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Caudle v. District of Columbia

December 29, 2009


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


Pending before this Court are Plaintiffs' Motion for Order Finding Waiver of Defendant's Objections Pursuant to Federal Rule of Civil Procedure 33(b)(4) Or, in the Alternative, to Compel Defendant to Identify Discovery Withheld and Grounds Therefore ("Motion for Waiver") [74]; Defendant's opposition to the Motion ("Opposition to Motion for Waiver") [81]; and Plaintiffs' reply to the Opposition ("Reply to Opposition to Motion for Waiver") [86]. Also pending before this Court are Plaintiffs' Motion to Compel ("Motion to Compel") [75]; Defendant's Opposition to the Motion to Compel ("Opposition to Motion to Compel") [82]; and Plaintiffs' Reply to the Opposition to the Motion to Compel ("Reply to Opposition to Motion to Compel") [85].*fn1 The Court held a hearing on these two motions on October 15, 2009. Upon consideration of Plaintiffs' Motion for Waiver, the memoranda in support thereof, the Opposition thereto and the record in this case, for the reasons set forth below, the Plaintiffs' Motion for Waiver is granted in part and denied in part. Plaintiffs' Motion to Compel is also granted in part and denied in part. A separate Order accompanies this Memorandum Opinion.

I. Background

Plaintiffs are African-American police officers in the Metropolitan Police Department ("MPD") of the District of Columbia. (Pl. 3rd Am. Cmpl. [3] ¶ 1.) Plaintiffs allege that the MPD violated their civil rights, see 42 U.S.C. § 2000e, et seq., and the District of Columbia Human Rights Act, DC Code § 2-1401.01, et seq., by retaliating against them for complaining about discriminatory conduct by means of an anonymous complaint sent to MPD on June 16, 2006, and a complaint filed on August 24, 2006. (Id.) Plaintiffs allege that Defendant's retaliatory acts included their transfer from the Focus Mission Unit ("FMU"), an elite unit in the MPD's First District, which was responsible for targeting major criminal activities. (Pl. 3rd Am. Cmpl. [3] ¶2.) Plaintiffs further allege that they were demoted. (Pl. 3rd Am. Cmpl. [3] ¶8.)

Plaintiffs served their discovery requests on Defendant District of Columbia (hereinafter, "Defendant" or the "District") on October 1, 2008 and Defendant's responses were initially due by November 24, 2008. Plaintiffs consented to a 14-day extension of the due date and thus, Defendant's responses were due on December 8, 2008; however, it was not until December 29, 2008, twenty-one days after the extended deadline for a response, that the District responded to Plaintiffs' document requests. The District subsequently responded to Plaintiffs' interrogatories on January 14, 2009, thirty-seven days after the extended deadline. On February 24, 2009, Plaintiffs filed a motion to compel discovery responses and for sanctions [38/39], alleging that the discovery responses provided by the District were "substantially deficient." (Motion for Waiver at 3, 4.)*fn2 In their motion to compel discovery, Plaintiffs also alleged that Defendant had waived its objections to their discovery requests by not responding in a timely fashion. (Motion [38] at 1.) This Court denied Plaintiffs' motion without prejudice, noting that it could be renewed after the Plaintiffs complied with the "meet and confer" requirements set forth in Local Civil Rule 7(m). (March 23, 2009 Memorandum Order [49].)*fn3

Subsequent to the Court's March 23, 2009 Memorandum Order, the parties participated in telephonic status conferences with the Court on May 1, 2009; May 5, 2009; June 17, 2009; and June 22, 2009, in an attempt to informally resolve some of the ongoing discovery disputes.*fn4 In a Minute Order dated June 22, 2009, the Court granted Plaintiffs' request for leave to [re]file its motion to compel, acknowledging that Plaintiffs had satisfied the requirement under Local Civil Rule 7(m) to attempt to meet and confer in good faith, but asked that Plaintiffs defer filing such motion until June 29, 2009. On September 4, 2009, Plaintiffs filed their "renewed" motion to compel [75], and Plaintiffs simultaneously filed a motion for waiver of objections [74].

II. Analysis- Motion for Waiver

A. Defendant's Procedural Objections

Defendant contests the filing of Plaintiff's Motion for Waiver [74] on grounds that Plaintiffs failed to comply with their "meet and confer" obligations set forth in LCvR 7(m), prior to filing such motion. This assertion is contrary to the record in this case which verifies that the parties repeatedly engaged in telephone conferences with the Court, for the purpose of narrowing discovery disputes. The record in this case also includes correspondence sent by the Plaintiffs to the District, which highlighted perceived discovery deficiencies. Furthermore, the fact that the Court granted Plaintiffs' request for leave to [re]file their motion to compel (which included an argument about waiver of objections) should have made it eminently clear to the District that Plaintiffs intended to refile their motion to compel and request a waiver of objections.*fn5 Finally, the Court finds disingenuous Defendant's focus on procedural issues when the substantive inquiry at issue in this case is Defendant's failure to provide timely discovery responses.

B. Legal Standard for Waiver of Objections

Plaintiffs argue that the District has waived its objections to their discovery requests pursuant to Fed. R. Civ. P. 33 and 34 and relevant case law by failing to serve any "objections or responses until several weeks after its already extended deadline for issuing responses." (Motion for Waiver at 1, 4.)*fn6 Nor has the District provided a privilege log to explain the grounds for any documents being withheld. (Motion for Waiver at 2.)

"Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure." Fed. R. Civ. P. 33(b)(4). While Rule 34 lacks similar waiver provisions, this Circuit has applied the waiver provision applicable to interrogatories under Rule 33 to document requests. Myrdal v. District of Columbia, No. 05-02351, 2007 WL 1655875 at *3 (D.D.C. June 7, 2007) (finding Defendant waived objections when he answered discovery requests two months late); Fonville v. District of Columbia, 230 F.R.D. 38, 42 (D.D.C. 2005) (finding Defendant waived objections when he filed his responses 20 days late.)

In general, untimely objections to discovery requests are waived. In re Papst Licensing GMBH & Co. KG Litig., 550 F. Supp. 2d 17, 22 (D.D.C. 2008). A court may however excuse a failure to timely object if it finds good cause. See Byrd v. Reno, No. 96-2375, 1998 WL 429676 at *6 (D.D.C. Feb. 12, 1998) (defining good cause as medical emergency or where requests are so patently irrelevant that accepting a late objection is necessary for the court to "prevent [ ] misuse of its processes.") The court may also reject a waiver where the opposing party will not suffer prejudice and the delinquent party has not demonstrated a pattern of misconduct. See Burlington v. Okie Dokie, 368 F.Supp.2d 83, 91 (D.D.C. 2005) (allowing Plaintiff to object despite responding 9 days after deadline); Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C. 1999) (finding Plaintiff did not waive her objections where she filed answers 5 or 9 days late and where Defendant also missed deadlines for court filings)

1. Establishing Good Cause

The District argues that this jurisdiction "has not articulated a concise framework defining the term 'good cause' [but] other courts have adopted a multi-factor test that is consistent with this Court's prior precedent." (Opposition at 3, citing Enron Corp. Sav. Plan v. Hewitt Assocs., L.L.C., 258 F.R.D. 149, 156-57 (S.D. Tex. 2009), Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005); Burlington v. Okie Dokie, 368 F. Supp.2d 83, 91 (D.D.C. 2005)). The Hall case, id at 474, cited by Defendant, sets forth the following factors for the Court's consideration of "good cause":

(1) the length of the delay or failure to particularize; (2) the reason for the delay or failure to particularize; (3) whether there was any dilatory or bad faith action on the part of the party that failed to raise the objection properly; (4) whether the party seeking discovery has been prejudiced by the failure; (5) whether the document production request was properly framed and not excessively burdensome; and (6) whether waiver would impose an excessively harsh result on the defaulting party.

In the instant case, the District is unable to demonstrate any "good cause" for its inordinate delay in providing a response ...

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