*1 BY MAIL

Amanda Norris

Joseph Norris, III

8616 Inwood Road

Windsor Mill, MD 21244

Matthew D. Berkowitz, Esq.

Sarah A. James, Esq.

Carr Maloney PC

2020 K Street NW, Suite 850

Washington, DC 20006

Daniel J. Tobin, Esq.

Matthew D. Lamb, Esq.

Ballard Spahr LLP

1909 K Street NW, 12th Floor

Washington, DC 20006

Dear Counsel and Ms. & Mr. Norris:

I have reviewed defendants’ filings pertaining to (1) the pending discovery dispute between plaintiffs and defendant Safeguard Properties (“Safeguard”) (ECF Nos. 55, 58, 59) and (2) the pending discovery dispute between plaintiffs and defendant PNC Bank, N.A. (“PNC”) (ECF Nos. 57, 60). I have also reviewed plaintiffs’ informal discovery dispute letter and accompanying exhibits dated September 27, 2021. The parties’ disputes are addressed below.

1. Discovery Dispute Between Plaintiffs and Defendant Safeguard Properties (ECF Nos. 55, 58, 59)

The dispute between plaintiffs and Safeguard involves three issues: (1) whether Safeguard's responses to 8 interrogatories and 7 requests for production of documents were adequate, (2) plaintiffs’ designation of “everything about son” and “everything about 1 East Chase St.” as confidential, and (3) changes made by plaintiffs to their deposition transcripts. As a preliminary matter regarding the first issue, the court notes that plaintiffs’ requests in their Motion to Compel (ECF No. 59-4) are generally overly broad and, in some cases, as Safeguard notes, plaintiffs ask for documents and information which were not in their original requests. Accordingly, the court finds Safeguard's responses to Interrogatory Nos. 1, 11, 16, and 18 to be adequate.

With respect to Interrogatory Nos. 10, 12, and 13, however, Safeguard refers to documents and information in such generic terms that plaintiffs are unlikely to locate and identify them as readily as Safeguard could.[1] Federal Rule of Civil Procedure 33(d)(1) provides that “if the burden of deriving or ascertaining the answer [to an interrogatory] will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could ....” Fed. R. Civ. P. 33(d)(1). In accordance with Rule 33(d)(1), Safeguard is directed to supplement its responses to Interrogatory Nos. 10, 12, and 13 to more specifically identify the documents and information noted in its responses so that plaintiffs can identify and locate the documents which are responsive to each interrogatory.

Additionally, with respect to Interrogatory No. 6, plaintiffs ask Safeguard to identify “all claims, suits, [and] complaints, for each instance in which [Safeguard has] been a party to or had involvement in any claim, lawsuit, or judicial proceeding” related to the allegations in this case for the past 10 years. (ECF No. 59-5 at 2). The court concludes that plaintiffs’ request is overly broad, and the request should be narrowed to the years 2016 through 2020, given that plaintiffs’ claims relate to conduct which occurred from October 2017 through December 2017. (ECF No. 2 at ¶ 7). Accordingly, Safeguard is directed to respond to plaintiffs’ Interrogatory No. 6 but only as to the claims, lawsuits, or judicial proceedings which included allegations similar to those alleged in this case for the time period from 2016 through 2020.

*2 As to plaintiffs’ First Request for Production of Documents, the court finds Safeguard's responses to Document Request Nos. 1, 3, and 4 to be adequate. In addition, with respect to plaintiffs’ Second Request for Production of Documents, the court finds Safeguard's responses to Document Request Nos. 2, 3, and 10 to be adequate. The court finds Safeguard's response to Document Request No. 8 (ECF No. 59-5 at 10), however, to be inadequate. While the court notes that Safeguard has produced a copy of the declaration page of the insurance policy at issue in the request, plaintiffs are entitled to the entire insurance policy. Safeguard, therefore, is directed to produce an unredacted version of the entire insurance policy to plaintiffs, but Safeguard may redact the premium information because it is not relevant to plaintiffs’ claims.

Finally, Safeguard asserts in several of its responses to plaintiffs that it has withheld certain information requested by plaintiffs because it is privileged. (ECF No. 59-5 at 2, 5-10). It is not clear, however, whether Safeguard has produced a privilege log to plaintiffs. Accordingly, the court directs Safeguard to produce a privilege log to plaintiffs identifying any documents withheld on the basis of privilege.

The second issue pertains to plaintiffs’ designation of “everything about son” and “everything about 1 East Chase St.” as confidential. On April 22, 2021 all parties in this case entered a Stipulated Order Regarding Confidentiality of Discovery Material (“Confidentiality Order”) allowing any party to designate certain discovery material as confidential “when such person in good faith believes it contains sensitive personal information, trade secrets or other confidential research, development, or commercial information which is in fact confidential.” (ECF No. 38 at ¶ 1(a)). In addition, “[p]ortions of depositions of a party's present and former officers, directors, employees, agents, experts, and representatives shall be deemed confidential ....” (Id. at ¶ 1(b)). Safeguard opposes plaintiffs’ designations. With respect to plaintiffs’ designation of “everything about son” as confidential, Safeguard agrees to keep the son's name confidential but argues that the use of the word “son” and references to plaintiffs’ son are not confidential because plaintiffs publicly referenced their son in their complaint. (ECF No. 59 at 2). As to plaintiffs’ designation of “everything about 1 East Chase St.” as confidential, Safeguard contends that there is nothing inherently confidential about the address. (Id.)

With respect to plaintiffs’ designation of “everything about son” as confidential, the court concludes that Safeguard's proposal is reasonable, that is, that the son's name shall remain confidential, but the words “son” and “child” and any references to plaintiffs’ son or child are not confidential. Further, as Safeguard notes, plaintiffs publicly referenced their “child” in their complaint. (ECF No. 2 at ¶ 7). While “child” is a gender-neutral term, plaintiffs provide no good reason why references to their “son” should be confidential. Similarly, with respect to plaintiffs’ designation of “everything about 1 East Chase St.” as confidential, the court notes that plaintiffs have not articulated any reason why the address should be confidential. Accordingly, while plaintiffs’ son's name should be kept confidential, references to plaintiffs’ “son” or “child” are not appropriately designated as confidential. The court also concludes that the 1 East Chase St. address and references to that address shall not be subject to a confidential designation pursuant to the Confidentiality Order.

Relatedly, on September 24, 2021 Safeguard submitted a Motion for Leave to File Discovery Dispute Letter Under Seal and to Exceed Page Limit (“Motion for Leave to File Under Seal”). (ECF No. 58). In ruling on a motion to seal, the court must: (1) give the public notice that the sealing of documents may be ordered; (2) provide interested parties the opportunity to object to the motion; (3) state reasons on the record if the court decides to seal the case; and (4) state reasons for rejecting alternatives. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir. 1988). The public notice and opportunity to object requirements are met “when the court allows sufficient time for objections to be made.” Bureau of Nat'l Affairs v. Chase, No. ELH-11-1641, 2012 WL 3065352, at *2 (D. Md. July 25, 2012). When motions have been docketed and available to the public for multiple weeks, the first two requirements have been met. Padco Advisors, Inc. v. Omdahl, 179 F.Supp.2d 600, 614 (D. Md. 2002). In light of my ruling above regarding plaintiffs’ designations of “everything about son” and “everything about 1 East Chase St.” as confidential, it is unclear whether Safeguard's discovery dispute letter (ECF No. 59) should be sealed for reasons other than Safeguard's references to plaintiffs’ son and the 1 East Chase St. address. Accordingly, I will not rule on Safeguard's Motion for Leave to File Under Seal (ECF No. 58) at this time. The parties, therefore, should confer and file a joint submission by no later than November 15, 2021 advising me whether there are matters other than plaintiffs’ son and the 1 East Chase St. address that would justify the sealing of Safeguard's discovery dispute letter.

*3 The third issue between plaintiffs and Safeguard is whether changes made by plaintiffs to their deposition transcripts were improper. A deponent is permitted to review their deposition transcript and “if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.” Fed. R. Civ. P. 30(e)(1). In this case, however, plaintiffs did not provide reasons for their changes to their deposition transcripts. (See ECF No. 59-6 at 1-2). Plaintiffs, therefore, are directed to specify a reason for each of the changes made in their errata sheets and provide those reasons to defense counsel. Further, Safeguard's request to strike all substantive changes made by plaintiffs in their errata sheets is premature as the relevant deposition questions, answers, proposed changes, and the import of those changes would be more appropriately addressed on summary judgment. See Linderborn v. Armadillo Ventures, LLC, Civil No. CCB-19-2532, 2021 WL 322179, at *2-4 (D. Md. Feb. 1, 2021) (denying the defendant's motion to strike the plaintiff's errata sheet in the context of a motion for summary judgment). Accordingly, Safeguard's request to strike all substantive changes made by plaintiffs to their deposition testimony is denied.

In conclusion, plaintiffs are directed to produce their reasons for each of the deposition transcript changes made in their errata sheets to defense counsel by no later than November 15, 2021. Further, Safeguard is directed to do the following by no later than November 15, 2021: (1) supplement its responses to Interrogatory Nos. 10, 12, and 13 to more specifically identify the documents and information noted in its responses so that plaintiffs can locate and identify the documents and information as readily as Safeguard could in accordance with Rule 33(d)(1), (2) respond to plaintiffs’ Interrogatory No. 6 but only as to the claims, lawsuits, or judicial proceedings which included allegations similar to those made by plaintiffs in this case from 2016 through 2020, (3) produce a privilege log to plaintiffs, if Safeguard has one, identifying any documents withheld on the basis of privilege, and (4) produce to plaintiffs an un-redacted version of the entire insurance policy referenced in its response to Document Request No. 8 (ECF No. 59-5 at 10), although Safeguard may redact the premium information.

In addition, plaintiffs and Safeguard are directed to file a joint submission advising me whether there are matters unrelated to plaintiffs’ son and the 1 East Chase St. address that would justify the sealing of Safeguard's discovery dispute letter by no later than November 15, 2021.

2. Discovery Dispute Between Plaintiffs and Defendant PNC Bank, N.A. (ECF Nos. 57, 60)

The dispute between plaintiffs and PNC involves two issues: (1) plaintiffs’ request to compel responses to 15 interrogatories and 12 requests for production of documents and PNC's related request for an award of fees and costs, and (2) plaintiffs’ request to quash a document subpoena served by PNC on Baltimore Gas & Electric (“BG&E”).

With respect to the first issue, the court finds PNC's responses to Interrogatory Nos. 1, 11, 12, 16, 17, 18, and 21 to be adequate. With respect to Interrogatory Nos. 2, 3, 9, 10, 13, 19, and 20, however, PNC refers generally to “documents to be produced in discovery” or “documents to be produced in the case.” (ECF No. 60-1 at 4, 6-7, 9). As discussed above, “if the burden of deriving or ascertaining the answer [to an interrogatory] will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could ....” Fed. R. Civ. P. 33(d)(1). In this case, PNC's references to “documents to be produced in discovery” or “documents to be produced in the case” do not provide sufficient detail for plaintiffs to locate and identify the documents as readily as PNC could. In accordance with Rule 33(d)(1), therefore, PNC is directed to supplement its responses to Interrogatory Nos. 2, 3, 9, 10, 13, 19, and 20 to more specifically identify the documents noted in its responses so that plaintiffs can locate and identify the documents as readily as PNC could.

*4 With respect to Interrogatory No. 6, plaintiffs ask PNC to identify “all claims, suits, [and] complaints, for each instance in which [PNC has] been a party to any claim, lawsuit, or judicial proceeding” related to the allegations in this case. (ECF No. 60-1 at 5). As discussed above, plaintiffs’ request is overly broad and should be narrowed to include information for the years 2016 through 2020. Accordingly, PNC is directed to respond to plaintiffs’ Interrogatory No. 6 but only as to the claims, lawsuits, or judicial proceedings which include allegations similar to those made by plaintiffs in this case from 2016 through 2020, given that plaintiffs’ claims relate to conduct which occurred from October 2017 through December 2017. (ECF No. 2 at ¶ 7).

As to plaintiffs’ First Request for Production of Documents, the court finds PNC's responses to Document Request Nos. 1, 2, 3, and 4 to be adequate. In addition, with respect to plaintiffs’ Second Request for Production of Documents, the court finds PNC's responses to Document Request Nos. 2, 3, 4, 5, 7, 8, 9, and 10 to be adequate. In its responses to Document Requests Nos. 3, 5, 7, 9, and 10, PNC noted that it would produce responsive, non-privileged documents within 30 days after the court entered a confidentiality order. (ECF No. 60-2 at 9-12). The court notes that a confidentiality order was entered on April 22, 2021 (ECF No. 38) and, therefore, assumes that PNC has produced the documents they indicated they would. If any responsive documents have not yet been produced to plaintiffs, PNC should do so.

PNC requests an award of fees pursuant to Federal Rule of Civil Procedure 37(a)(5)(B) because plaintiffs’ position regarding Interrogatory Nos. 6, 16, 17, and Document Request No. 4 from plaintiffs’ First Request for Production of Documents is not substantially justified. (ECF No. 60). The court may award expenses to the non-moving party if a motion to compel discovery is denied, unless “the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). “A motion is substantially justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Hare v. Comcast Cable Commc'ns Mgmt, LLC, 564 Fed. Appx. 23, 24-25 (4th Cir. 2014) (citation and quotation marks omitted) (affirming an award of fees for the defendant when the plaintiff's requests to compel and extend discovery and to strike defendant's opposition contained substantial misrepresentations). In this case, however, PNC does not argue that plaintiffs propounded Interrogatory Nos. 6, 16, 17 and Document Request No. 4 in bad faith or that those requests contained substantial misrepresentations. The court concludes, therefore, that an award of fees pursuant to Rule 37(a)(5)(B) is not appropriate under the circumstances. Accordingly, PNC's request for an award of fees pursuant to Rule 37(a)(5)(B) is denied.

The second issue between plaintiffs and PNC pertains to plaintiffs’ request to quash a document subpoena served by PNC on BG&E. As PNC notes, however, plaintiffs’ request is moot because BG&E already produced responsive documents on July 20, 2021. (ECF No. 60 at 2). Accordingly, plaintiffs’ request to quash the document subpoena served by PNC on BG&E is denied.

In conclusion, PNC is directed to do the following by no later than November 15, 2021: (1) supplement its responses to Interrogatory Nos. 2, 3, 9, 10, 13, 19, and 20 to more specifically identify the documents noted in its responses so that plaintiffs can locate and identify the documents as readily as PNC could, (2) respond to plaintiffs’ Interrogatory No. 6 but only as to the claims, lawsuits, or judicial proceedings which include allegations similar to those made by plaintiffs in this case from 2016 through 2020, and (3) produce responsive documents to plaintiffs regarding Document Requests Nos. 3, 5, 7, 9, and 10 in plaintiffs’ Second Request for Production of Documents (ECF No. 60-2 at 9-12). In addition, it is unclear whether PNC has produced a privilege log to plaintiffs. Accordingly, if PNC has not already done so, the court directs PNC to produce a privilege log to plaintiffs identifying any documents withheld on the basis of privilege by no later than November 15, 2021.

*5 Notwithstanding the informal nature of this letter, it is an order of the court and should be docketed accordingly.

In its response to Interrogatory Nos. 10 and 13, Safeguard “refers Plaintiffs to the documents it produced in this matter (subject to a protective order).” (ECF No. 59-5 at 3, 5). Similarly, in its response to Interrogatory No. 12, Safeguard refers plaintiffs to “photos and documents produced in this matter (subject to a protective order).” (Id. at 4).