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Gluck v. Ansett Australia Ltd.

December 14, 2001

RONALD G. GLUCK, PLAINTIFF,
v.
ANSETT AUSTRALIA LTD., DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Ronald G. Gluck, alleges he was injured during a flight on an airplane owned by defendant Ansett Airlines of Australia ("Ansett Airlines"). The plaintiff, appearing pro se, has moved this court to reconsider four rulings by the magistrate judge denying plaintiff's motions to compel and granting the defendant's motion for a protective order. Because it was not clearly erroneous or contrary to law for the magistrate judge to issue a protective order or deny the motions to compel production of documents, responses to interrogatories, and information under Fed. R. Civ. P. 26(a)(1)(A) and (B), plaintiff's motion for reconsideration of the magistrate judge's denial of these motions will be denied. Because plaintiff is entitled to insurance information pursuant to Rule 26(a)(1)(D), plaintiff's motion for reconsideration of the denial of his motion to compel insurance information will granted.

BACKGROUND

The plaintiff is suing the defendant for an injury he allegedly sustained to his left ear while traveling on defendant's airline. (Mem. of P. & A. in Supp. of Pl.'s Mot. for Recons. of the Denial of the First Mot. to Compel Produc. of Docs. and Answers to Interrogs. ("Pl.'s Recons. First Mot.") at 4.) The scheduling order in this case bifurcated the discovery process into two phases. The first phase of discovery was limited to issues of venue, jurisdiction and whether an accident took place. At plaintiff's request, the original February 23, 2001 deadline to complete phase one discovery was extended to April 30, 2001.

Dissatisfied with the responses he received to his discovery requests, plaintiff filed two motions to compel the production of documents and answers to interrogatories for two sets of discovery requests and a motion to compel Rule 26 disclosures. Magistrate Judge Deborah Robinson held a hearing on May 1, 2001 and denied all three motions.

On April 23, 25 and 26, 2001, just days before the April 30, 2001 discovery cutoff date, the plaintiff filed three separate requests for admission pursuant to Rule 36 of the Federal Rules of Civil Procedure. Claiming that the plaintiff failed to timely serve his discovery requests, the defendant moved, on May 23, 2001, for a protective order seeking permission not to respond to the three separate requests. (Def.'s Mot. for a Protective Order at 1.) Magistrate Judge Robinson granted the defendant's motion for a protective order because the thirty-day period that a served party has to respond to a request for admission would have ended beyond the April 30, 2001 date for completing the first phase of discovery. (Def.'s Opp'n to Pl's Mot. to Recons. the Protective Order at 1-2.) The plaintiff has moved for reconsideration of the denial of his motions to compel and the granting of the defendant's motion for a protective order.

DISCUSSION

Pursuant to Fed. R. Civ. P. 72(a) and Local Civil Rule 72.2(b), a party may seek reconsideration of a magistrate judge's ruling on a nondispositive, discovery dispute. See Fed. R. Civ. P. 72(a); LCvR 72.2. A magistrate judge's ruling is entitled to deference and must be modified or set aside only if it is found to be "clearly erroneous or contrary to law." See Fed. R. Civ. P. 72(a); Neuder v. Battelle Pac. Northwest Nat'l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000); Arakelian v. National W. Life Ins. Co., 126 F.R.D. 1, 2 (D.D.C. 1989). Such a finding is proper when "'on the entire evidence' the court 'is left with the definite and firm conviction that a mistake has been committed.'" Neuder, 194 F.R.D. at 292 (quoting United States v. Gypsum Co., 333 U.S. 364, 365 (1948)); see also Arakelian, 126 F.R.D. at 2.

I. Protective Order

Rule 36 of the Federal Rules of Civil Procedure permits a party to "serve upon any other party a written request for the admission ... of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact ...." The purpose of Rule 36 requests for admissions "is to allow for the narrowing of issues, to permit facilitation in presenting cases to the factfinder and, at a minimum, to provide notification as to those facts, or opinions, that remain in dispute." Lakehead Pipe Line Co. v. American Home Assurance Co., 177 F.R.D. 454, 457-58 (D. Minn. 1997). As such, requests for admissions are similar to stipulations in the pretrial order. See Revlon Consumer Prods. Corp. v. Estee Lauder Co., No. 00CIV.5960(RMB), 2001 WL 521832 (S.D.N.Y. May 16, 2001); O'Neill v. Medad, 166 F.R.D. 19 (E.D. Mich. 1996).

Rule 36, strictly speaking, may not set forth a discovery procedure at all because a party does not seek to discover a fact or opinion through a request for admission. Instead, a request seeks to have a party concede the genuineness of a fact or opinion that the requesting party believes to be settled. See 8A Charles Alan Wright et al., Federal Practice and Procedure § 2253 (2d ed. 1994).

The assertion that requests for admissions may not be, technically speaking, tools of discovery has led to a split of authority as to whether requests for admission should be subject to discovery cutoff dates. Some courts have held that requests for admission are not subject to discovery cutoff dates because, theoretically, a requesting party is not seeking to discover anything. See O'Neill, 166 F.R.D. at 21 (holding that "[p]laintiff need not have submitted requests for admissions by the August 15 discovery motion cutoff date or by the discovery cutoff date of September 15 because requests for admissions are distinct from other general discovery devices and are not subject to discovery cutoff dates"); Hurt v. Coyne Cylinder Co., 124 F.R.D. 614, 615 (W.D. Tenn. 1989) (holding that "Rule 36 requests for admissions [are] not included within the parameters of a general cutoff for discovery in a scheduling order").

A substantial number of other courts, however, have treated requests for admissions as being subject to discovery cutoff dates. See Coram Health Care Corp. of Ill. v. MCI Worldcom Communications, Inc., No. 01 C 1096, 2001 WL 1467681, at *3 (N.D. Ill. Nov. 15, 2001) (holding that a request for admission is a tool of discovery subject to discovery cutoff dates); Revlon Consumer Prods. Corp., 2001 WL 521832, at *1 (holding that requests for admissions are subject to discovery cutoff dates); Toone v. Federal Express Corp., No. Civ. A. 96-2450 (RCL), 1997 WL 446257, at *8 (D.D.C. July 30, 1997) (denying motion to compel responses to request for admissions because request was served on the date for completion of discovery); Jarvis v. Wal-Mart Stores, Inc., 161 F.R.D. 337, 339 (N.D. Miss. May 5, 1995) (treating "requests for admission as a discovery device for purposes of establishing a deadline for service upon the other party"); Kershner v. Beloit Corp., 106 F.R.D. 498, 499 (D. Me. 1985) (holding that "any general deadline for completion of discovery facially applies to requests for admissions").

The text, structure and purpose of the federal rules and the scheduling order in this case suggest that service of plaintiff's requests for discovery was subject to the discovery deadline. Rule 26(a)(5) explicitly lists requests for admissions as a means of obtaining discovery. Fed. R. Civ. P. 26(a)(5). Moreover, the drafters of the Federal Rules of Civil Procedure included Rule 36 in the chapter of the rules governing depositions and discovery. See Fed R. Civ. P., Ch. V. Since the rules were designed to provide for fair and speedy resolutions of disputes, see Fed. R. Civ. P. 1, it is fair to conclude that the framers of the rules intended that requests for admissions be subject to the rules applicable to other discovery tools, including Rule 16(b)(3) under which discovery deadlines are fixed in scheduling orders. See Coram Health Care Corp., 2001 WL 1467681, at *3 (citing the fact that requests for admissions are listed in Rule 26(a)(5) as a method of discovery as the basis for ...


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