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Murphy v. Piper

United States District Court, D. Minnesota

June 4, 2018

Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; and Dionne Swanson; and on behalf of others similarly situated, Plaintiffs,
v.
Emily Johnson Piper, in her capacity as Commissioner of the Minnesota Department of Human Services, Defendant.

          Joseph W. Anthony, Esq., Peter McElligott, Esq., and Steven M. Pincus, Esq., Anthony Ostlund Baer & Louwagie PA; and Justin H. Perl, Esq., Christen Leigh Chapman, Esq., and Steven C. Schmidt, Esq., Mid-Minnesota Legal Aid, counsel for Plaintiffs.

          Janine Wetzel Kimble, Esq., Scott H. Ikeda, Esq., and Aaron Winter, Esq., Minnesota Attorney General's Office, counsel for Defendant.

          ORDER ON MOTIONS TO COMPEL AND ESI PROTOCOL

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' Motion to Compel Discovery (Doc. No. 207), and Defendant's Motion to Compel Discovery (Doc. No. 213). Plaintiffs seek to compel an answer to Interrogatory No. 33 and responses to Document Request No. 43(a) (e) and (f) held by DHS or Lead Agencies. Defendant seeks to compel answers to Interrogatory Nos. 20, 21, 22, 24, 25, and 26, and responses to Document Request Nos. 18 and 19.[1] In addition, Defendant seeks to compel supplementation of Plaintiffs' discovery answers to indicate the relevance of their 100 additional individuals listed in Plaintiffs' Second Amended Initial Disclosures. Also before the Court are the parties' ESI proposals. (Doc. No. 187.) The Court held a hearing on the motions on April 6, 2018, at which the parties were represented by counsel.[2]

         DISCUSSION

         I. Applicable Law

         Federal Rule of Civil Procedure 26 governs discovery in federal court. Fed.R.Civ.P. 26(b)(1). Discovery under the Federal Rules of Civil Procedure, however, is not without bounds even if relevance is shown. Federal Rule of Civil Procedure 26(b)(2)(C) provides:

On motion or on its own, the 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 proposed discovery is outside the scope permitted by Rule 26(b)(1).

         Rule 26(b)(1) provides that:

[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1).

         A. Rule 33 Interrogatories Rule 33 explains that a party answering interrogatories “must furnish the information available to the party.” Fed.R.Civ.P. 33(b)(1)(B). Specifically-and importantly- it must “provide information that is available to it and can be produced without undue labor and expense.” Lindholm v. BMW of N. Am., LLC, Civ. No. 3:15-CV-03003-RAL, 2016 WL 452315, at *5 (D.S.D. Feb. 5, 2016) (quoting Miller v. Pruneda, 236 F.R.D. 277, 282 (N.D. W.Va. 2004)). An individual defendant named in her official capacity must answer interrogatories directed at the government entity “using all reasonably obtainable information within [her] possession, custody or control, including records maintained by [the relevant government entity].” See Tyler v. Suffolk Cty., 256 F.R.D. 34, 37-38 (D. Mass. 2009).

         In raising an objection to an interrogatory, the objecting party has the burden to demonstrate “that the information sought is not reasonably available to it.” Lindholm, 2016 WL 452315, at *5 (citing 8B Charles A. Wright et al., Federal Practice and Procedure § 2174 (3d ed. 2010)). When answering interrogatories, a party has an obligation to make efforts to obtain the desired information. See Id. “If the answering party lacks necessary information to make a full, fair and specific answer to an interrogatory, it should so state under oath and should set forth in detail the efforts made to obtain the information.” Id. (quoting Essex Builders Grp., Inc. v. Amerisure Ins., 230 F.R.D. 682, 685 (M.D. Fla. 2005)); see also Wright, supra, § 2177 & n.5 (“If a party is unable to give a complete answer to an interrogatory, it should furnish any relevant information that is available.”).

         B. Rule 34 Document Requests

         Document requests must “describe with reasonable particularity” the documents sought. Fed.R.Civ.P. 34(b). If a document request comports with Rule 34 and the scope and limits of Rule 26, the responding party must produce documents within its “possession, custody, or control.” Fed.R.Civ.P. 34(a). “The concept of ‘control' . . . is often highly fact-specific.” Benson v. Rosenthal, No. 15-782, 2016 WL 1046126, *4 (E.D. La. Mar. 16, 2016) (quoting Wright, supra, § 2210). “[U]nder some circumstances courts interpret the control concept to go beyond whether the litigant has a legal right to obtain materials and focus on practical ability to obtain them.” Id. (quotations omitted; emphasis added in Benson). The Court has not yet ordered the Defendant to obtain documents from third party agencies.[3]

         I. Plaintiffs' Motion to Compel Discovery

         a. Interrogatory No. 33

         Plaintiffs argue that Defendant must obtain and provide class member related information from lead agencies as requested in Interrogatory No. 33. This interrogatory states as follows:

Identify the Waiver recipients who have been identified as wanting to move from corporate foster care facilities in the Local Planning Grant Reports that have been produced DHSGOR0032379-DHSGOR0032636, and any other related grant reports.

(Doc. No. 210, Pls.' Mem. in Supp. of Mot to Compel Discovery 6.) As explained by Plaintiffs,

DHS has offered opportunities for lead agencies to apply for grants aimed at developing alternatives to corporate foster care for people with disabilities. As part of their obligations under these grants, the grantees (lead agencies) must submit periodic reports on their progress to DHS. As part of discovery, Defendant has produced these Local Planning Grant Reports to Plaintiffs. While these reports do not provide names of individuals, the reports clearly reference specific individuals who have expressed interest in moving out of corporate foster care facilities into alternatives and individuals who have received assistance to move out of corporate foster care facilities.

(Id. at 7.) Plaintiffs contend that Interrogatory No. 33 is specific, proportional, and relevant. Plaintiffs also contend that Defendant has not articulated why this information is not reasonably available to her or why obtaining the information would be unduly burdensome when the provider agreements with lead agencies allow for them to provide DHS with records upon request.

         Defendant objects to Interrogatory No. 33 “because it is overbroad, unduly burdensome and disproportionate, seeks irrelevant information, is vague to the extent it refers to ‘related grant reports, ' and to the extent it seeks information protected by the attorney-client or work product privileges.” (Doc. No. 210 at 6.) Subject to its objections, Defendant states that “individuals are not ‘identified' in grant reports, ” and “[t]o the extent Defendant has responsive information in its possession, custody, or control, it has already been produced in the form of grant reports.” (Id.) If Plaintiffs seek further information that is in the possession, custody, or control of lead agencies, Defendant argues Federal Rule of Civil Procedure 45 governing subpoenas is the proper vehicle.

         Defendant further represents that she does not know the identity of the Waiver recipients sought in Interrogatory No. 33, and that the identities are not in her possession, custody, or control. Plaintiffs argue that the reports Defendant received from certain lead agencies “clearly reference specific individuals who have expressed interest in moving out of corporate foster care facilities into alternatives and individuals who have received assistance to move out of corporate foster care facilities” and that Defendant can request the identities of the individuals from the lead agencies. (Id. at 7, 11.)

         Although “[a] party . . . must provide by way of answers to interrogatories the relevant facts readily available to it[, ] . . . it should not be required to enter upon extensive independent research in order to acquire such information.” La Chemise Lacoste v. Alligator Co., 60 F.R.D. 164, 171 (D. Del. 1973); see also Miller, 236 F.R.D. at 282 (stating that an interrogatory may not demand “extensive investigations or . . . complex research”); Fischer & Porter Co. v. Sheffield Corp., 31 F.R.D. 534, 537 (D. Del. 1962) (“[A] party is not required to make research or compilation of data except that within its own knowledge.”) (quotations omitted). If the circumstances were different and the reports at issue were prepared by DHS, the outcome on a motion to compel might be different.[4] However, based on the information before the Court, Plaintiff's motion with respect to Interrogatory No. 33 is denied.

         b. Revised Document Request No. 43

         Revised Document Request No. 43 states as follows:

Provide the MnCHOICES assessment, Case Support Plan, Community Services and Support Plan, My Move Form, transition plan, person-centered plan, correspondence between the Waiver recipient and case manager, lead agency and/or DHS, and case notes since January 1, 2015 for the following individuals:
a. Waiver recipients identified through providing responsive documents to Plaintiffs' document request numbers 35 and 44;
e. The 42 individuals that Defendant identified as having expressed that they wanted to move from corporate foster care facilities to alternatives during ...

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