United States District Court, D. Columbia
August 18, 2005.
ELBERT LEROY DAGE, Plaintiff.
MICHAEL O. LEAVITT, Administrator, Environmental Protection Agency Defendant.
The opinion of the court was delivered by: JOHN PENN, District Judge
This matter is before the Court pursuant to Plaintiff's Motion
to Compel Complete Discovery Responses To Plaintiff's First Set
of Interrogatories and Requests For Production of Documents [#
20]. Plaintiff requests that the Court compel defendant to make
complete responses to his interrogatories and document requests
pursuant to Federal Rule of Civil Procedure 37.*fn1
Defendant objects to plaintiff's interrogatories and document
requests claiming that, with the exception of one narrow issue,
plaintiff has not exhausted any of the claims in his complaint,
and hence is not entitled to discovery of those claims. As
explained more fully below, the Court concludes that plaintiff's
motion should be granted.
Plaintiff was injured by his exposure to toxic chemicals while
an employee at the Environmental Protection Agency's ("EPA")
Waterside Mall headquarter offices in the late 1980s and early 1990s. Compl. at ¶ 15. Plaintiff alleges that as a
result of that exposure, he experienced severe respiratory
problems and was eventually diagnosed with Chronic Obstructive
Pulmonary Disease, for which he was adjudicated disabled in 2002.
Id. at ¶ 30, 64. In plaintiff's complaint, filed February 12,
2004, he alleges that defendant denied him reasonable
accommodations for his disability, and subjected him to various
acts of discrimination and retaliation in violation of the
Federal Rehabilitation Act of 1973, as amended, 29 U.S.C. 701,
et. seq. ("Rehabilitation Act"), Title VII of the Civil Rights
Act of 1964, as amended 42 U.S.C. 2000e, et. seq. ("Title
VII"), and implementing regulations. Id. at ¶ 1. As part of the
aforementioned claims, plaintiff makes specific reference to an
Alternative Workspace Policy ("AWS") implemented by the EPA in
1999, and contends that the recertification requirements under
this policy were unduly burdensome. Id. at ¶ 56.
In accordance with the scheduling order set by the Court,
plaintiff served defendant with sixteen (16) interrogatories and
twelve (12) requests for documents. Defendant has refused to
respond to the majority of the inquiries and requests asserting
the deliberative process and attorney client privileges, and
claiming that the requests go beyond the allegations in
plaintiff's administrative complaint.
I. Standard of Review
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure,
"parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in
the pending action . . . Relevant information need not be
admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence." Rule
26(b)(1) was amended in 2000 to narrow the scope of discovery by requiring
that discovery be relevant to the claim or defense of a party.
However, the Court still retains authority to order discovery of
any matter relevant to the subject matter involved in the action.
See Pulliam v. Continental Casualty Company, No. 02-0370,
2003 WL 1085939, at * 2 (D.D.C. Jan. 24, 2003).
II. Relevance of Interrogatories & Requests
Defendant objects to Interrogatories 1-5 and 9-16, and Document
Request No.'s 1, 2, 5, 8, and 9 contending that plaintiff may not
seek discovery of those matters because they are outside of the
scope of plaintiff's administrative complaint. See Def.'s Opp'n
at 1. Defendant argues that plaintiff may only seek discovery of
claims concerning the implementation of the 1999 AWS policy.
Id. However, plaintiff's administrative complaint makes
allegations that go beyond the implementation of 1999 AWS policy.
See Pl.'s Mot. To Compel, Ex. 4. Moreover, plaintiff's
complaint in this Court includes allegations of discrimination
and retaliation in violation of both Title VII and the
Rehabilitation Act. See Compl. Defendant had the opportunity to
file a motion to dismiss these claims prior to filing an
answer.*fn2 As defendant did not file a motion to dismiss,
plaintiff may obtain discovery on any matter relevant to the
claims in his complaint before this Court.
III. Interrogatories & The ROI
In response to Interrogatories 1, 4, and 6, defendant directs
plaintiff to consult the Report of Investigation ("ROI"). See
Pl.'s Mot. To Compel, Ex. 2. Pursuant to Rule 33(d) of the
Federal Rules of Civil Procedure, an answer to an interrogatory
that specifies the records from which the answer may be
ascertained must "be in sufficient detail to permit the
interrogating party to locate and to identify, as readily as can the party served, the records
from which the answer may be ascertained" (emphasis added). Since
the ROI is over 600 pages long, defendant must at least provide
the specific range of page numbers in the ROI that respond to
plaintiff's interrogatories. See Pl.'s Mot. To Compel at 11.
IV. Document Requests & The ROI
In response to Document Request No.'s 1, 2, 5, 8 and 9,
defendant directs plaintiff to the ROI. stating that the ROI is
"sufficiently comprehensive," and therefore fulfills defendant's
discovery obligations with respect to those requests. See Pl.'s
Mot. To Compel, Ex. 3. Plaintiff contends that reference to the
ROI is not sufficiently responsive because it only contains
documents that were chosen by the investigator creating the ROI,
and therefore does not necessarily contain all of the documents
in the files. See Pl.'s Mot. To Compel at 30. Defendant does
not proffer any evidence to contradict plaintiff's assertion.
See Def.'s Opp'n. Hence, defendant must produce all documents
that are responsive to plaintiff's requests, and reference the
corresponding page numbers in the ROI where applicable.
V. Deliberative Process & Attorney Client Privileges
Under Rule 26(b)(5) of the Federal Rules of Civil Procedure, if
a party withholds documents on the basis of privilege, "the party
shall make the claim expressly and shall describe the nature of
the documents . . . in a manner that, without revealing
information itself privileged . . . will enable other parties to
assess the applicability of the privilege." A general objection
to a request for production of documents on the basis of
privilege is insufficient. Avery Dennison Corp. v. Four
Pillars, 190 F.R.D 1 (D.D.C. 1999) quoting United States v.
Exxon Corp., 87 F.R.D. 624, 637 (D.D.C. 1980). There must be a
description of the documents tailored to that assertion. Id.
Document Request No. 2 requests
all documents that relate to the 1999 AWS policy
entitled Uniform Criteria and Procedures for
Requesting and Assigning Alternative Workspace,
including, but not limited to, all documents that
provide the analysis and reasoning for replacing the
previous version of the AWS policy, or any portion of
the previous version, with the 1999 version. See
Pl.'s Mot. To Compel, Ex. 1.
Defendant refuses to respond to this request claiming that the
"request comprehends pre-decisional documents protected by the
deliberative and attorney-client privileges." See Pl.'s Mot. To
Compel, Ex. 2. However, defendant's general claim of privileges
is insufficient. See Avery Dennison Corp., 190 F.R.D. at 1.
Defendant must specifically describe the documents being withheld
and state why either of those privileges applies. This is best
accomplished in the production of a privilege log. See First
American Corp. v. Al-Nahyan, 2 F.Supp.2d 58, 63 n. 5 (D.D.C.
1998). While failure to produce a privilege log can be deemed a
waiver of the privileges asserted, the Court will allow defendant
to produce a privilege log setting forth the basis for
withholding any documents responsive to Plaintiff's requests.
See Bregman v. District of Columbia 182 F.R.D. 352, 363
(D.D.C. 1998). If defendant fails to produce such log, the
privileges will be deemed waived and defendant must produce
For the foregoing reasons, plaintiff's Motion to Compel
Complete Discovery Responses to Plaintiff's First Set of
Interrogatories and Requests For Production of Documents is
granted. An appropriate order accompanies this Memorandum
© 1992-2005 VersusLaw Inc.