Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kruger v. Cogent Communications, Inc.

United States District Court, District of Columbia

November 13, 2016

WILLIAM KRUGER, Plaintiff,
v.
COGENT COMMUNICATIONS, INC., Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         Pending 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.

         I. Background

         Mr. 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 follows.

         On June 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 No. 23-2.

         In any 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.

         Cogent 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.[1] What remains of the motion to compel is now ripe and ready for the Court's adjudication.

         II. Analysis

         Narrowed 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.

         A. Interrogatories 17, 18, and 19

         Defendant's 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.

         Instead, 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.

         B. Timeliness of Mr. Kruger's Objections to Requests for Production 12, 17, 23, 24, 26, 27, 28, and 29

         Defendant's 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.