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