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Dodson v. Lowe's Home Center

July 6, 2006

TOMMY DODSON, PLAINTIFF,
v.
LOWE'S HOME CENTER, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Before the Court is plaintiff's motion to: (1) compel defendant General Electric to properly and more fully respond to interrogatories and requests for production propounded on or about October 21, 2005, or provide a privilege log; (2) compel defendant Lowe's Home Centers to properly and more fully respond to interrogatories propounded on or about December 15, 2005, or provide a privilege log; (3) sanction General Electric and Lowe's; and (4) suspend all defendants' initiation of discovery, even that by defendants Emerson Electric Company and Therm-O-Disc, Inc. (Doc. 53; see also Doc. 55). Defendants General Electric ("GE") and Lowe's Home Centers ("Lowe's") have responded to plaintiff's specific discovery issues. (Docs. 57 and 59). Defendants Emerson Electric Company ("Emerson") and Therm-O-Disc, Inc. ("Therm-O-Disc") object to the proposed remedy, noting that their discovery responses are not at issue in the motion to compel. (Doc. 54). Plaintiff also moves for oral argument, so all parties may be heard and "seek clarification of all judicial directives." (Doc. 56).

Oral Argument

As a preliminary matter, plaintiff's motion for oral argument (Doc. 56) is denied. This case and the parties' discovery disputes are relatively uncomplicated and do not warrant oral argument. The Court's orders to date, as well as this order, speak for themselves. It is the Court's practice to cite to applicable Federal Rules of Civil Procedure, Local Rules and other authoritative sources with which the attorneys are expected to be familiar.

Interrogatories Directed to GE

Interrogatory No. 1 seeks the identity, title and address of each person answering the interrogatories, which were obviously propounded upon a corporate defendant. "General Electric Company, a New York Corporation" is the formal response. GE's response to plaintiff's entire set of interrogatories is prefaced with an explanation that the responses were prepared by legal counsel, based on the knowledge of GE and counsel. (Doc. 53, Exhibit 1b, p. 1). There is also a caveat indicating that GE reserves privilege regarding the knowledge of legal counsel, and noting that word usage and sentence structure may be that of legal counsel. The responses are signed solely by counsel, Michael T. Kokal, of Heyl, Royster, Voelker & Allen, and there is no indication that the responses are under oath.

Federal Rule of Civil Procedure 33(a) provides that an officer or agent of a corporation should respond to interrogatories propounded upon a corporation. Therefore, attorney Kokal may very well be authorized to speak for his corporate client. However, Rule 33(b) clearly requires that answers be under oath, which they are not. Furthermore, Interrogatory No. 1 specifically asks for the identities of those who answered the interrogatories, and GE has simply not provided the information requested. Interrogatories in general, and Interrogatory No. 1 in particular, serve many purposes, including identifying individuals with knowledge who may be worth deposing, and enabling a response to be attributed to a specific person(s). GE's failure to respond to Interrogatory No. 1, combined with its prefatory remarks and caveat, casts doubt on all of defendant's responses, delays and hinders the discovery process and, therefore, is unacceptable. See American Bar Association, Civil Discovery Standards, Standard 6, and Commentary (2004). Therefore, all of GE's interrogatories must be reviewed and revised accordingly.

Interrogatory No. 2 is aimed at basic information about the manufacture of the clothes dryer at issue in the case. GE indicated that Camco was the manufacturer, but did not answer whether Camco is one of its divisions, or where the dryer was manufactured. Responses to other interrogatories refer to the dryer being a "GE dryer," "manufactured by GE," thus illustrating the importance of the missing and/or ambiguous information. Therefore, GE must review and revise its response to Interrogatory No. 2. For similar reasons, GE must review and revise its responses to Interrogatories 4 and 5.

Interrogatory No. 3 pertains to whether the dryer has been discontinued; if so, why; whether there have been reported problems or difficulties with the model; and what changes or modifications in design have been made and why. Interrogatory No. 25 is very similar. GE generally objects that the requests are overly broad, unduly burdensome, and seek irrelevant information. More specifically, GE observes that not every design change is relevant to whether the dryer was defective. As drafted, the Court agrees that Interrogatories 3 and 25 are overly broad and will likely require a great deal of irrelevant design changes, all of which would have to be listed and explained. Therefore, GE's objection is sustained and its partial answer/explanation is deemed satisfactory.

Interrogatory No. 6 seeks a comparison between the dryer at issue and "comparable products within the industry." GE correctly observes that this interrogatory is overly broad, unduly burdensome, and calls for irrelevant information. Therefore, GE need not respond further to this request.

Interrogatory No. 7 (and its 16 subparts) is aimed at detailed information about the thermostat, temperature control and temperature limiting device in the dryer. GE's response only indicates the dryer contains four specified thermostats, all manufactured by Therm-O-Disc. Federal Rule of Civil Procedure 33(a) indicates that responses to interrogatories should provide "information as is available to the party." Therefore, revealing that the thermostats were manufactured by Therm-O-Disc does not necessarily fulfill GE's obligation. Therefore, GE should review and revises its response to Interrogatory No. 7.

Interrogatories 8-11 seek detailed information about safety devices, including the thermostats, whether there are recommended safety tests, and which tests were actually performed. GE directs plaintiff to the parts catalogue, identifies the part numbers for the thermostats and indicates one government test was performed. Plaintiff correctly observes that defendant did not provide the details that were specifically requested. Therefore, GE must review and revise its response to Interrogatories 8-11.

Interrogatories 13, 15 and 16 inquire about instruction manuals, brochures and the like, and seek specific information about any such instructional materials. GE produced three documents, but did not provide the other specifics requested. Therefore, GE must review and revise its response to Interrogatory No. 13. GE's response to Interrogatory No. 15 is adequate.

GE properly objected that Interrogatory No. 16 is vague and unintelligible and seeks some irrelevant information, in that it asks GE to "[l]ist the five major potential hazards that the product, similar products, and comparable products create," and "each and every step the defendant took to minimize potential injuries to the users of the product and similar products."

Interrogatory No. 17 requests a description, in complete detail, of all advertising GE has used to promote the dryer at issue and similar products." GE correctly objects that the request is overly broad, unduly burdensome, vague and would encompass irrelevant information.

Interrogatory No. 19 seeks a description in complete detail of all warranties in connection with the dryer at issue and similar products. GE indicated the requested information is contained in the instruction manuals provided to plaintiff and warning labels. The Court finds GE's response adequate, particularly since the request is overly broad as drafted-- it is better suited as a request for production.

Interrogatory No. 20 asks GE to identify any complaints of injuries, damages or unusual occurrences resulting from the model dryer at issue, or similar or comparable models. GE indicates it reserves final answer until plaintiff's deposition has been taken. GE also objects that the request is overly broad, unduly burdensome, vague, and not reasonable calculated to lead to the discovery of admissible evidence. GE's desire to wait to respond is not well taken. However, the interrogatory, as drafted, is overly broad and vague. Therefore, GE need not respond further to Interrogatory No. 20.

Interrogatory No. 21 asks GE to list "every mistake, misuse, abuse, lack of care, occurrence of negligence, improper or inadequate act" that caused or contributed to the fire and any risk of injury or damage from using het dryer. GE correctly objects that the interrogatory is overly broad, unduly burdensome, vague, and cannot even be properly responded to until after plaintiff's deposition is taken. GE need not respond further to Interrogatory No. 21.

Interrogatory No. 23 asks GE to identify all documents discussing or related to this lawsuit of the dryer at issue, authored after March 10, 2004. GE correctly objects that the request is overly broad, unduly burdensome, and vague as it is drafted. GE also asserts that attorney work product and privileged materials are also implicated, but GE does not provide a privilege log. Given that the request itself has been found faulty, GE need not provide a privilege log. Of course, if a similar, albeit more specific, request is directed at GE, a privilege log would be required.

Requests for Production Directed to GE

Requests 1-4 essentially seek GE's potential expert disclosures. GE correctly observes that plaintiff cannot preemptively seek GE's expert disclosures, or expand the scope of the required ...


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