eDiscovery Assistant

Boykins v. Trinity, Inc.

2020 WL 13594956 (E.D. Mich. 2020)

September 15, 2020

Stafford, Elizabeth A., United States Magistrate Judge

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Summary

The court granted the plaintiff's motion to strike defendants' discovery objections, to compel complete answers to plaintiff's discovery requests, to compel depositions, and to award plaintiff reasonable expenses. Defendants must provide complete answers and responses to plaintiff's discovery requests, and must provide available dates for the depositions of the witnesses plaintiff seeks to depose by October 6, 2020. Failure to comply may result in sanctions.

Additional Decisions

CAROL BOYKINS, as Personal Representative for the Estate of CARL JOHNSON, JR., deceased, Plaintiff,
v.
TRINITY, INC., et al., Defendants

Civil Action No.: 18-13931

United States District Court, E.D. Michigan, Southern Division

Filed September 15, 2020

Counsel

Joseph J. Ceglarek, II, The Sam Bernstein Law Firm, PLLC, Farmington Hills, MI, for Plaintiff.
John W. Sechler, Wilson Elser Moskowitz Edelman & Dicker, LLP, Livonia, MI, Cara M. Swindlehurst, Gordon Rees Scully Mansukhani, Detroit, MI, John T. Eads, III, Gordon Rees Scully Mansukhani, Bloomfield Hills, MI, Juliana B. Sabatini Plastiras, Mike Morse Law Firm, Southfield, MI, Melissa Murphy-Petros, Wilson Elser Moskowitz Edelman & Dicker, LLP, Chicago, IL, for Defendant Trinity Inc.
John T. Eads, III, Gordon Rees Scully Mansukhani, Bloomfield Hills, MI, Cara M. Swindlehurst, Gordon Rees Scully Mansukhani, Detroit, MI, Juliana B. Sabatini Plastiras, Mike Morse Law Firm, Southfield, MI, Melissa Murphy-Petros, Wilson Elser Moskowitz Edelman & Dicker, LLP, Chicago, IL, for Defendants Detroit Public Schools Community District, Shirley MacAlpine.
John T. Eads, III, Gordon Rees Scully Mansukhani, Bloomfield Hills, MI, for Defendants Jane Doe, Jane Doe, II.
Jonathan M. Jaffa, Ronald S. Lederman, Todd A. McConaghy, Sullivan, Ward, Patton, Gleeson & Felty, P.C., Southfield, MI, for Defendant Mary Burns, RN.
Richard A. Joslin, Jr., Collins, Einhorn, Southfield, MI, for Defendant Melinda Lawery, RN.

Stafford, Elizabeth A., United States Magistrate Judge

OPINION AND ORDER GRANTING PLAINTIFF'S SECOND MOTION TO STRIKE OBJECTIONS AND ENTER SANCTIONS FOR DISCOVERY VIOLATIONS [ECF NO. 50]

This lawsuit arises from the July 2018 death of Carl Johnson, Jr., on a school bus. The initial complaint was filed in December 2018.

In January 2020, the Honorable Arthur J. Tarnow granted in part defendants' motion to stay proceedings and denied as moot plaintiff's motion to strike defendants' objections and to compel discovery. [ECF No. 37]. But Judge Tarnow instructed defendants to “provide the discoverable documentation that Plaintiff requests within 28 days. Depositions should be scheduled shortly thereafter.” [ECF No. 37]. In July 2020, plaintiff filed a second motion to strike all of defendants' discovery objections, to compel responses to interrogatories, to compel responses to requests for production of documents and to compel depositions. [ECF No. 50]. Judge Tarnow referred the motion to the undersigned for hearing and determination. [ECF No. 51].

Plaintiff should be aware that its motion and reply brief failed to comply with local rules. First, plaintiff's motion did not include a verbatim recitation of each of the discovery requests, responses and objections, as required by E.D. Mich. LR 37.2. Second, plaintiff's reply brief included exhibits in a manner that failed to comply with E.D. Mich. Electronic Filing Policies and Procedures, R19.[1] Despite these procedural deficiencies, plaintiff's motion is well taken.

“Discovery is the lifeblood of litigation and, as such, it ‘must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, to achieve a proper purpose (i.e., not to harass, unnecessarily delay, or impose needless expense).’ ” Siser N. Am., Inc. v. Herika G. Inc., 325 F.R.D. 200, 202 (E.D. Mich. 2018) (quoting Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 360 (D. Md. 2008)). Here, defendants failed to apprise themselves of the requirements of the Federal Rules of Civil Procedure, did not respond to discovery requests responsibly, and have caused needless delay.

As an initial matter, defendants' responses to the interrogatories are not signed by a party making the answer, in violation for Federal Rule of Civil Procedure 33(b)(5). [ECF No. 59, PageID.1869-1882]. More problematically, defendants pervasively asserted boilerplate, evasive objections to plaintiff's discovery requests. [Id.].

The federal rules require that objections to discovery requests be made with specificity. Rule 33(b)(4); Fed. R. Civ. P. 34(b)(2)(B). For requests for production of documents, “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” Rule 34(b)(2). “Federal Rules of Civil Procedure 33 and 34 are structured such that, in combination with [Federal Rule of Civil Procedure] 26(g)(1), both the requesting party and the court may be assured that all responsive, non-privileged materials are being produced, except to the extent a valid objection has been made.” Burrell v. Duhon, No. 518CV00141TBRLLK, 2019 WL 2319525, at *2 (W.D. Ky. May 31, 2019).

Because of the requirement that objections be made with specificity, “[b]oilerplate objections are legally meaningless and amount to a waiver of an objection.” Siser, 325 F.R.D. at 209–10; see also Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 192 (N.D. Iowa 2017) (“NO MORE WARNINGS. IN THE FUTURE, USING ‘BOILERPLATE’ OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.”). In the same vein, “[e]vasive and incomplete answers to discovery requests are tantamount to no answer at all.” Siser, 325 F.R.D. at 201; see also Fed. R. Civ. P. 37(a)(4) (“[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”).

In addition to making boilerplate and evasive objections, defendants persistently failed to state whether any responsive material was withheld because of their objections. Even their partial answers were provided “without waiving said objection[s],” and with no indication of whether any documents were withheld. [ECF No. 59, PageID.1869-1882]. Some of defendants' objections are based on asserted privileges, but they include no privilege log as required by Rule 26(b)(5)(A)(ii). See Siser, 325 F.R.D. at 204. They object to answering an interrogatory “to the extent” that it calls for information protected by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(b)(2)(B) and the Health Insurance Portability Act (HIPAA), 42 U.S.C. § 1320d-6. [ECF No. 59, PageID.1877]. But defendants do not clarify if information covered by those statutes exists nor how those statutes are applicable to information within their possession. See Caring Senior Serv. Franchise P'ship L.P. v. Batson, No. 1:06-CV-82, 2006 WL 8442200, at *3 (E.D. Tenn. July 7, 2006) (“Defendants must first show that HIPAA's privacy provisions apply to its operations.”).

Defendants also repeatedly object that discovery requests are unduly burdensome. A party objecting to a request for production of documents as burdensome must support that objection with affidavits, other evidence or at least common sense to substantiate its objections. In re Heparin Products Liab. Litig., 273 F.R.D. 399, 410-11 (N.D. Ohio 2011); Vallejo v. Amgen, Inc., 903 F.3d 733, 743-44 (8th Cir. 2018). Defendants have made no attempt to substantiate their claim that plaintiff's requests were too burdensome.

Defendants objected that some discovery requests relate to inadmissible evidence, while Rule 26(b)(1) plainly states, “Information within this scope of discovery need not be admissible in evidence to be discoverable.” They also object that some discovery requests “are not reasonably calculated to lead to the discovery of admissible evidence,” which refers to an outdated version of Rule 26(b)(1). Cratty v. City of Wyandotte, 296 F. Supp. 3d 854, 858 (E.D. Mich. 2017); Cole's Wexford Hotel, Inc. v. Highmark Inc., 209 F.Supp.3d 810, 821 (W.D. Pa. 2016); Fischer v. Forrest, No. 14CIV1304PAEAJP, 2017 WL 773694, at *2 (S.D.N.Y. Feb. 28, 2017).

Defendants include a most curious objection that “discovery is ongoing and [it] reserves the right to supplement.” [ECF No. 56-4, PageID.1690]. That objection is frivolous. Defendants also object to answering an interrogatory because answering it is against their policy. [Id., PageID.1692]. Defendants have no right to oppose discovery because of their internal policies.

And, in their objections to discovery and response to plaintiff's second motion to strike, defendants wrongly rely on Michigan law about the scope of discovery and discovery sanctions. [ECF No. 56, PageID.1673-1674; ECF No. 59, PageID.1871-1872, 1877-1881]. The Federal Rules of Civil Procedure and interpreting case law apply to cases litigated in federal court even when, as here, some claims arise under state law. Hanna v. Plumer, 380 U.S. 460, 465 (1965). Plaintiff cited Federal Rule of Civil Procedure 37 as authorizing sanctions against a party who has violated the discovery rules, [ECF No. 50, PageID.1565], but defendants' response relies primarily on a 1990 Michigan Court of Appeals opinion. [ECF No. 56, PageID.1674]. They allege that the Michigan opinion is “persuasive” on the issue of sanctions. [ECF No. 56, PageID.1674]. Defendants do cite Tisdale v. Federal Express, which addressed sanctions under Rule 37(c)(1) for failure to supplement an earlier discovery response. 415 F.3d 516, 525 (6th Cir. 2005). That is not the section of Rule 37 that applies here.

Under Rule 37(a)(5)(A), when a court grants a motion to compel, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” The award of reasonable expenses is mandatory unless “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Rule 37(a)(5)(A). None of these exceptions apply here. To the contrary, because defendants have shown a total disregard for the Federal Rules of Civil Procedure, the ends of justice are best served by requiring defendants to pay plaintiff's reasonable expenses.

Plaintiff complains in the July 2020 second motion to strike that defendants failed to follow-up with requests to schedule all but two of the witnesses who plaintiff sought to depose. [ECF No. 50, PageID.1564]. In response, defendants argue that the delay in scheduling the depositions was caused by the COVID-19 pandemic. [ECF No. 56, PageID.1672-1673]. The Court understands that the pandemic has in general delayed litigation, but it does not excuse the extent to which defendants have dragged their feet in scheduling depositions. Defendants also alleged that the delay in scheduling the depositions was justified by the Court's stay order. [ECF No. 56, PageID.1662]. Yet, in January 2020, Judge Tarnow only granted the motion to stay in part, and specifically instructed that the production of documents and depositions should proceed despite the partial stay. [ECF No. 37].

In sum, defendants' disregard for the requirements of the Federal Rules of Civil Procedure has been egregious and inexcusable.

The Court GRANTS plaintiff's motion second motion to strike objections, to compel complete answers to plaintiff's discovery requests, to compel depositions and to award plaintiff reasonable expenses under Rule 37(a)(5)(A). [ECF No. 50]. Defendants must provide complete answers and responses to plaintiff's discovery requests, and must provide available dates for the depositions of the witnesses plaintiff seeks to depose, by October 6, 2020. By the same date, plaintiff must file a bill of costs and defendants may respond to the bill of costs by October 20, 2020.

The Court warns defendants that failure to comply with this order may result in sanctions under Rule 37(b)(2) or the Court's inherent authority, up to and including a default judgment against them.

Footnotes

[1]

R19(b) states in part, “(2) The filing user must prepare an index of exhibits and file the index as the first attachment to the paper. Each exhibit must be described on the index both by an exhibit identifier and by a brief narrative description.... (3) Each exhibit must then be filed and identified as a separate attachment to the paper and must be labeled in the electronic record with an exhibit identifier and brief narrative description.” http://www.mied.uscourts.gov/PDFFIles/policies_procedures.pdf