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Lewis v. Donley

July 22, 2009


The opinion of the court was delivered by: John W. Sedwick United States District Judge


[Motions at Dockets 130 and 148]


At docket 130, plaintiff Janet D. Lewis moves to compel defendants Michael B. Donley and the United States of America to respond to various discovery requests and for reasonable fees and costs associated with the motion. Defendants oppose the motion at docket 141. Plaintiff replies at docket 146. Defendants supplemented their opposition brief at docket 149.

Defendants move for oral argument or for leave to file a sur-reply at docket 148. Plaintiff does not oppose the motion for oral argument, but opposes the motion for leave to file a sur-reply at docket 155. Because the government has failed to provide the court with a copy of its proposed sur-reply in violation of Local Rule 7.1(h)(1) and because the court does not believe oral argument would be helpful at this time, the court denies defendants' motion for oral argument or leave to file a sur-reply.


Much of the background is recited in the court's order at docket 140 and will not be repeated here. Lewis served defendants with discovery requests on January 26, 2009, including 16 interrogatories and 130 requests for production. A joint protective order was entered on February 17, 2009. The parties agreed to a mutual extension of time to respond to pending discovery requests on February 19, 2009 and again on March 9, 2009. Defendants were denied a third request for an extension and responded to plaintiff's requests on April 2 and 3, 2009. On April 21, plaintiff's counsel sent a letter to defense counsel requesting a site visit to copy some additional documents. On April 24, 27, and 28, 2009 and May 26-28, 2009, plaintiff's counsel was permitted to inspect documents on base and at the United States Attorney's office. Plaintiff's counsel still believes that defense counsel has withheld and potentially destroyed relevant documents.

At present, defendants have responded to all of Lewis' requests for admission, have produced over 20,000 pages of documents in response to Lewis' requests for production, and have responded to 32 of Lewis' interrogatories. Since Lewis filed the present motion, defendants have continued to provide additional responses to various requests, including requests that were the subject of the present motion. Therefore, this order addresses only Lewis' remaining interrogatory requests and requests for production. In addition, the court addresses (1) Lewis' contention that defendants should be compelled to respond to all of her interrogatories on the ground that Lewis was compelled during her Merit Systems Protection Board ("MSPB") hearings to respond to similar interrogatories, and (2) Lewis' argument that defendants have improperly withheld or spoiled evidence.


Federal Rule of Civil Procedure 26(b)(1), which concerns the appropriate scope of discovery in civil litigation, states, in pertinent part, that:

"[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."

Rule 26(b)(2)(C) circumscribes the court's power to order discovery as follows:

"[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues."

Although "[t]he purpose of discovery is to provide a mechanism for making relevant information available to the litigants," "the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses."*fn1

Rule 33(a)(1) provides that "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts," as long as the requests seek information within the scope of Rule 26(b). A party seeking to propound more than 25 interrogatories must secure leave of court in order to do so.*fn2 "Parties cannot evade this presumptive limitation through the device of joining as 'subparts' questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication."*fn3 Similarly, Rule 34(a)(1) states that:

"[a] party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form."

Rule 37(a)(3)(B), which governs motions to compel discovery, permits a party seeking discovery to move for an order compelling an answer or production if "a party fails to answer an interrogatory submitted under Rule 33"*fn4 or "a party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34."*fn5 A motion to compel "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action."*fn6 If the court grants the motion or orders a response or disclosure,

"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. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or ...

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