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Miller v. Holzmann

October 31, 2006


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


Currently pending and ready for resolution is Relator Richard F. Miller's Motion to Compel Discovery Responses from Defendant Bilhar International Establishment f/k/a Harbert International Establishment ("MTC") [# 378]. For the reasons stated below, the motion will be granted in part and denied in part.

Relator propounded 15 interrogatories, 84 requests for admission, and 46 requests to produce documents to this defendant, which I shall call "Bilhar."

I. Interrogatories

Bilhar declined to answer any of the interrogatories on the grounds (inter alia) that "Bilhar does not have any employee, agent or representative who is able to provide substantive responses to these interrogatories or who is able to verify the responses pursuant to the requirements set forth in Federal Rule of Civil Procedure 33(b)(2)." MTC, Exhibit D. Relator represents that, in a telephone conversation, Bilhar's counsel stated that Bilhar is "essentially an empty shell without any current employees or officers." Id. at 5. Additionally, as I have explained elsewhere, Bill Harbert, Bilhar's Chairman, is suffering from dementia, as attested to by two physicians.

In a footnote in her opposition, Bilhar's counsel indicates that she was willing to provide unverified responses to the interrogatories but that her proposal was rejected by relator. Defendant Bilhar International Establishment's Response in Opposition to Relator's Motion to Compel at 3 n.2. The parties agree however that Bill Harbert, were he competent, would be the appropriate person to answer the interrogatories, since he was unquestionably an officer or agent of Bilhar.

I have already concluded that the Dispute Resolution Committee has the authority, under the power of attorney that Mr. Harbert signed, to answer the interrogatories addressed to him as an individual. I see no reason to distinguish between the power of that Committee to act as Mr. Harbert's agent as an individual and its power to act on his behalf in his capacity as an officer or agent of Bilhar. I will therefore order that the Dispute Resolution Committee provide verified responses to the interrogatories propounded to Bilhar, as if they were being answered by Mr. Harbert as officer or agent of Bilhar.

I have also reviewed the unverified responses and make the following rulings as to the individual objections made to each of them: Interrogatories 1 and 2. Overruled. Like every other judge, I will not consider the objection that an interrogatory is overbroad and burdensome without a showing by affidavit why it is overbroad and burdensome.*fn1 Moreover, the request to identify persons with discoverable information is not in any way premature nor is the request to identify the documents that might be used to support a defense vague or not stated with sufficient particularity. These requests are, after all, the very standards defining a party's obligation to make initial disclosures under Rule 26 of the Federal Rules of Civil Procedure.

Interrogatory 4. The term "Frankfort Club" is not vague. I know from presiding over this case that it means a group of company representatives who, it is alleged, met to plan the conspiracy to rig bids on the projects at issue.

Interrogatories 5-8. "Harbert Corporate Entity" is not vague for I will define it as any entity in which Bill Harbert had an interest in the time during which it is alleged there was a conspiracy to rig bids on the projects at issue.

Interrogatory 12. Since relator served 84 requests to produce, and this interrogatory demands that Bilhar "describe with particularity the basis for"*fn2 its denial, Bilhar views this interrogatory as having 84 subparts. I have concluded that if a subpart of an interrogatory introduces a line of inquiry that is separate and distinct from the inquiry made by the portion of the interrogatory that precedes it, the subpart must be considered a separate interrogatory, no matter how it is designated. Willingham v. Ashcroft, 226 F.R.D. 57, 59 (D.D.C. 2005) (quoting Banks v. Office of the Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004)). That principle compels the conclusion that this interrogatory contains potentially 84 interrogatories since each denied request for admission, by necessity, raises a line of inquiry that is distinct from its predecessor. I have counted 17 instances where Bilhar denied the specific request for admission. Thus, adding 17 denials to the previous 11 interrogatories produces a total of 28, 3 more than are permitted. Therefore, Bilhar is only required to answer this interrogatory as to 14 of the 17 denials, for a total of 25.

Interrogatories 13-15. Since relator has already propounded 25 interrogatories, Bilhar's objection to these interrogatories on the grounds that they exceed the 25 permitted is sustained.

II. Requests for Admission

The defendant objected to 10 of relator's requests for admission on various grounds. I ...

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