The opinion of the court was delivered by: John M. Facciola United States 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.
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 ...