United States District Court, District of Columbia
G. Sullivan United States District Judge
before the Court is defendant Cogent Communications,
Inc.'s motion to compel discovery from plaintiff William
Kruger. Upon consideration of the motion, the response and
reply thereto, the parties' supplemental filings, the
applicable law, and the entire record, defendant's motion
to compel discovery is GRANTED IN PART and DENIED IN PART.
Kruger brings the underlying action here against defendant,
his former employer, alleging that defendant violated Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., by discriminating against him on the basis
of national origin and religion and by creating a hostile
work environment. Am. Compl., ECF No. 17 at 5-6. The instant
motion concerns a narrow set of issues pertaining to Mr.
Kruger's responses to interrogatories and requests for
production of documents. The somewhat convoluted sequence of
events culminating in this narrow discovery dispute is as
13, 2016, defendant's counsel sent a set of
interrogatories and a set of requests for production of
documents to Mr. Kruger's counsel via first class mail.
Def.'s Mem. Supp. of Mot. Compel Disc. (“Def.'s
Mem. Supp.”), ECF No. 23-1 at 2. Mr. Kruger's
responses were thus due by July 18, 2016. Id.
(citing Fed.R.Civ.P. 6(d), 33(b)(2), 34(b)(2)). Having not
received any responses by that date, defendant's counsel
sent Mr. Kruger's counsel an email inquiring as to when
he could expect the responses. Id. Two days later,
on July 20, Mr. Kruger's counsel's law clerk
responded to defendant's counsel, informing him that no
requests for discovery had ever been received. Id.;
see Pl.'s Opp. to Def.'s Mot. Compel Disc.
(“Pl.'s Opp.”), ECF No. 24 at 1-2. The mix-up
apparently derives from a change of addresses. Mr.
Kruger's initial filings in this case state that his
counsel's address is “888 Sixteenth St., N.W.,
Suite 800, Washington, D.C. 20006, ” see,
e.g., Compl., ECF No. 1 at 7, but later filings list the
address as “1717 K Street, N.W., Suite 900, Washington,
D.C. 20006.” See, e.g., Joint Local Civil Rule
16.3 Report, ECF No. 21 at 4. The discovery requests sent in
the mail on June 13 were sent to the Sixteenth Street
address. See Cover Letter from Ethan D. Balsam, ECF
event, on July 20 defendant's counsel re-sent the
discovery requests to Mr. Kruger's counsel via email and
pushed the response deadline back to July 28. Def.'s Mem.
Supp., ECF No. 23-1 at 2; Pl.'s Opp., ECF No. 24 at 1-2.
When the responses were not received by July 28, counsel
engaged in another round of back-and-forth and
defendant's counsel informed Mr. Kruger's counsel
that the responses would now be due by August 4 and that if
they were not received by that date a motion to compel
discovery would be filed the following day. Def.'s Mem.
Supp., ECF No. 23-1 at 3. On August 4, defendant's
counsel received documents responsive to the requests for
production of documents but did not receive written responses
to the document requests and did not receive answers to the
interrogatories. See Email from Law Clerk, ECF No.
23-11 at 1. In response to another email pushing the response
deadline for the remainder of the materials back to 5:00 p.m.
on August 5, see Def.'s Mem. Supp., ECF No. 23-1
at 4, Mr. Kruger's counsel informed defendant's
counsel via letter that no requests for discovery were
received until July 18. Letter of Gary T. Brown, ECF No.
23-15. Accordingly, Mr. Kruger's counsel asserted,
responses were due thirty days from July 18, see
id., which he determined would be August 18 or August
19. Pl.'s Opp., ECF No. 24 at 2, 5. Mr. Kruger's
counsel subsequently rejected defendant's counsel's
offer to execute a consent order setting August 19 as the
date when responses would be due. Def.'s Mem. Supp., ECF
No. 23-1 at 5.
then filed the instant motion to compel on August 12.
See Def.'s Mot. Compel Disc., ECF No. 23. On
August 22, Mr. Kruger's counsel served the written
responses to the document requests and the answers to the
interrogatories on defendant's counsel. See
Def.'s Reply, ECF No. 26 at 3. On August 25,
defendant's counsel alerted Mr. Kruger's counsel via
letter to what defendant's counsel believes to be the few
remaining deficiencies with the responses. Letter of Ethan D.
Balsam, ECF No. 26-1. Having received no response to that
letter, defendant's reply brief indicates that it has
withdrawn its motion to compel in all respects save for what
it views as the remaining deficiencies identified in the
August 25 letter to Mr. Kruger's counsel. Def.'s
Reply, ECF No. 26 at 2. Given the greatly narrowed scope of
defendant's motion and the newly-identified deficiencies,
the Court directed Mr. Kruger to file a supplemental brief
before ruling on the motion. See Minute Entry of
October 4, 2016. What remains of the motion to compel is
now ripe and ready for the Court's adjudication.
by the responses defendant received on August 22,
defendant's motion to compel now only concerns alleged
deficiencies with regard to the following discovery requests:
document requests 12, 17, 23, 24, 26, 27, 28, and 29 and
interrogatories 17, 18, and 19. See generally
Def.'s Reply, ECF No. 26. Defendant argues that because
Mr. Kruger's responses on August 22 were untimely whether
July 18 or August 18 was the response deadline, any
objections to the requests at issue are waived. Id.
at 4-5. And it argues that even if Mr. Kruger did not waive
his objections on grounds of untimeliness, his responses are
deficient such that it is entitled to “full and
complete responses to its Discovery Requests without
objection.” Id. at 5. Mr. Kruger's reply
to these arguments is largely non-responsive, as it mostly
reiterates Mr. Kruger's counsel's assertion that he
sent Mr. Kruger the discovery requests for the first time in
mid-July. Pl.'s Resp., ECF No. 30 at 1-2.
Interrogatories 17, 18, and 19
argument that Mr. Kruger has waived his opportunity to object
to its discovery requests is apparently directed at Mr.
Kruger's answers to interrogatories 17, 18, and 19, in
addition to being directed at various of Mr. Kruger's
responses to requests for document production. See
Def.'s Reply, ECF No. 26 at 4-5. However, that argument
is misguided in the context of Mr. Kruger's responses to
interrogatories 17, 18, and 19, as Mr. Kruger did not state
an objection to those interrogatories. Instead, Mr. Kruger
answered those interrogatories-which sought identifications
and descriptions of all actions that formed the basis for his
national origin discrimination, religious discrimination, and
hostile work environment claims-by stating the following:
“Please see documents (Plaintiff's EEOC complaint)
provided in response to your Request of Production No.
8.” Pl.'s Answers to Def.'s First Set of
Interrogs., ECF No. 26-3 at 12. Because no objections have
been made in the answers to these interrogatories, there is
no basis for the Court to conclude that objections have or
have not been waived due to untimeliness.
the real issue with regard to these interrogatories is
whether the answers are adequate. On this issue, defendant
argues that Mr. Kruger's answers are inadequate because a
party “may not refer generically to his document
production in responding to interrogatories, as [Mr. Kruger]
has done, but must specifically identify which document he
believes [is] responsive to each interrogatory.”
Def.'s Reply, ECF No. 26 at 10. The Court agrees with
defendant's diagnosis of the applicable legal standard.
See Fed. R. Civ. P. 33(d) (“If the answer to
an interrogatory may be determined by examining . . . a
party's business records . . . the responding party may
answer by: (1) specifying the records that must be reviewed,
in sufficient detail to enable the interrogating party to
locate and identify them as readily as the responding party
could . . . .”); see also DL v. District of
Columbia, 251 F.R.D. 38, 48 (D.D.C. 2008) (explaining
that under Rule 33(d) parties “must identify in their
answers to the interrogatories specifically which documents
contain the answer.”). But the Court disagrees with the
contention that Mr. Kruger has not satisfied this standard.
In his answers to interrogatories 17, 18, and 19, Mr. Kruger
specifically identifies his “EEOC Complaint.”
Pl.'s Answers to Def.'s First Set of Interrogs., ECF
No. 26-3 at 12. Thus, Mr. Kruger has directed defendant to
the specific document which he believes is responsive to each
interrogatory, in compliance with Rule 33(d)'s
requirement. Thus the responses defendant received were
adequate. Accordingly, defendant's motion to compel is
DENIED with regard to interrogatories 17, 18, and 19.
Timeliness of Mr. Kruger's Objections to Requests for
Production 12, 17, 23, 24, 26, 27, 28, and 29
untimeliness argument has more validity in the context of
document requests 12, 17, 23, 24, 26, 27, 28, and 29. Rule
34-the Rule relevant to requests for document
production-states: “The party to whom the request is
directed must respond in writing within 30 days after being
served . . . .” Fed.R.Civ.P. 34(b)(2)(A). If a party
objects to a request, the response must “state with
specificity the grounds for objecting to the request,
including the reasons.” Fed.R.Civ.P. 34(b)(2)(B).
Although Rule 34-unlike Rule 33, the Rule relevant to
interrogatories-does not have any express waiver language,
courts have regularly concluded that “there is no
reason to interpret the two rules differently.”
Fonville v. District ofColumbia, 230
F.R.D. 38, 42 (D.D.C. 2005). Thus, “the failure to
timely file an objection to a request for production of
documents may be deemed a waiver.” Id. A
showing of “good cause, ” however, can excuse an
untimely objection. Byrd v. Reno, No. 96-2375, 1998
WL 429676, at *6 (D.D.C. Feb. 12, 1998). And when an
objection is based on a claim of privilege, courts are
generally more reluctant to find waiver on the basis of
untimeliness, as “waiver of privilege is a serious
sanction most suitable for cases of unjustified delay,
inexcusable conduct, and bad faith.” In re Papst
Licensing GMBH & Co. KG Litig., 550 ...