Sigman et al v. CSX Corporation et al, No. 3:2015cv13328 - Document 83 (S.D.W. Va. 2016)
Court Description: MEMORANDUM OPINION AND ORDER denying 67 MOTION by CSX Transportation, Inc. to Compel Plaintiffs' Responses to Discovery Questionnaires and for reasonable fees and costs associated with the motion. Signed by Magistrate Judge Cheryl A. Eifert on 8/18/2016. (cc: counsel of record) (mkw)
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Sigman et al v. CSX Corporation et al Doc. 83 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION BRAN D Y SIGMAN , e t al., Plain tiffs , v. Cas e N o .: 3 :15-cv-13 3 2 8 CSX CORPORATION , an d CSX TRAN SPORTATION , IN C., an d SPERRY RAIL, IN C. D e fe n d an ts . MEMORAN D U M OPIN ION an d ORD ER Cam e the parties on the 18th day of August, 20 16, by counsel, on the Motion of CSX Transportation, Inc. to Com pel Plaintiffs’ Responses to Discovery Questionnaires and for reasonable fees and costs associated with the m otion. (ECF No. 67). Sperry Rail, Inc., joined in the Motion to Com pel, but did not join in the request for reim bursem ent of fees and costs. Plaintiffs filed a response in opposition to the m otion; CSX Transportation, Inc. filed a reply; and Plaintiffs filed a sur-reply. Therefore, the m otion was fully briefed prior to the hearing. After considering the argum ents of counsel, the court D EN IES the m otion to com pel and the m otion for reasonable fees and costs for the following reasons. On December 7, 20 15, the parties filed a Report of Parties’ Planning Meeting, which included a prelim inary discovery plan. (ECF No. 31 at 3-5). As part of the plan, the defendants were required to supply certain inform ation to the plaintiffs, and the plaintiffs were required to “provide core inform ation about each plaintiff and his or her claim s, including setting up an inform ation-sharing database.” (Id. at 4). The defendants agreed 1 Dockets.Justia.com to propose categories of plaintiff-specific inform ation for the database, and the parties were to m eet and confer “to arrive at an agreed set of inform ation to be exchanged.” (Id. at 4-5). Although deadlines were set in the report for the defendants’ obligations, no deadline was set for producing the core inform ation about each plaintiff. The parties worked together for the next two m onths and ultim ately agreed on a “Discovery Questionnaire” that would be subm itted to each plaintiff. Counsel for Plaintiffs suggested that the questionnaire be subm itted in lieu of interrogatories; however, defense counsel refused that proposal.1 (ECF No. 67-4 at 2; ECF No. 67-5 at 2). The finished questionnaire was supplied to Plaintiffs’ counsel for dissem ination to the plaintiffs on February 24, 20 16. (ECF No. 67-11 at 39). At the tim e defense counsel forwarded the finished questionnaire, she requested that the com pleted form s be returned within thirty days. (Id.). However, no agreement was ever reached between the parties on the deadline for providing responses. Indeed, twenty-nine days later, on March 24, 20 16, when Plaintiffs’ counsel requested a Word version of the questionnaire, he advised defense counsel that “hopefully” responses to the questionnaires would start arriving within “a couple of weeks.” By May 6, 20 16, the defendants were becom ing increasingly im patient with the lack of responses to the discovery questionnaires. Accordingly, defense counsel advised Plaintiffs’ counsel that if com pleted questionnaires from all 96 plaintiffs were not received within one week, the defendants would seek relief 1 In a May 6, 20 16 letter from April Ross, defense counsel, to D. Blayne Honeycutt, the plaintiffs’ counsel, Ms. Ross indicates that the defendants proposed on February 1, 20 16 to subm it the questionnaires “in lieu of issuing form al interrogatories and docum ent requests.” (ECF No. 67-11 at 2). However, that statem ent directly contradicts Ms. Ross’s February 10 , 20 16 e-m ail correspondence to Mr. Honeycutt in which she stated, “the defendants cannot agree that the questionnaire is ‘in lieu of written discovery concerning [plaintiff’s] individual damages’ …[a]ccordingly, CSXT and Sperry reserve their rights as the case proceeds to serve form al discovery as allowed by the Rules.” (ECF No. 67-4 at 2). In any event, the parties m ade no form al agreem ent. No stipulation was filed, nor was an agreed order ever tendered to the court. 2 from the court. On J une 1, 20 16, the defendants filed the instant m otion to com pel. After filing the m otion, but before the hearing, 91 of the 96 plaintiffs provided their questionnaires. According to Plaintiffs’ counsel, the other five plaintiffs cannot be located. Consequently, their cases will be dism issed without prejudice. Federal Rule of Civil Procedure 37 allows a party to m ove for the entry of an order com pelling disclosure or discovery. Rule 37(a)(3)(A) and (B) set forth the specific m otions that m ay be filed, indicating that a party m ay m ove to com pel (1) a disclosure required by Rule 26(a); (2) the answer to a question under Rule 30 or 31; (3) a designation under Rule 30 (b)(6) or 31(a)(4); (4) an answer to an interrogatory under Rule 33; and (5) the production of docum ents or an inspection under Rule 34. See Fed. R. Civ. P. 37(a)(3).2 If the m otion is granted, or if the disclosure or discovery is provided after the filing of the m otion, the court “m ust, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the m otion, the party or attorney advising that conduct, or both to pay the m ovant’s reasonable expenses incurred in m aking the m otion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5). There are certain exceptions to an award of expenses, including substantial justification for the nondisclosure or nonproduction, or other circum stances that would m ake an award of expenses unjust. Id. Although the undersigned certainly appreciates the frustration experienced by the defendants in pursuing com pleted discovery questionnaires, the defendants have not provided a factual basis upon which the court can com pel answers and award expenses. The discovery questionnaires were not Rule 26(a) disclosures, and the parties had no agreem ent that the questionnaires constituted written discovery. In fact, the defendants 2 Rule 37 includes other scenarios that would justify an order compelling cooperation with discovery and an award of expenses; however, none of those scenarios applies in this case. 3 expressly declined such an agreem ent, choosing to reserve their right to file form al interrogatories and docum ent requests. Thus, the discovery questionnaire was, in effect, a type of “inform al” discovery not explicitly contem plated by Rule 37(a). Moreover, the parties had no m eeting of the m inds as to a deadline for subm ission of the com pleted questionnaires. Although deadlines were set for other inform al discovery, no deadlines attached to the plaintiffs’ questionnaires. Consequently, the court is hard-pressed to com pel the plaintiffs to provide inform ation that is not in response to a form al discovery request or disclosure, or punish the plaintiffs for failing to m eet a deadline unilaterally im posed by defense counsel. At m ost, the court can add form ality to the questionnaires by setting a deadline by which the responses m ust be provided. However, such an order is m oot, as the parties agree that all of the com pleted questionnaires have now been supplied. Wherefore, the m otion to com pel and for reasonable fees is D EN IED . The parties are encouraged to include deadlines for all inform al discovery in the future, and to do so by stipulation filed with the Clerk of Court or by an agreed order tendered to the undersigned. The Clerk is instructed to provide a copy of this Order to counsel of record. EN TERED : August 18, 20 16 4
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