United States District Court, District of Columbia
UNITED STATES ex rel. LANDIS, Plaintiff,
TAILWIND SPORTS CORP., et al., Defendants.
OPINION AND ORDER
CHRISTOPHER R. COOPER United States District Judge
government served its Third Set of Interrogatories on
Defendant Lance Armstrong on July 15, 2015. On November 30,
2015, the Court granted the government’s motion to
compel Armstrong to supplement his responses to
Interrogatories 15 through 22. ECF No. 456. Armstrong has
since supplemented these responses two additional times,
recently serving his Third Supplemental Responses on the
government. The government remains dissatisfied with four of
his answers and has moved to compel “complete
responses” to Interrogatories 16 through 19. United
States’ Summ. Disc. Dispute 1, ECF No. 515.
these interrogatories requires Armstrong to describe the
monetary benefits that he contends accrued to the United
States as a result of the U.S. Postal Service’s
(“USPS’s”) sponsorship of Armstrong’s
cycling team. The government insists that it cannot
adequately oppose Armstrong’s pending motion for
summary judgment-which seeks to establish that the USPS
ultimately profited from the sponsorship-without full
responses to the following four interrogatories:
Interrogatory No. 16: Identify the value of any earned media
or ad equivalency you contend the USPS received in connection
with the sponsorship.
Interrogatory No. 17: Identify the value of any improvement
in employee morale you contend the USPS received in
connection with the sponsorship.
Interrogatory No. 18: Identify the date, amount, and customer
for any sale by USPS that you contend resulted from the
sponsorship, and explain how the sponsorship contributed to
Interrogatory No. 19: If you contend that public perception
of the USPS brand improved as a result of the sponsorship,
identify all facts supporting your contention and state the
value of any such improvement in public perception.
most recent iteration of his responses, Armstrong pointed the
government to specified page ranges of the report of one of
his experts, Doug Kidder. For each of the four
interrogatories, Armstrong then assured the government that
“the answer to this interrogatory may be determined by
examining Mr. Kidder’s expert report, Mr.
Kidder’s reply report, Mr. [Erich]
Joachimsthaler’s [expert] report, and all documents
cited and referenced therein.” United States’
Summ. Disc. Dispute Ex. A, at 10, 15. He closed his response to
each interrogatory as follows: “Information responsive
to this request may also be located in previously-produced
documents, including as set forth in Attachment A, and the
burden of deriving or ascertaining the answer will be
substantially the same for the government as it is for
Armstrong.” Id. at 10, 13, 15, 17. Attachment
A contains identifying information for over two hundred
deposition transcripts and for hundreds of other documents
produced by the government in discovery.
government does not challenge those portions of
Armstrong’s responses that incorporate by reference
designated page ranges of his experts’ reports. But it
does contest his implicit effort to invoke Rule 33(d) of the
Federal Rules of Civil Procedure, which allows a party served
with interrogatories to forgo a comprehensive narrative
response in certain circumstances. Under that Rule,
“[i]f the answer to an interrogatory may be determined
by examining, auditing, compiling, abstracting, or
summarizing a party’s business records, ” and
“if the burden of deriving or ascertaining the answer
will be substantially the same for either party, ” then
the responding party need only “specify the records
that must be reviewed” and give the interrogating party
a “reasonable opportunity” to review them.
Fed.R.Civ.P. 33(d)(1)-(2). Importantly, the responding party
must also identify the records to be reviewed “in
sufficient detail to enable the interrogating party to locate
and identify them as readily as the responding party
could.” Id. 33(d)(1).
separate reasons, Armstrong’s Third Supplemental
Responses to Interrogatories 16 through 19 vastly exceed what
Rule 33(d) allows. First, “courts have consistently
held that [Rule 33(d)] cannot be used with respect to
contention interrogatories, ” like those at issue here.
Fleming v. Escort, Inc., No. CV 09-105-S-BLW, 2011
WL 573599, at *2 (D. Idaho Feb. 13, 2011). This is because
“documents normally reveal evidence, not a
party’s contentions or statement of facts which a party
contends supports the complaint.” SEC v.
Elfindepan, S.A., 206 F.R.D. 574, 577 (M.D. N.C. 2002)
(citing In re Savitt/Adler Litig., 176 F.R.D. 44,
49-50 (N.D.N.Y. 1997)); see also Fleming, 2011 WL
573599, at *2 (“[T]he legal contentions of a party are
not contained in old business records, and so must be
explained by counsel.”); Cleveland Constr., Inc. v.
Gilbane Bldg. Co., No. Civ. A. 05-471-KSF, 2006 WL
2167238, at *5 (E.D. Ky. July 31, 2006) (“[O]nly [the
plaintiff] knows what facts and information it has relied
upon to support the allegations made in its
complaint.”); United Oil Co. v. Parts Assocs.,
Inc., 227 F.R.D. 404, 419 (D. Md. Mar. 4, 2005)
(observing that contention interrogatories “require the
exercise of particular knowledge and judgment on the part of
the responding party”). This is especially true here,
given that items produced by the government account
for most of the documents itemized in “Attachment
A.” Of course, Armstrong’s present legal
contentions will not be found in the opposing party’s
records. The Court will not require the government to answer
its own interrogatories by filtering a mass of documentary
evidence through an adversary’s legal lens.
even assuming that Rule 33(d) could be applied to contention
interrogatories, Armstrong is “more familiar with [his]
contentions than is [the government], so the burden is not
equal.” Fresenius Med. Care Holding v. Baxter
Int’l, 224 F.R.D. 644, 652 (N.D. Cal. Feb. 5,
2004). Rule 33(d) is “suited to those discovery
requests requiring compilation or
analysis”-“inquiries of an intensely objective
nature.” United Oil, 227 F.R.D. at 419.
Responding to Interrogatories 16 through 19 would hardly be a
mechanical undertaking. Armstrong could surely
“deriv[e] or ascertain the answer[s]” more
easily than the government, Fed.R.Civ.P. 33(d), especially
since he has already filed a motion for summary judgment
encompassing his contentions regarding these four
and perhaps most glaringly, Armstrong has not described the
relevant documents “in sufficient detail to enable [the
government] to locate and identify them as readily as [he]
could.” Id. 33(d)(1). When employing Rule
33(d), a responding party must “specifically identify
the documents that contain the answers.” Covad
Commc’ns Co. v. Revonet, Inc., 258 F.R.D. 17, 20
(D.D.C. 2009). “[M]aking only a general reference to a
mass of documents or records” is an abuse of Rule
33(d). Hypertherm, Inc. v. Am. Torch Tip Co., Civ.
No. 05-cv-373-JD, 2008 WL 5423833, at *3 (D. N.H. Dec. 29,
2008); see also Oleson v. Kmart Corp., 175 F.R.D.
560, 564 (D. Kan. 1997) (noting that a party “may not
simply refer generically to past or future production of
documents” when invoking Rule 33(d)). This is precisely
what Armstrong has done. He asserts, for each interrogatory,
that responsive information may be found in
“previously-produced documents, including”-but
not limited to-those listed in the exhibit labeled
“Attachment A.” United States’ Summ. Disc.
Dispute Ex. A, at 10, 13, 15, 17. Yet this sprawling
spreadsheet does nothing to “specif[y]” which
documents support Armstrong’s valuation contentions.
Def.’s Opp’n 1-3. Nor is the government’s
requested specification “make-work, ”
id. at 1-it is an elementary requirement of Rule
33(d). When deploying that rule’s time-saving features,
a responding party must “precisely specif[y] for
each interrogatory . . . the actual documents where
information will be found.” Elfindepan, S.A.,
206 F.R.D. at 576 (emphasis added).
and relatedly, Armstrong may not waste the government’s
time by stating that responsive information “may”
be found in certain locations. United States’ Summ.
Disc. Dispute Ex. A, at 10, 13, 15, 17. When a Rule 33(d)
response is contested, the responding party “must show
that a review of the documents will actually reveal answers
to the interrogatories.” Elfindepan, S.A., 206
F.R.D. at 575. It is not enough to claim that “[t]o the
extent Armstrong has information responsive” to the
government’s interrogatories, it will be found in
certain locations. United States’ Summ. Disc. Dispute
Ex. A, at 13, 17. The Court has been given no basis for
assessing whether “the documents, in fact, contain all
of the information sought by the interrogatories.”
Elfindepan, S.A., 206 F.R.D. at 577.
Rule 33(d) cannot be used for documents other than
“business records.” Fed.R.Civ.P. 33(d). Whatever
that term’s precise scope in this context, it does not
encompass deposition transcripts or discovery materials
generally. In re Savitt/Adler, 176 F.R.D. at 49;
Elfindepan, S.A., 206 F.R.D. at 577-78.
Armstrong’s Attachment A nonetheless identifies 222
deposition transcripts. It goes on to list hundreds of other
documents by Bates ...