United States District Court, District of Columbia
ALAN KAY, Magistrate Judge.
The parties consented to assigning this matter to a United States Magistrate Judge. (Meet and Confer  at 2). This case was reassigned to the undersigned for all purposes pursuant to Local Civil Rule 73.1(a). (Order of Referral ; Referral to Magistrate Judge ). Pending before the Court is Plaintiff's Motion and Memorandum to Compel Discovery ("Motion") ; Defendant David Nuyen's Response to the Motion ("Response")  and Plaintiff's Reply to the Response ("Reply") . On June 22, 2015, this Court held a hearing on the Motion. (June 22, 2015 Minute Entry). For the reasons set forth in this Memorandum Opinion, the Court grants in part and denies in part Plaintiff's Motion and Memorandum to Compel Discovery.
The underlying suit involves allegations of failure to pay overtime wages under the Federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq. (2012) and the D.C. Minimum Wage Act of 1992, D.C. Code §§ 32-1001, et seq. (2015). (Compl.  1). Jose Milton Bautista Escamilla ("Plaintiff") alleges that he was an employee of David Nuyen d/b/a USA Home Champion Realty and d/b/a Opmax ("Mr. Nuyen"), USA Home Champion Realty, Inc. ("HCR"), Opmax Management, LLC ("OM"), and Opmax, LLC ("Opmax") (collectively, "Defendants"). (Compl. 1). Defendants deny Plaintiff was "employed' in the legal context of the term." (Answer  ¶¶ 10-18, 20, 23-30, 34-35, 46-48, 52-54). Mr. Nuyen was President and primary owner of Opmax, OM, HCR, and the multi-family Presidential rental properties that Opmax, OM, and HCR operated in Washington, D.C. (Compl. ¶¶ 6, 10; Answer ¶¶ 6, 10). Plaintiff performed property maintenance and related work duties at these properties. (Compl. ¶ 6; Answer ¶ 6).
Plaintiff contends he was employed by Defendants from about March 2008 through January 2013. (Compl. ¶ 28). During this time, Plaintiff regularly worked about sixty-six hours per week. (Compl. ¶ 29). Plaintiff was paid his regular rate of $10.00 for all of the hours he worked instead of receiving the "half time" premium of $5.00 extra per hour worked overtime. (Compl. ¶¶ 30-31). Plaintiff argues Defendants owe him unpaid overtime wages of $130.00 per week, totaling about $32, 890.00. (Compl. ¶¶ 32-33). Defendants deny these allegations, arguing that Plaintiff has been fully paid for his performance and that Plaintiff was an independent contractor. (Answer ¶¶ 22-32, Fourth Affirmative Defense; Answer to Pl.'s First Set of Interrogs. ("Answer to Plaintiff's Interrogatories") [15-3] at 3; Decl. of Sung Dang  at 3). Pursuant to Fed.R.Civ.P. 14(a), Defendants have impleaded Mr. Dang on the basis that he "acted as an independent contractor for the Defendants in the hiring, per diem and firing" of Plaintiff. (Def.'s Corrected Mot. to Implead Third Party Def.  at 1; February 13, 2015 Minute Order; Decl. of Sung Dang at 3).
The instant Motion concerns Mr. Nuyen's responses to interrogatories and requests for production of documents that Plaintiff propounded to Defendants on January 2, 2015. (Pl.'s First Set of Reqs. for Produc. of Docs. to Defs. ("Plaintiff's Requests") [15-2] 1-7; Pl.'s First Set of Interrogs. to Defs. ("Plaintiff's Interrogatories") [15-2] 8-15). Discovery responses were due February 4, 2015. See Fed.R.Civ.P. 6(d), 33(b)(4), 34(b)(2)(A). Mr. Nuyen's undated answers to Plaintiff's Interrogatories did not contain objections. Mr. Nuyen untimely produced "sparse documentation" at his deposition on March 24, 2015, approximately two months after the deadline for his responses. (Motion at 6; Response at 1). About two months later, Plaintiff filed the instant Motion on May 26, 2015, seeking a court order to resolve the discovery issues and an award of attorney's fees reasonably incurred in preparation of the Motion. (Motion at 1-6).
First, Plaintiff contests Mr. Nuyen's Answer to Plaintiff's Interrogatories. (Motion at 1-5). Plaintiff argues Mr. Nuyen's responses to Interrogatory Nos. 2, 3, 4, 9, 10, 12, 13, 15, 16, 17, 18, 19, 20, 21, and 22 are incomplete. ( Id. ). Because Mr. Nuyen failed to timely object to Plaintiff's Interrogatories, Plaintiff asserts that Mr. Nuyen waived his right to object. ( Id. at 1). Plaintiff also contends Mr. Nuyen failed to comply with Fed.R.Civ.P. 33(b)(5) because he did not sign his Answer to Plaintiff's Interrogatories. ( Id. at 2, 5). Accordingly, Plaintiff requests that this Court order Mr. Nuyen to "immediately provide sufficient responses" to the fifteen contested interrogatories. ( Id. at 1-5). Opposing the Motion, Mr. Nuyen argues he fully answered all of Plaintiff's Interrogatories during his deposition on March 24, 2015. (Response at 1; Motion at 6).
Second, Plaintiff contests Mr. Nuyen's responses to Plaintiff's Requests. (Motion 1, 5-6). Plaintiff argues Mr. Nuyen failed to provide written responses to Plaintiff's Requests and failed to timely object to Plaintiff's Requests, thus waiving his right to object. ( Id. at 1, 5). Plaintiff also asserts that Mr. Nuyen's document production is incomplete because he did not produce documents until his deposition on March 24, 2015 and then he failed to produce the additional documents he promised at his deposition that he would provide. ( Id. at 6). Accordingly, Plaintiff requests that the Court compel Mr. Nuyen to respond to Plaintiff's Requests and produce all responsive documents. ( Id. at 1, 6). Mr. Nuyen produced payment records with his Response on June 1, 2015 (Response at 1, 4-5). In his Response, Mr. Nuyen indicated that he has "no further documents to be produced, " despite identifying "nearly unreadable work sheets" that had not yet been produced. ( Id. at 1; Reply at 1). At the hearing, Mr. Nuyen's counsel represented that the worksheets had been produced and the document production was complete with the exception of a Service Agreement, which Mr. Nuyen was attempting to locate.
II. LEGAL STANDARD
Pursuant to Fed.R.Civ.P. 37(a)(3)(B), a party propounding discovery or taking a deposition may seek an order compelling responses when an opposing party has failed to respond or has provided incomplete responses. A response that is evasive or incomplete "must be treated as a failure to... respond." Fed.R.Civ.P. 37(a)(4). The movant "bears the initial burden of proving that the information sought is relevant." Alexander v. FBI, 186 F.R.D. 154, 159 (D.D.C. 1999). Trial courts have considerable discretion when handling discovery matters. See Food Lion, Inc. v. United Food & Commercial Workers Int'l. Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997) (citing Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988)) ("[A] district court's decision to permit or deny discovery is reviewable only for an abuse of discretion."). If a motion to compel is granted, the court will order the responding party to pay the moving party reasonable expenses incurred in bringing the motion, including reasonable attorney's fees, barring a few exceptions. See Fed.R.Civ.P. 37(a)(5)(A). If the motion is partially granted, the court may order the responding party to pay the moving party reasonable expenses for the motion. See Fed.R.Civ.P. 37(a)(5)(C).
A. Scope of Discovery
The scope of discovery in civil actions is broad and allows for discovery of "any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). The term "relevant" is interpreted broadly. See Alexander v. FBI, 194 F.R.D. 316, 325 (D.D.C. 2000) (citing Alexander, 186 F.R.D. at 18). A showing of relevance is a showing of need. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984) (citing Fed.R.Civ.P. 26(b)(1)). A party "is presumed to have no need of a matter not relevant to the subject matter involved in the pending action.'" Id. Relevant information does not need to be admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." See Fed.R.Civ.P. 26(b)(1). Discovery of relevant materials includes "any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted); see also McPeek v. Ashcroft, 212 F.R.D. 33, 34 (D.D.C. 2003) (whether information is relevant is "a function of the relationship of the data to the... central accusations of [the] lawsuit."); 8 Fed. Prac. & Proc. Civ. § 2008, 105-06 (3d ed.) ("No one would suggest that discovery should be allowed of information that has no conceivable bearing on the case."). After relevance is established, the responding party has the burden of proving the discovery should not be permitted. See Alexander, 194 F.R.D. at 325 (citation omitted). Once a relevancy objection has been made, the party seeking discovery has to demonstrate that the information sought to be compelled is discoverable. Id.
Pursuant to Fed.R.Civ.P. 26(b)(2)(C), the court may limit discovery on motion or its own initiative, if it determines that the "burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issue at stake in the litigation, and the importance of the proposed discovery in resolving those issues." Tooley v. Napolitano, 556 F.3d 836, 841 (D.C. Cir. 2009); see also Hammerman v. Peacock, 108 F.R.D. 66, 67 (D.D.C. 1985) (Rule 26(b)(1) was amended to give the court the power, sua sponte, to limit discovery); Smith v. Cafe Asia, 246 F.R.D. 19, 21-22 (D.D.C. 2007) (the trial court balances competing concerns when determining discovery matters).
Parties are required to answer interrogatories separately and fully in writing under oath or state the reasons for their objections and answer to the extent the question is not objectionable. See Fed.R.Civ.P. 33(b). Answers to interrogatories must be "true, explicit, responsive, complete, and candid." Covad Commc'ns Co. v. Revonet, Inc., 258 F.R.D. 17, 19 (D.D.C. 2009) (citing Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007)). "[A]n evasive or incomplete answer is to be treated as a failure to disclose, answer, or respond." Doe v. D.C., 231 F.R.D. 27, 31 (D.D.C. 2005) (internal quotations omitted); accord Fed.R.Civ.P. 37(a)(4). Failing to respond to interrogatories is sanctionable. See Fed.R.Civ.P. 37(d). Once a party responds to an interrogatory, it must correct or supplement its response pursuant to a court order or "if the party learns that in some material respect" the response is incorrect or incomplete. Fed.R.Civ.P. 26(e)(1)(A), (B); see also Norden v. Samper, 544 F.Supp.2d 43, 49 (D.D.C. 2008) (noting a party's duty to supplement discovery).
C. Requests for Production of Documents
Document requests are governed by Fed.R.Civ.P. 34. Any party may serve on any other party a request to produce "any designated documents or electronically stored information stored in any medium from which information may be obtained within the scope of Rule 26(b), that are in the possession, custody, or control of the party upon whom the request was served." Thong v. Andre Chreky Salon, 247 F.R.D. 193, 195 (D.D.C. 2008) (citing Fed.R.Civ.P. 34(a)(1)(A)). In addition to producing responsive nonprivileged documents as they are kept in the usual course of business, the responding party must also respond in writing. See Fed.R.Civ.P. 34(b)(2)(A), (E); see also Fed.R.Civ.P. 26(b)(5). Once a party responds to a request for production of documents, it must correct or supplement its response pursuant to a court order or "if the party learns that in some material respect" the response is incorrect or incomplete. Fed.R.Civ.P. 26(e)(1)(A), (B).
As a preliminary matter, the Court notes that the Motion does not technically comply with Fed.R.Civ.P. 37 or the Local Rules of the United States District Court for the District of Columbia. Pursuant to Fed.R.Civ.P. 37(a)(1), a motion for an order compelling disclosure or discovery must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Similarly, Local Civil Rule 7(m) sets forth a "duty to confer" with opposing counsel in a good-faith effort when a party anticipates filing a nondispositive motion to determine whether there is opposition and whether the scope can be narrowed. Courts have held that conferring with the opposing party is a prerequisite to any successful motion to compel. See U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 235 F.R.D. 521, 529-30 (D.D.C. 2006) (denying motion to compel for failure to meet and confer prior to filing).
Here, the Motion does not include this certification, nor does it attach examples of good faith conferences, or attempts thereof, with opposing counsel. At the hearing, Plaintiff's counsel explained that he had sent Mr. Nuyen a good faith letter and called multiple times. The Court ordered Plaintiff to file this correspondence and he subsequently did on June 30, 2015. (June 23, 2015 Minute Order; Good Faith Letter). The Court finds Plaintiff's April 22, 2015 Good Faith Letter a sufficient good faith effort to confer in accordance with Fed.R.Civ.P. 37(a)(1). The correspondence raises the issues in the instant Motion. First, it identifies and explains the deficiencies in the Answer to Plaintiff's Interrogatories. Second, it notifies Mr. Nuyen that Plaintiff never received Mr. Nuyen's written answers to Plaintiff's Requests. The correspondence also notifies Mr. Nuyen that Plaintiff will file a motion with the Court if Mr. Nuyen fails to resolve these discovery issues. Thus, the Court is satisfied that Plaintiff conferred in good faith with Mr. Nuyen to resolve this discovery dispute prior to filing the Motion. Dismissing the Motion on grounds that Plaintiff did not provide a certification would merely lengthen the litigation process and increase costs to the parties, instead of ensuring a "just, speedy, and inexpensive determination[.]" Fed.R.Civ.P. 1.
A. Mr. Nuyen's Responses to Plaintiff's Interrogatories are Insufficient
Plaintiff contends Mr. Nuyen "failed to provide sufficient responses" to Plaintiff's Interrogatories because Mr. Nuyen's responses were incomplete and not verified with his signature. (Motion at 1-2). Mr. Nuyen asserts that he provided the requested information during his deposition. (Response at 1). The Court finds that Mr. Nuyen's responses are inadequate and Mr. Nuyen waived his right to raise objections to Plaintiff's Interrogatories. Additionally, the Court finds that Mr. Nuyen failed to comply with fundamental requirements set forth in the Federal Rules of Civil Procedure and Local Rules of the ...