question 16. Further, in Exhibit F, Wal-Mart notes that its investigation continues, which is not a final and responsive answer, as it was issued a number of years ago. Wal-Mart's reference to Exhibit G is entirely unpersuasive. In response to plaintiffs' first notice to produce, Wal-Mart issued a series of general objections, and then, in response to the first production request, it presented another list of objections that attack the request for being broad, vague, burdensome, without a reasonable scope, duplicative, and costly. The answers to the subsequent eleven questions merely cite to the first response. The responses to requests 3, 4 and 5 in Exhibit G do not count as prior adequate responses. Wal-Mart's objection to question 16 of the first set of interrogatories is overruled.
Plaintiffs also seek to compel Wal-Mart to answer questions 17, 18 and 19 of the first set of interrogatories. In their reply brief, plaintiffs acknowledge that Wal-Mart responded to these questions in its supplemental answers to interrogatories (def.Ex. H). Plaintiffs do not state that either Exhibit G or Exhibit L respond to the questions at issue.
Plaintiffs next seek an answer to interrogatory number 22 of the first set of interrogatories. In that question plaintiffs ask for all lawsuits, including medical malpractice, in which Wal-Mart has been a defendant, and related details, such as the case numbers, the allegations, and the injuries alleged. Plaintiffs argue that the information sought is relevant to issues of liability and punitive damages. Wal-Mart initially objected to that question, citing local state rules. In response to the motion to compel, Wal-Mart claims that it responded to that question in Exhibit G and Exhibit F.
Wal-Mart's citation to local rules is no longer a valid ground for objection. We have noted above that Exhibit G is non-responsive, but this does not mean that Wal-Mart may not object directly to the interrogatory, instead of through reference to a response to the first notice to produce. Exhibit F contains answers to plaintiffs' additional interrogatories, and question 3 asked for any and all lawsuits similar to the August 4, 1993, incident. Wal-Mart answered that no lawsuits were known, but that its investigation was ongoing. This answer is not responsive to interrogatory number 22 because the question posed in the additional interrogatory was narrower in that it only asked for lawsuits arising out of similar occurrences. Moreover, the answer is inconclusive and non-responsive to the extent that it was submitted a number of years ago and mentions an ongoing investigation. Wal-Mart's objections to interrogatory number 22 of the first set of interrogatories are overruled.
*12 In question 24 of the first set of interrogatories plaintiffs ask if any record involving them was manipulated or destroyed. Plaintiff asserts that this information is relevant to issues of liability and punitive damages. Wal-Mart objects to this question and relies on local rules that are not applicable here. Wal-Mart also contends that it previously responded to this question, and it cites its supplemental answers to interrogatories (def.Ex. H). Its response to question 24 was, “None known at this time; investigation continues.” We have already discussed why this answer is not responsive. Wal-Mart's objection to question 24 of the first set of interrogatories is overruled.
Plaintiffs next seek to compel answers to questions 28, 29, 30, 31 and 32 of the first set of interrogatories. Question 28 asks whether Wal-Mart or its attorneys had any correspondence with Heidi's health care treaters. Question 29 asks if any subpoenas were issued to the health care providers, and it also asks if those subpoenas were accompanied by any other correspondences or documents. Question 30 asks if any documents, records or other items were returned in response to the subpoenas. Question 31 asks if any health treaters were deposed, and it also asks for a list of those who possess a record of the depositions. Question 32 asks for details about any documents returned in response to the subpoenas that were not produced at the deposition. Plaintiffs state that these questions are relevant to liability issues and punitive damages. Wal-Mart objects to these interrogatories and again relies on inapplicable local rules. Wal-Mart asserts that it has provided plaintiffs with copies of the subpoenas and records obtained, and also states that plaintiffs were present at the discovery depositions of the health care treaters.
In the supplemental answers to the interrogatories, Wal-Mart provides the “none known at this time; investigation continues” response to questions 29, 30, 31 and 32. That response is not sufficient for the above-discussed reasons. Wal-Mart states that it has provided the subpoenas and records obtained, but plaintiffs maintain that there are still outstanding communications and documentation (plf. reply at 10). Even if plaintiffs were present at the discovery depositions, question 31 also asks for who possesses records made of those depositions. If Wal-Mart has actually provided the documents, correspondence and communications requested, then it is only required to state as much in direct response to the interrogatories. The answers that it provided nine years ago are not satisfactory. The objections to questions 28, 29, 30, 31 and 32 are overruled.
Plaintiffs also seek to compel Wal-Mart's response to the supplemental notice to produce, in which plaintiffs asks for the computer used on August 4, 1993, and any logs or reports relating to that computer's inspection, repair, or malfunction (def.Ex. A(B)). Plaintiffs state that these requests relate to issues of liability and that production is necessary to prevent unfair surprise at trial. Wal-Mart contends that it has already responded to the notice to produce, and cites Exhibits G, I and K. Wal-Mart's position is not persuasive. We noted above that Exhibit G, and its list of general objections, are non-responsive. Exhibit I, which contains Wal-Mart's answers to the first set of interrogatories filed in this court, presents the same list of general objections contained in Exhibit G. Moreover, Wal-Mart identifies question 8, which asks only for the name of the 1993 software program, if it is currently used, and for its production (def.Ex. I). These requests are of a markedly different scope than those in the supplemental notice to produce, which asks for the computer itself and any relevant maintenance and error logs. Wal-Mart provided information about the software program in its answers to the supplemental interrogatories and requests for production (def.Ex. K), but even these answers do not respond to the supplemental notice to produce. As the discussion in the summary judgment section of this order should make clear, the computer is an essential part of plaintiffs' case. Wal-Mart's objections to the supplemental notice to produce the computer and related maintenance records are overruled.
*13 In their supplemental notice to produce, dated October 1, 1998, plaintiffs seek information relating to any Toradol incidents similar to the August 4, 1993, event, including any incident reports or documents, Adverse Drug Reports filed by Wal-Mart, and any claims or lawsuits. Plaintiffs assert that these requests relate to issues of liability, and to prevent unfair surprise at trial. Wal-Mart contends that the information sought can be found in previously filed responses. It first points to the answers to additional interrogatories, Exhibit F.
In Exhibit F, the answers to questions 2 and 3 note an ongoing investigation, which is not responsive. In response to the first question, Wal-Mart states that it did not know of any similar occurrences, which would seem to obviate the need to produce any reports or documents requested in the October 1, 1998, supplemental notice to produce. However, in the interest of conformity, and due to the fact that the answers to the additional interrogatories were submitted over six years ago, we order Wal-Mart to answer request (a). If no similar occurrences are known, then the burden of responding is negligible. Wal-Mart's reliance on Exhibit G fails for the above-stated reasons. Wal-Mart also refers to its answer to plaintiffs' supplemental notice to produce (Ex. L), which was filed in the McHenry County court. The response it highlights only relates to incident reports generated from the August 3, 1994, incident. Plaintiffs seek information relating to any similar occurrences within the five years preceding that incident. Wal-Mart's objections to the supplemental notice to produce, dated October 1, 1998, are overruled.
Plaintiffs next seek a response to their additional notice to produce (def.Ex. A(D)), in which they request copies of written communications that Wal-Mart made to pharmacists for the five years prior to the August 4, 1993, incident. According to plaintiffs, this information is relevant to the issue of liability. Wal-Mart objects, and argues that plaintiffs do not identify any specific request, document or matter. Wal-Mart also references its response to the first notice to produce, in which it objected to a request on the grounds that it calls for work product.
The first notice to produce is not attached as an exhibit, which complicates evaluating the responsiveness of Wal-Mart's answer. Also, we do not believe that written communications that Wal-Mart made to its pharmacists constitute protected attorney work product. With respect to Wal-Mart's objection to the broad scope of the request, we agree with plaintiffs that the request specifically identifies only written communications, and it identifies a specific time period. Rule 34(b) allows for identification of material by category. The objection to the additional notice to produce is overruled.
Plaintiffs filed a second set of interrogatories after Wal-Mart removed this matter to federal court (def.Ex. A(E)), and they now seek to compel Wal-Mart to answer those questions. Plaintiffs assert that the answers to these questions bear on liability and are necessary to prevent unfair surprise at trial. Wal-Mart contends that it has previously responded to the interrogatory questions in its response to the first interrogatories (def.Ex. I), and in its answers to plaintiffs' supplemental interrogatories and requests for production (def.Ex. K). Neither of these documents is responsive to the second set of interrogatories. Wal-Mart's response to the first interrogatories merely contains general objections that, as we have noted above, are inadequate. Moreover, the questions posed in the first interrogatories are different from those presented in the second set. Similarly, the answers provided to the supplemental interrogatories and requests for production do not address the questions in the second set of interrogatories. Wal-Mart has not responded to the second set of interrogatories, and it is now ordered to do so.
*14 Plaintiffs next move to compel Wal-Mart's answer to the first request for admission under Rule 36 (def.Ex. A(F)). Wal-Mart objects to all requests on the ground that they were issued after April 26, 2005, which was the purported fact discovery cutoff date. Wal-Mart also objects on the ground that the court ordered all litigation stayed prior to a scheduled pretrial conference. In response, plaintiffs posit that requests for admissions are not discovery devices but, instead, tools for limiting issues for trial. We agree with the latter proposition but cannot concur with the form. Rule 36 is located in Section V of the Rules of Civil Procedure, which is titled “Depositions and Discovery.” Further, the advisory committee's explanatory statement concerning the 1970 amendments describes a request for admission as a “discovery device.” Requests for admission are thus subject to discovery rules. However, even if April 26, 2005, marked the close of fact discovery, our request on August 1, 2005, which we reiterated on August 17, 2005, for outstanding and additional discovery, indicates that we did not, and still do not find discovery to have terminated. The outstanding and additional discovery is limited and discrete. Wal-Mart's depiction of plaintiffs' discovery requests as “an infinite amount of discovery” (def. surreply at 5) is hyperbole.
In light of the resolution of the summary judgment motions, the admissions requested focus on central issues such as Wal-Mart's knowledge of Heidi's allergies, the status of the computer system, whether or not the computer program was overrode, whether Bowser filled the prescription, whether Dr. Lorenc's office was called, and whether any warnings were given about potential adverse reactions to Toradol. These requests will establish certain facts as true and narrow the issues for trial. Asea, Inc. v. Southern Pacific Transp. Co., 669 F.2d 1242, 1245 (9th Cir.1981). Wal-Mart's objection to the first request for admission is overruled.
Turning to the additional discovery, plaintiffs move to compel Wal-Mart to answer the third interrogatories (def.Ex. A(G)), which includes twelve questions that Wal-Mart believes it has answered in several previously filed responses. However, the responses and answers Wal-Mart identifies do not directly address the questions in the third interrogatories, or are unresponsive for other reasons. For example, the response to the notice to produce (def.Ex. E) and the supplemental answers to interrogatories (def.Ex. H), note that the investigation is ongoing. Answer 1 of the supplemental interrogatories and requests (def.Ex. K) addresses policies relating to the filling of prescriptions, while questions 5 and 7 in the third interrogatory specifically ask for any written notes, communications or internal memorandums regarding the proper number of prescriptions a pharmacist should fill in a certain time period (def.Ex. A(G)). We have addressed above why the response to the first notice to produce (def.Ex. G) and the answers to the first interrogatories (def.Ex. I) are not sufficient. Finally, the information about the computer software in the answers to supplemental interrogatories and requests (def.Ex. K) does not respond to the computer-related questions in the third interrogatories. Wal-Mart's objections to the third interrogatories are overruled.
*15 Plaintiffs also seek to compel Wal-Mart's response to second request for production, which contains nine separate requests (def.Ex. A(H)). Wal-Mart's objections to the second request for production are based on the same answers and responses that it cited in its objection to the third interrogatories. Those objections are overruled for the above-cited reasons. We pause here to address Wal-Mart's claim that plaintiffs assert a new theory of liability when they seek information relating to the workload in the pharmacy. We disagree. The information plaintiffs request support their negligence theory. Moreover, Wal-Mart's position that only August 4, 1993, is relevant is without merit and support. Communications to pharmacists, training provided on the computer system and issues relating to the pharmacists' work load are all relevant to plaintiffs' theories, particularly after the above summary judgment rulings.
Lastly, plaintiffs seek responses to their second Rule 36 request for admission, which contains four separate requests (def.Ex. A(I)).
In support of its objection to the second Rule 36 request, Wal-Mart cites its response to the first Rule 36 request. That objection is overruled for the above-discussed reasons. The requests in the second Rule 36 request are particularly relevant to the battery count, and the responses will focus the issues for trial.
In sum, plaintiffs' motion to compel is granted, except as to questions 17, 18 and 19 of the first interrogatories, which plaintiffs have withdrawn.