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DOE v. DISTRICT OF COLUMBIA

United States District Court, D. Columbia


September 14, 2005.

JOHN DOE, a Minor, THROUGH NEXT FRIEND, BOB DOE, Plaintiff,
v.
THE DISTRICT OF COLUMBIA et al., Defendants.

The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

MEMORANDUM OPINION

This case was referred to me by Judge Kessler to resolve all discovery disputes. Currently pending and ready for resolution are two discovery motions. For the reasons stated herein, The District of Columbia's Motion to Compel Discovery ("Def.'s Mot.") [#187] is granted in part and denied in part, and District of Columbia's Supplement to Its Motion to Compel ("Def.'s Supp.") [#214] is denied.

I. FACTUAL BACKGROUND

  Plaintiff John Doe, a minor child, alleges, through his next friend Bob Doe, that he was physically and sexually abused while in the care and control of the District of Columbia, in violation of defendant's duties under the United States Constitution, federal law, and District of Columbia law. In particular, plaintiff brings claims of negligence and of civil rights violations under the Fifth Amendment and 42 U.S.C. § 1983. The incidents of abuse centrally at issue in this case allegedly involved three other minors and occurred in April 2002, while plaintiff resided at a group home called Columbia House II ("CH II"), operated by Associates for Renewal in Education, Inc. ("ARE"), a not-for-profit foster care contractor for the District of Columbia's Child and Family Services Agency ("CFSA"). ARE provides residential foster care services to minors who are wards of the District of Columbia, often when those minors are involved in abuse and neglect proceedings or otherwise subject to the juvenile justice system.

  On April 23, 2004, defendant served plaintiff with interrogatories and requests for production of documents pursuant to Federal Rules of Civil Procedure ("Rules") 33 and 34. Def.'s Mot. at 1. Plaintiff provided his responses and objections to defendant's requests on May 26, 2004. Id. After the court entered its September 10, 2004 protective order, plaintiff produced documents to defendant on September 23, 2004. Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant District of Columbia's Motion to Compel Discovery and in Support of Plaintiff's Request for Fees and Costs ("Pl.'s Opp'n") at 2. Defendant asserts that such production did not satisfy its requests. Def.'s Mot. at 1.

  During the October 8, 2004 deposition of John Doe, defendant informed plaintiff that it believed he had not completely responded to discovery. Id., Ex. B, at 5. Plaintiff made no further production. Id. at 6. Again, during the deposition of Bob Doe on May 19, 2005, defendant requested documents that plaintiff had failed to produce in response to its discovery requests. Defendant District of Columbia's Reply to Plaintiff's Opposition to Its Motion to Compel Discovery ("Def.'s Reply"), Ex. 1A. Finally, on Friday, May 27, 2005 at 3:20 p.m., defendant's counsel wrote to plaintiff's counsel requesting that plaintiff comply with its discovery requests before June 1, 2005, the date set for the close of discovery. Pl.'s Opp'n at 2; Def.'s Mot. at 7. On May 31, 2005, the first workday following defendant's May 27 correspondence, plaintiff's counsel informed defendant's counsel that the request was unreasonable and that plaintiff would need additional time to respond. Pl.'s Opp'n at 3. Defendant filed the instant motion on June 1, 2005, and plaintiff supplemented his production of documents on June 7, 2005. Id. Despite this additional production, defendant maintains that plaintiff has not properly responded to several of its interrogatories and document requests and that the court should therefore compel plaintiff's discovery. Def.'s Reply at 1-3.

  Plaintiff filed his response on June 13, 2005, contending that (1) defendant failed to meet and confer in good faith before filing the motion, (2) defendant's demanded timetable was unreasonable, and (3) his discovery responses were complete. Pl.'s Opp'n at 3-7. Plaintiff also contends he is entitled to costs and fees associated with answering defendant's motion. Id. at 8. Defendant replied by asserting that plaintiff had failed to meet his discovery obligations by (1) failing to supplement his discovery responses pursuant to Rule 26(e) and (2) failing to label documents according to Rule 34. Def.'s Reply at 1-3. Defendant also asserted that it has complied with the "good faith" requirement of LCvR 7(m) and Rule 37(a) and that plaintiff is not entitled to costs and fees. Id. at 3-4.

  Finally, on July 28, 2005, defendant filed a supplemental motion to compel, in which defendant complained of untimely receipt of responsive documents, the late receipt of which prejudiced its ability to depose plaintiff's expert. As a result, defendant seeks an order from this court requiring plaintiff to formally produce any other documents responsive to its discovery requests. Def.'s Supp. at 2-4. Defendant also seeks leave to depose Dr. Haller, a consulting expert retained by plaintiff who will not testify at trial but whose interviews and notes were relied upon by Dr. Dvoskin, plaintiff's expert witness who will testify at trial.

  II. DISCUSSION Defendant filed this motion to compel plaintiff to answer interrogatories and produce documents pursuant to Rules 37(a)(2) and 37(a)(3). In filing this motion, defendant is required to certify that it has, in good faith, attempted to resolve the discovery dispute without seeking court intervention. See Fed.R.Civ.P. 37(a)(2)(B). Plaintiff asserts that, given its demand for discovery on the eve of a holiday weekend so close to the discovery deadline, it failed to confer with him in good faith before filing the instant motion. Pl.'s Opp'n at 2-5. Although the timing of defendant's correspondence informing plaintiff of the insufficiency of his discovery was less than generous, the court must also consider the two prior instances in which defendant placed plaintiff on notice that it believed he had not completely responded to discovery.

  Accordingly, I find defendant did attempt to confer with plaintiff to resolve this discovery dispute in good faith, in compliance with Rule 37(a)(2)(B). In addition, I will treat defendant's statement that "[it] has satisfied its obligation to attempt to resolve this dispute in good faith by its reminder to plaintiff on October 8, 2004, and by its May 27, 2005, letter to plaintiff" as a certification of compliance with the Rule, as required by LCvR 7(m) and Rule 37(a). Def.'s Mot. at 7. Therefore, I will not dismiss defendant's motion on formalistic, procedural grounds but will proceed to its substance.

  A. Legal Standards

  Rule 26 entitles a party to discover information if the information sought appears "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Additionally, a party may discover only information that is not privileged and "is relevant to the claim or defense of any party." Id.; Krieger v. Fadely, 199 F.R.D. 10, 13 (D.D.C. 2001). Relevance for discovery purposes is broadly construed. See, e.g., Burlington Ins. Co. v. Okie Dokie, Inc., 368 F. Supp. 2d 83, 86 (D.D.C. 2005) (citing Food Lion, Inc. v. United Food & Comm'l Workers Int'l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997); Smith v. Schlesinger, 513 F.2d 462, 473 n. 37 (D.C. Cir. 1975)). Once a party has established relevance, if the other party wishes to object to discovery, the objecting party bears the burden of showing why discovery should not be allowed. See Alexander v. FBI, 194 F.R.D. 299, 302 (D.D.C. 2000) (citations omitted).

  To support his negligence claim, plaintiff must show that defendant had a duty to plaintiff while he was in its care, that defendant breached this duty, and that breach proximately caused damage to plaintiff's interests. See Turner v. District of Columbia, 532 A.2d 662, 666 (D.C. 1987). To support his section 1983 claim, plaintiff must show that a person acting under color of state law subjected him or caused him to be subjected to a deprivation of a right under the Constitution. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 829 (1985). Plaintiff must also show that defendant had a policy or practice that led to the deprivation of plaintiff's civil rights. See Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986). Therefore, defendant is entitled to any information that would support such claims by plaintiff or enable it to defend against such claims, as long as that information is not privileged or otherwise excepted from Rule 26(b)(1).

  Under Rule 26(e)(2), parties are obliged to supplement their discovery responses if they learn their prior responses are incomplete. Fed.R.Civ.P. 26(e)(2). In addition, Rule 37(a)(3) provides that "an evasive or incomplete answer is to be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a)(3). Rule 37(a)(2)(B) allows a party whose discovery requests have gone unanswered to move to compel an answer. Fed.R.Civ.P. 37(a)(2)(B). B. Defendant's Document Requests

  Defendant asserts in his motion that plaintiff "failed to formally respond to" its document requests. Def.'s Mot. at 2. In particular, defendant has pointed to plaintiff's failure to provide "updated medical records." Pl.'s Opp'n, Ex. A. Even after plaintiff's June 7, 2005 and July 27, 2005 supplements to his original September 23, 2004 production, defendant insists that plaintiff's responses to its document requests are incomplete. Def.'s Reply at 2; Def.'s Supp. at 4. Plaintiff counters that he has provided all responsive, non-privileged documents of which he is aware. Pl.'s Opp'n at 5. But, at the very least, plaintiff has yet to provide defendant with a privilege log detailing documents that are responsive. Def.'s Reply at 4. The following table outlines defendant's document requests and plaintiff's responses.*fn1 D.R. # Defendant's Document Request Plaintiff's Response

 

1 "All documents referred to or relied on "Plaintiff objects to this Request to the by you in the preparation of your answers extent it seeks information protected by to the interrogatories propounded to you the attorney-client privilege and work-product herewith." immunity. Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this Request after entry of a protective order by the Court."
2 "Completed/signed authorization forms "No authorization form was attached to for all medical and hospital records. the Requests." (Authorization form is attached hereto.)"
 
3 "Any and all written reports verifying "Plaintiff objects to this Request to the any allegations of permanency of your extent that it is vague, overly broad, and injuries." not limited in time or scope. Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
4 "Any and all written reports of treating "Plaintiff objects to this request to the physicians or other medical personnel extent that it is vague, overly broad, not regarding the nature of your injuries, limited in time or scope, and requests treatment and prognosis." information and documents not in plaintiff's possession or control. Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court." 5 "Any and all receipts of, invoices for or "Plaintiff objects to this request to the statements regarding any monies paid or extent that it is vague, overly broad, and owed as a result of the treatment afforded requests information and documents not you at any clinic or hospital for any of in plaintiff's possession or control. the injuries you alleged you received as a Counsel for all parties are in the process result of the occurrence identified in the of negotiating the terms of an agreed-upon complaint." protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
 
6 "Any and all receipts of, invoices for or "Plaintiff objects to this request to the statements for expenses which you claim extent that it is vague and overly broad. to have incurred as a result of the Counsel for all parties are in the process occurrence identified in the complaint." of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court. Plaintiff will supplement this response and production with additional responsive documents when they become available."
7 "Any and all reports and curriculum vitae "Plaintiff will answer this request in of any expert witness which you expect accordance with the time limits and to call at trial." schedule applicable under the Court's scheduling order regarding expert testimony and rule 26(a)(2) of the Federal Rules of Civil Procedure." 8 "Any and all written statements or "Plaintiff objects to this request to the recordings relating to the occurrence." extent that it is vague and overly broad with respect to the term "occurrence". Plaintiff also objects to this request to the extent that it seeks information and documents protected by the attorney-client privilege and work-product immunity. Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
 
9 "Any and all police reports relating to the "Plaintiff objects to this request to the occurrence." extent that it is vague and overly broad with respect to the term "occurrence". Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
10 "Any and all notes, memoranda or other "Plaintiff objects to this request to the documents reflecting conversations with extent that it is vague, overly broad, and any individual (with the exception of any not limited in time or scope. Plaintiff attorneys) concerning the incident also object [sic] to this request to the complained of." extent that it seeks information and documents protected by the attorney-client privilege and work-produce [sic] immunity. Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court." 11 "All prescriptions for medication and or "Plaintiff objects to this request to the devices used to treat any conditions extent that it is vague and overly broad resulting from the occurrence identified with respect to the term occurrence. in the complaint." Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
 
12 "Any and all reports or other documents "Plaintiff objects to this request to the prepared by physicians, nurses, physical extent that it is vague, overly broad, not therapists or other medical personnel limited in scope, not reasonably who have treated you within the 6 years calculated to lead to the discovery of preceding the date of the incidents admissible evidence, and calls for complained of." information not relevant to this litigation. Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
13 "All statements of witnesses to the "Plaintiff objects to this request to the occurrence that were obtained by you or extent that it is vague, overly broad, not your agents." limited in scope, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this request to the extent that it seeks information protected by the attorney-client privilege and work-product immunity. Counsel for all parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court." 14 "All written statements of defendant, its "Plaintiff objects to this request to the agents, servants, and/or employees extent that is seeks information protected relating to the allegations of the by the attorney-client privilege and work-product complaint which are in plaintiff's immunity. Counsel for all possession, custody or control." parties are in the process of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
 
15 "Any notices sent pursuant to D.C. Code "Counsel for all parties are in the process Section 12-309." of negotiating the terms of an agreed-upon protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
16 "Any receipt card depicting that the "Counsel for all parties are in the process District of Columbia received your 12-309 of negotiating the terms of an agreed-upon notice." protective order. Subject to the foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
 
17 "Any correspondence from the District in "Counsel for all parties are in the process response to your 12-309 notice or of negotiating the terms of an agreed-upon correspondence received during the protective order. Subject to the claims stage." foregoing objections, plaintiff will produce those non-privileged documents in his possession that are responsive to this request after entry of a protective order by the Court."
Whether defendant is entitled to an order compelling further production of documents depends on whether plaintiff's production to date has actually been deficient. Defendant is frustratingly vague and unclear in its pleadings on this matter, failing to point out particular holes in plaintiff's production. The only specificity defendant provides appears in its conversations and correspondence with plaintiff's counsel regarding "updated medical records." See, e.g., Def.'s Mot., Ex. B; Pl.'s Opp'n, Ex. A. Nevertheless, I will resolve the issues presented by the defendant's response in the interests of bringing this dispute to a prompt end.

  1. Has Defendant Established Relevance?

  In order for this court to compel discovery, the information sought must be relevant to the claims or defenses of the parties. See Krieger, 199 F.R.D. at 13. Defendant's document requests fall into three general categories: the facts of the alleged incidents of abuse, plaintiff's medical condition, and litigation information (e.g., documents supporting interrogatories, curriculae vitarum of experts, and records of plaintiff's noticing defendant). All of the document requests seek relevant information.

  2. Has Plaintiff Shown Why Discovery Should Not Be Allowed?

  In addition to seven general objections, plaintiff asserts various privileges, specific objections, or qualified responses to each of defendant's seventeen document requests. See Def.'s Mot., Ex. A, at 13-21. First, plaintiff asserts the attorney-client and work-product privileges with respect to Document Request Numbers 1, 8, 10, and 14. But, asserting those privileges does not exempt plaintiff from complying with the request in its entirety. Indeed, he must furnish defendant with all unprivileged, responsive documents. As for documents for which plaintiff claims the attorney-client or work-product privilege, he must submit a privilege log itemizing these documents to defendant. Fed.R.Civ.P. 26(b)(5); First Am. Corp. v. Al-Nahyan, 2 F.Supp.2d 58, 63 n. 5 (D.D.C. 1998).

  Second, plaintiff objects to several of defendant's document requests, namely, Document Request Numbers 5, 6, 8, 9, and 11, as being vague with respect to the word "occurrence." In his general objections, plaintiff states that he "objects to each and every request that refers to an `occurrence' or `incident' as plaintiff has alleged multiple occasions where the defendants caused him harm." Id., Ex. A, at 13. Although the letter of defendant's requests is somewhat imprecise, the spirit is clear. I will interpret the word "occurrence" to mean any incident in which he claims the defendants harmed him and for which he seeks damages or other redress. Plaintiff is therefore obliged to answer the request for each such "occurrence."

  Third, plaintiff objects to Document Request Numbers 3, 4, 10, and 12 as being vague, overly broad, or not limited in time or scope. I do not find Numbers 3, 4, and 10 to be either vague or overly broad. They speak specifically to the "occurrence" in question as I have now defined that term. Number 12, which seeks medical reports for the 6 years prior to the incident is overly broad. Three years will suffice.

  Plaintiff further objects to Document Request Numbers 4 and 5, saying that it seeks documents not in plaintiff's "possession or control." Obviously plaintiff is not obliged to produce anything that is not in his possession, custody, or control, with respect to this or any other document request. Fed.R.Civ.P. 34(a). As to medical records, I expect them to be produced by plaintiff if he has a copy. Also, I consider medical records to be within plaintiff's control and expect that he will authorize their release to defendant pursuant to Document Request Number 2.

  Plaintiff objects to Document Request Number 12 as seeking information that is not relevant to the litigation but indicates that it will produce the non-privileged documents. Assuming that plaintiff is still not claiming the irrelevance of these documents, I have already found that reports as to the plaintiff's medical conditions in the period within three years of the incident are relevant and will therefore order plaintiff to produce such documents.

  Next, in his original response, plaintiff did not produce documents in response to Document Request Number 2 because the authorization form contemplated by the request was not attached. If defendant still wishes to receive the information the document request seeks, it must furnish plaintiff with the authorization form. Plaintiff will sign it and return it forthwith.

  Finally, plaintiff objects to Document Request 7, that it produce its experts' reports and curriculae vitarum, on the ground that Judge Kessler has issued a scheduling order that specifies the date for the production of these documents. The objection is well taken; plaintiff is not obliged to produce materials subject to the scheduling order before the dates specified in the scheduling order.*fn2

  In its reply, defendant complains that plaintiff failed to "label any documents provided with the categories set forth in the District's discovery requests," suggesting that such a failure constitutes a breach of the discovery rules. Def.'s Reply at 3. But, as defendant suggests in the preceding sentence, quoting Rule 34, "[a] party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." Fed.R.Civ.P. 34(b) (emphasis added). As long as plaintiff produced the documents "as they are kept in the usual course of business," he was in compliance with the discovery rules. C. Defendant's Interrogatories

  Defendant asserts in his motion that plaintiff's answers to several interrogatories "were deficient and should be treated as a failure to disclose, answer, or respond in accordance with Rule 37(a)(3)." Def.'s Mot. at 2. The table below outlines the parties' positions on these interrogatories. Interrogatory*fn3 Answer*fn4 Def.'s Motion*fn5 Pl.'s Response*fn6

 No. 4: "As a result "Plaintiff objects to this Interrogatory seeks Plaintiff is of the incidents interrogatory to the extent that details regarding exploring the referred to in the it requires plaintiff to form plaintiff's injuries, nature of his complaint, set medical conclusions which he but plaintiff injuries through forth in detail the is not qualified to render. provides only a expert discovery, nature of the Subject to, and without cursory response and it would be injuries alleged to waiving, the foregoing and should be premature, have been objection, plaintiff has compelled to unnecessary, and sustained by you endured physical, emotional provide details impossible for him and the parts of and mental pain, suffering requested. to supplement his the body affected." and anguish." responses at this time. Plaintiff will provide Rule 26 expert disclosures. No. 5: "If you are "Plaintiff objects to this Interrogatory seeks [See Response to claiming that any interrogatory to the extent that details of Interrogatory such injuries are it requires plaintiff to form plaintiff's injuries, Number 4] permanent give medical conclusions which he but plaintiff complete details is not qualified to render. provides none (not (e.g., the nature of Plaintiff further objects to this details of the said permanency interrogatory to the extent it injuries, what and disability calls for premature FRCP 26 activities claimed to result disclosures and expert prevented from therefrom . . . and, conclusions. Subject to, and performing as a the name, address without waiving, the result of the and telephone foregoing objections, plaintiff injuries, and the number of the reasonably believes that some information of person or persons or all of the physical, those persons on you intend to rely emotional and mental anguish whom he intends upon to support suffered is permanent in to rely to support the allegation of nature." his permanency permanency)." allegations). No. 6: "If you "Plaintiff objects to this Defendant is [See Response to contend that you interrogatory to the extent that entitled to know Interrogatory experienced it is vague as to which the symptoms, the Number 4] emotional distress occurrence or occurrences it date of onset of as a result of the is referencing. Plaintiff the symptoms, the occurrence objects to this interrogatory to date of abatement described in the the extent that it require or disappearance complaint, plaintiff to form medical of the symptoms describe in detail conclusions which he is not and all actions the symptoms you qualified to render. Plaintiff taken by plaintiff have experienced, further objects to this to treat the and for each such interrogatory to the extent it symptoms and/or symptom state the calls for expert conclusions. the emotional date of onset, the Subject to, and without distress. date of abatement waiving, the foregoing Defendant should or disappearance objections, plaintiff has not have to sift of the symptom endured emotional pain and through medical and all actions suffering that occurred while records to taken by you to in the care of the defendants determine whether treat the symptom and, specifically, surrounding any symptoms and/or the his sexual abuse while plaintiff emotional residing at Columbia House II experienced distress." and the constant improper resulted from the changes in placement. That subject incident or suffering has continued since some other cause. those events and continues today, and is reflected by the fact that he is still being seen by therapists under the direction of the District of Columbia. Please refer to plaintiff's medical records." expert disclosures. No. 8: "Please "Plaintiff objects to this Plaintiff failed to [See Response to state the result and interrogatory to the extent that answer this Interrogatory circumstances of it essentially calls for a request, objecting Number 4] your last complete document, which is better but not supporting physical accomplished through a his basis for not examination prior request for production. responding. The to the incidents in Subject to, and without information question (e.g., the waiving, the foregoing sought is not name, address and objections, plaintiff will protected by any telephone number produce such a document, if recognized of each physician one exists, in response to privilege, and . . . who treated defendant's request for plaintiff should be you; the date or documents." compelled to dates said provide a treatment was responsive answer given and the to the location; and each interrogatory. medication taken)."

 No. 10: "If you "At this early stage of Plaintiff provided Interrogatory seeks contend that any discovery, plaintiff believes only a conclusory information employee or agent that the District of Columbia response and did regarding of the District of and its employees and agents not describe with plaintiff's position Columbia violated violated statutes, ordinances, any particularity as to the nature of any statute, regulations, guidelines, the statutes, etc. defendant's ordinance, standards of care, court related to his wrongful conduct, regulation, orders, laws and rules allegations which he is guideline, standard announced in court decisions. violated by exploring though of care, court Please refer to plaintiff's District fact discovery. order, law or rule complaint. See plaintiff's employees. Plaintiff's 30(b)(6) announced in any complaint at ¶¶ 24-86." deposition of court decision that defendant will is relevant to this help provide case, please answers to this describe." interrogatory, and plaintiff will supplement his answer should circumstances warrant. No. 11: "State all "At this early stage of Plaintiff provided [See Response to facts which discovery, plaintiff believes only a conclusory Interrogatory support your that the District of response and did Number 10] allegation that the Columbia's repeated failures not provide any District of to protect plaintiff, including factual evidence to Columbia had a its repeated failure to offer support his custom, policy or appropriate resources or theories as practice which services to prevent plaintiff's contemplated in caused the out of home placement, its the interrogatory. incidents alleged repeated delay of plaintiff's in the complaint." ultimate placement with his father, and its repeated failure to supervise and monitor its employees, agents and subcontractors evince a custom, policy, or practice that caused the incidents alleged in the complaint. Plaintiff also believes that there are other such instances of the District of Columbia's failures to protect minors under its care. Please also see plaintiff's complaint at ¶¶ 24-86, S. Chan, More Boys Reportedly Abused at D.C. Facility, July 30, 2002, Wash. Post at B01, and LaShawn A. v. Williams, Monitor's Special Case Review/A.B., A Child in the Custody of the District of Columbia Child and Family Services Agency (CFSA), Center for the Study of Social Policy Report, September 2002." No. 12: "If you "At this early stage of By failing to [See Response to contend that the discovery, plaintiff believes provide all facts to Interrogatory District of that the District of Columbia support the claim Number 10] Columbia was was on notice that Columbia that the District of placed on notice House II and Associates for Columbia was on that Columbia Renewal in Education's notice that House II or agents did not provide care or Columbia House II Associates for supervision to minors in its and Associates for Renewal in care before the incidents Renewal in Education's agents alleged in the complaint due Education's agents did not provide to its supervisory position did not provide proper care or over Columbia House II and care or supervision supervision to Associates for Renewal in to minors in its minors in its care Education, and regulations care before the before the requiring such entities to incidents alleged, incidents alleged make reports to the District of plaintiff failed to in the complaint, Columbia. Additionally, fully address the please provide all plaintiff believes that on April interrogatory. facts which 2, 2002, Defendant James A. support your Rice noticed the District of allegation." Columbia that plaintiff was improperly placed at Columbia House II. Plaintiff also believes that the District of Columbia should have known that other children were improperly placed at Columbia House II." The interrogatories in dispute fall into two basic categories: (1) those pertaining to plaintiff's medical condition and treatment and (2) those related to the facts and law surrounding the incidents of abuse alleged in this case.

  1. Interrogatory Numbers 4, 5, 6, and 8

  The dispute with respect to Interrogatory Numbers 4, 5, 6, and 8 turns on plaintiff's duty to supplement his responses with respect to his medical condition and treatment. Defendant asserts that it is entitled to such information and that plaintiff's responses thus far have been insufficient. Def.'s Reply at 1-3. Plaintiff contends that such information is better left to expert discovery and would be provided if and when it becomes available through that method of discovery. Pl.'s Opp'n at 6-7.

  Defendant states that plaintiff "knew or should have known his answers were incomplete and required supplementation under Rule 26(e)." Def.'s Reply at 2. Plaintiff does not deny this, clearly stating that he knows his answers may need supplementation. See Pl.'s Opp'n at 6 ("Plaintiff will supplement its [sic] responses to these interrogatories should that become warranted."). Therefore, the issue is not whether those responses will be supplemented but how and when they should be supplemented.

  As outlined above, because plaintiff's medical condition and treatment are at the center of this case, interrogatories seeking such information are relevant to the parties' claims and defenses. Discovery on those topics is, therefore, appropriate. But, given the nature of the information, which requires expert evaluation, plaintiff cannot be expected to supplement his responses until he has been properly evaluated by his medical expert. Therefore, plaintiff must supplement his responses, in accordance Rule 26(a)(2)(B), through his expert witness' report. It appears from the supplemental pleadings that this has already been done, but if plaintiff has now or secures in the future any other responsive, discoverable information pertaining to this topic, he must produce it to defendant within 10 days of the expiration of the stay issued by Judge Kessler on September 14, 2005 or 10 days of discovering it, whichever is later.

  With respect to Interrogatory Number 8, which requests information pertaining to plaintiff's last physical examination before the alleged events, defendant suggests that plaintiff failed "to provide all facts to support the claim." Although plaintiff may be correct in suggesting that defendant essentially seeks a document, defendant is still entitled to a complete response to his request. Therefore, plaintiff must either answer the interrogatory directly or point defendant to the document or documents that provide the information requested.

  2. Interrogatory Numbers 10, 11, and 12

  The dispute with respect to Interrogatory Numbers 10, 11, and 12 turns on plaintiff's duty to supplement his responses with respect to the facts and law surrounding the incidents of abuse alleged in this case. The issue once again is not whether those responses will be supplemented but how and when they should be supplemented.

  Again, as outlined above, because the facts and legal milieu surrounding the alleged incidents of abuse are central to the case, the information sought is clearly relevant and plaintiff may be compelled to respond to interrogatories related to those topics. But, given the separate stages of the discovery process, plaintiff cannot be expected to provide complete responses until he has deposed defendant with respect to the relevant laws and facts of the events alleged or implicated in this case. Therefore, plaintiff shall supplement his responses within 10 days of the expiration of the stay issued by Judge Kessler on September 14, 2005 or within 5 days after he completes the 30(b)(6) deposition of defendant, whichever is later. I expect plaintiff to specify by proper citation the "statutes, ordinances, regulations, guidelines, standards of care, court orders, laws and rules announced in court decisions" upon which he relies to impose liability on the defendant.

  With respect to Interrogatory Number 12, which requests all facts supporting plaintiff's contention that defendant was aware of the failure to provide proper care and supervision prior to the alleged incidents, defendant indicates that plaintiff failed "to provide all facts to support the claim." Def.'s Mot. at 5 (original emphasis). It is not clear to the court how defendant knows that plaintiff did not provide every single fact to support his claim. Moreover, defendant is protected from any unfair surprises as to this topic because plaintiff's proof will be limited to the facts stated. If plaintiff, either now or later, intends to rely on additional facts, it had better supplement its answer. I will not, however, compel any greater response at this time.

  D. Costs and Fees

  Plaintiff argues in his opposition that he should receive costs and fees associated with responding to defendant's motion under 37(a)(4)(C). Defendant counters that plaintiff's untimely production necessitated its filing this motion, pointing to the additional documents produced following its filing of this motion. Whether plaintiff would have produced these additional documents had defendant not filed this motion is not for this court to consider; it is enough that plaintiff was tardy in his production and did not supplement its responses until defendant so demanded. Plaintiff's request for costs and fees is, therefore, denied.

  E. Defendant's Supplemental Motion to Compel

  In the District's supplemental motion to compel, it argues that it was prejudiced by plaintiff's "untimely submission" of documents, notes, and records and several videotapes of the minor child during therapy sessions. Plaintiff produced these materials on July 27, 2005 (one day before the deposition of plaintiff's expert, Dr. Dvoskin, and over a year after it had served its discovery requests). Dr. Dvoskin had relied on these materials in formulating her opinion and writing her expert report. "Based on this record," the District argues, "it is unclear whether plaintiff is still withholding documentation that has been requested during discovery." Def.'s Supp. at 4.

  In response, plaintiff explains that, when Dr. Dvoskin's deposition was noticed for July 28, 2005, PSI requested that Dr. Dvoskin bring all documents relating to or relied upon for the preparation of her opinions and reports, but the District made no such request. Before the deposition, plaintiff's counsel met with Dr. Dvoskin, received her bills and notes, and-for the first time-received articles upon which she relied in formulating her opinion. Most of Dr. Dvoskin's notes documented her personal observation of three one-hour interviews of plaintiff conducted by Dr. Lee Haller, a consulting expert. These interviews, as well as an interview conducted by Dr. Dvoskin, were captured on videotape. The other documents consisted of medical records that had already been produced to the District and other documents that had been produced by the defendants to plaintiff.

  By producing these documents on July 27, 2005, plaintiff produced them within 30 days of learning that some of the materials were discoverable and one day before the date requested in PSI's subpoena. Plaintiff also represents that he has produced all materials responsive to the document requests identified in the District's motion. Given these representations, it is clear that plaintiff is fully complying with its discovery obligations, and the issue originally raised by the District appears moot. This is so especially because Dr. Dvoskin's deposition went forward on July 28, 2005 and the parties agreed that Dr. Dvoskin's deposition would be, and apparently was, continued on August 10, 2005 so that defendants would have ample time to prepare for the deposition.

  Curiously, in its opposition, plaintiff raised a separate issue, stating that the District had insinuated that it was entitled to the psychological notes, documents, and records generated or authored by plaintiff's consulting expert, Dr. Haller, who will not testify at trial. Although the District did not request such relief from the court in its original motion, it does request such relief in its reply.

  Under Rule 26(b)(4), a party may depose an expert "who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only . . . upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." Fed.R.Civ.P. 26(b)(4).

  As stated above, the District has received copies of the videotapes of the interviews of plaintiff that Dr. Haller conducted. The District argues that Dr. Haller is "more than a mere consulting expert" because plaintiff's testifying expert relied on interviews conducted by Dr. Haller without crediting Dr. Haller as the conductor of those interviews in her report. In addition, Dr. Haller apparently opined that Bob Doe physically abused John Doe.

  In the court's view, the District's receipt of Dr. Dvoskin's report and the videotapes, along with the opportunity to depose Dr. Dvoskin as to the basis of her opinions and expert report, constitute "other means" by which the District can discover what happened in Dr. Haller's interviews and how those interviews influenced Dr. Dvoskin's opinions. The District has failed to show the "exceptional circumstances" necessary to depose a non-testifying, consulting expert, and therefore, its supplemental motion will be denied. III. CONCLUSION

  Upon consideration of the motions, oppositions, and replies, it is, hereby, ORDERED The District of Columbia's Motion to Compel Discovery ("Def.'s Mot.") [#187] is GRANTED IN PART and DENIED IN PART, and District of Columbia's Supplement to Its Motion to Compel ("Def.'s Supp.") [#214] is DENIED. For any obligations imposed by this Memorandum Order for which a specific deadline is not provided, the obligated party shall comply within 10 days of the expiration of the stay ordered by Judge Kessler on September 14, 2005.

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