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Cohen v. United States

United States District Court, D. South Carolina, Columbia Division

April 20, 2018

Helga Cohen, Steven Cohen, Lisa Echols, Robert Echols, Jr., Melissa Fritz, Wayne Fritz, Alexander Giles, Carolyn Giles, Aimee Gondi, Gokul Gondi, Denise Hubbard, Charles Hubbard, Christopher Long, Leslie Long, Jane Marshall, Christopher Marshall, Joseph Park, Sohee Park, John Parrott, Krista Parrott, Jesse Myers, Jacqueline Myers, Kim Rich, Smythe Rich, and Donna Strom, Plaintiffs,
v.
United States of America, Defendant. Martha Brown, Frank Brown, Jennifer Feldman, Barry Feldman, John Babson, Steve Cloud, Laura Cloud, and Elizabeth Brogdon, Plaintiffs,
v.
United States of America, Defendant.

          ORDER

         Plaintiffs above-named collectively filed these related actions seeking money damages from Defendant United States of America for the destruction caused to their homes by flood water released when the Semmes Lake Dam at Defendant's army installation Fort Jackson (South Carolina) was breached in October 2015. See Cohen v. United States, Civil Action No. 3:16-cv-01489-JMC, ECF No. 1 (D.S.C. May 9, 2016) (“Cohen”) and Brown v. United States, Civil Action No. 3:16-cv-03053-JMC, ECF No. 1 (D.S.C. Sept. 8, 2016) (“Brown”).

         This matter is before the court by way of Defendant's Motion to Compel Discovery Responses filed on March 23, 2018. (ECF No. 108 (Cohen); ECF No. 51 (Brown).) Plaintiffs oppose Defendant's Motion in its entirety. (ECF No. 116 (Cohen); ECF No. 59 (Brown).)

         I. RELEVANT BACKGROUND TO PENDING MOTION

         On November 22, 2017, Defendant served its First Set of Interrogatories and Third Set of Requests for Production of Documents and Things on Plaintiffs. (ECF Nos. 108-1 & 108-2 (Cohen); ECF Nos. 51-1 & 51-2 (Brown).) On December 27, 2017, Plaintiffs provided Defendant with responses to the aforementioned discovery requests. (ECF No. 108 at 2 (Cohen); ECF No. 51 at 2 (Brown).) Upon review of Plaintiffs' discovery responses and/or objections, Defendant found deficient several of Plaintiffs' responses. Between approximately January 4, 2018, and March 23, 2018, the parties conferred regarding the discovery responses and Plaintiffs attempted to supplement their allegedly deficient responses. (ECF Nos. 108-3, 108-4, 108-5, 108-6 & 108-7 (Cohen); ECF Nos. 51-3, 51-4, 51-5, 51-6 & 51-7 (Brown). After the parties were unable to resolve the discovery dispute resulting from the alleged deficiencies in Plaintiffs' discovery responses, Defendant filed a Motion to Compel on March 23, 2018. (ECF No. 108 (Cohen); ECF No. 51 (Brown).) On April 6, 2018, Plaintiffs filed their Memorandum in Opposition to Defendant's Motion to Compel. (ECF No. 116 (Cohen); ECF No. 59 (Brown).)

         II. JURISDICTION

         The court has subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1346(b)(1), which grants district courts original jurisdiction over civil actions against Defendant including those brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, wherein Defendant can be found “liable to a tort claimant to the same extent that a private person would be liable according to the law of the state of the occurrence.” Juaire v. United States, No. 4:09-cv-709-TLW, 2012 WL 527598, at *10 (D.S.C. Feb. 16, 2012) (citing 28 U.S.C. § 1346(b) and § 2674).

         III. LEGAL STANDARD

         A. Discovery Generally

         Amended Rule 26 of the Federal Rules of Civil Procedure provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, . . . .” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

         The scope of discovery permitted by Fed.R.Civ.P. 26 is designed to provide a party with information reasonably necessary to afford a fair opportunity to develop its case. Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983 (4th Cir. 1992) (“the discovery rules are given ‘a broad and liberal treatment'”) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). That said, discovery is not limitless and the court has the discretion to protect a party from “oppression” or “undue burden or expense.” Fed.R.Civ.P. 26(c).

         B. Motions to Compel

         “If a party fails to make a disclosure” required by Fed.R.Civ.P. 26, “any other party may move to compel disclosure and for appropriate sanction” after it has “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a). Specifically, a party “may move for an order compelling an answer, designation, production, or inspection.” Fed.R.Civ.P. 37(a)(3)(B). Broad discretion is afforded a district court's decision to grant or deny a motion to compel. See, e.g., Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995) (“This Court affords a district court substantial discretion in managing discovery and reviews the denial or granting of a motion to compel discovery for abuse of discretion.”) (Internal citation omitted); Erdmann v. Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988); LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel discovery is addressed to the sound discretion of the district court.”).

         IV. ANALYSIS

         A. Overview of Discovery

         The court adheres to the basic premise that the scope of discovery under Rule 26 is defined by whether the information sought is (1) privileged, (2) relevant to a claim or defense and (3) proportional to the needs of the case. E.g., Gordon v. T.G.R. Logistics, Inc., Case No. 16-cv-00238-NDF, 2017 WL 1947537, at *2 (D. Wyo. May 10, 2017). “While the party seeking discovery has the burden to establish its relevancy and proportionality, the party objecting has the burden of showing the discovery should not be allowed and doing so through ‘clarifying, explaining and supporting its objections with competent evidence.'” Wilson v. Decibels of Or., Inc., Case No. 1:16-cv-00855-CL, 2017 WL 1943955, at *2 (D. Or. May 9, 2017) (quoting La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012) (internal citations omitted). A discovery request is relevant “if there is any possibility that the information sought might be relevant to the subject matter of [the] action.” Wilson, 2017 WL 1943955, at *5 (quoting Jones v. Commander, Kan. Army Ammunitions Plant, 147 F.R.D. 248, 250 (D. Kan. 1993)). Whether a discovery request is proportional is determined by “considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         With the foregoing as a backdrop, Defendant has filed a Motion to Compel seeking (1) responses to its First Set of Interrogatories Nos. 1-3, 5-12, 14 and 15 and (2) Third Set of Requests for Production of Documents and Things Nos. 1-6, 10 and 11. (ECF No. 108 at 4 (Cohen); ECF No. 51 at 4 (Brown).) Plaintiffs oppose the instant Motion. Upon review and consideration of the parties' respective positions, the court adjudicates each disputed discovery request as follows:

         B. First Set of Interrogatories

Interrogatory No. 1: Describe in detail all of the negligent acts and omissions by employees of the United States that Plaintiffs contend caused or contributed to their damages in this litigation, specifically identifying (a) the nature and date of each act or omission; (b) the standard of conduct that the act or omission fell below; (c) the federal, state, or local regulation or statute or other authoritative document, if any, that sets forth the standard; and (d) how each act or omission caused or contributed to Plaintiffs' damages.

(ECF No. 108-1 at 4 (Cohen); ECF No. 51-1 at 4 (Brown).)

         The Court's Ruling:

         The parties dispute the sufficiency of Plaintiffs' responses to Interrogatory No. 1. Specifically, Defendant asserts that Interrogatory No. 1 is a contention interrogatory and Plaintiffs' “responses lack the detail necessary to narrow their broad claims and identify what is specifically alleged to have their claimed damages.” (ECF No. 108 at 4-5 (Cohen); ECF No. 51 at 4-5 (Brown).) In response, Plaintiffs argue that they “have provided a proper response to Defendant regarding the alleged conduct that gives rise to Plaintiffs' claims” and additionally refer Defendant to Plaintiffs' Motion for Summary Judgment (ECF No. 103 (Cohen); ECF No. 46 (Brown)) and their expert's reports for additional information. (ECF No. 116 at 8 (Cohen); ECF No. 59 at 8 (Brown).)

         Upon its review, the court finds Interrogatory No. 1 to be overly broad and unduly burdensome. “[I]nterrogator[][ies] may properly inquire into a party's contentions in the case.” Moses v. Halstead, 236 F.R.D. 667, 674 (D. Kan. 2006). However, “‘contention interrogatories' are overly broad and unduly burdensome on their face if they seek ‘all facts' supporting a claim or defense, such that the answering party is required to provide a narrative account of its case.” Id. Interrogatory No. 1 is overly broad because it requires Plaintiff to identify “all of the negligent acts and omissions” supporting their claims.” (ECF No. 108-7 at 2 (Cohen); ECF No. 51-7 at 2 (Brown).) Accordingly, the court GRANTS Defendant's Motion to Compel answers to Interrogatory No. 1 and ORDERS Plaintiffs to provide a response to Interrogatory No. 1 on or before May 8, 2018, but for the reasons noted above, only directs Plaintiffs to provide undisclosed “material” or “principal” information that supports their claims. See Moses, 236 F.R.D. at 674. In this regard, the court directs Plaintiffs to answer Interrogatory No. 1 with information that they currently have, and separately notes that Plaintiffs have an obligation to supplement their response if they obtain any additional relevant information regarding Interrogatory No. 1 after further discovery. See Fed. R. Civ. P. 26(e)(1); see also Precision Fabrics Grp., Inc. v. Tietex Int'l, Ltd., Nos. 7:17-cv-3037, 7:17-cv-3038, 2018 WL 1047155, at *5 (D.S.C. Feb. 25, 2018) (“However, a party has an ongoing duty to supplement or correct its disclosure or response ‘in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.'”) (citations omitted).

Interrogatory No. 2: Describe in detail all of the deficiencies that existed on or before October 2015 in any dam identified in Plaintiffs' response to interrogatory no. 1 that Plaintiffs contend caused or contributed to their damages in this litigation, specifically identifying (a) the nature, extent, and duration of each deficiency; (b) the standard that the dam did not meet due to the deficiency; (c) the federal, state, or local regulation or statute or other authoritative document, if any, that sets forth the standard; and (d) how each deficiency caused or contributed to Plaintiffs' damages.

(ECF No. 108-1 at 4 (Cohen); ECF No. 51-1 at 4 (Brown).)

         The Court's Ruling:

         The parties dispute Interrogatory No. 2 for the same reasons as Interrogatory No. 1. (See ECF Nos. 108 at 4-5 & 116 at 8 (Cohen); ECF Nos. 51 at 4-5 & 59 at 8 (Brown).) Therefore, for the reasons stated in the ruling regarding Interrogatory No. 1, the court GRANTS Defendant's Motion to Compel and ORDERS Plaintiffs to provide responses to Interrogatory No. 2 containing undisclosed “material” or “principal” information on or before May 8, 2018.

Interrogatory No. 3: If you contend that the South Carolina Department of Health and Environmental Controls was authorized prior to October 5, 2015, to initiate an enforcement action against the owner of a regulated dam that exhibited any deficiency listed in response to interrogatory no. 2, state the basis of that contention with respect to each such deficiency.

(ECF No. 108-1 at 4 (Cohen); ECF No. 51-1 at 4 (Brown).)

         The Court's Ruling:

         The parties do not appear to dispute the relevance and proportionality of the information considered to be responsive to Interrogatory No. 3. (See ECF No. 116 at 7 n.2 (Cohen); ECF No. 59 at 7 n.2 (Brown).) As a result, the court GRANTS Defendant's Motion to Compel and ORDERS Plaintiffs to submit responses to Interrogatory No. 3 on or before May 8, 2018.

Interrogatory No. 5: If a Plaintiff contends that any real property (including improvements thereon), or any personal property, for which damages are claimed in this litigation was not damaged by surface water or floodwater before the arrival of floodwater from the breach of Semmes lake dam, as simulated by Plaintiffs' experts, identify (a) the property (including real-property improvements); (b) whether the property in its entirety, or only some portion thereof, was undamaged until the Semmes-breach floodwaters arrived; (c) the portion of the property or improvement (e.g., basement, first floor, front yard, living room, bedroom, refrigerator, dishwasher) that was undamaged by those waters at that time; and (d) the elevation of the surface water and floodwater at the location of the undamaged property when floodwater from the breach of Semmes lake dam arrived (as estimated from Plaintiffs' experts' simulation) for each property.

(ECF No. 108-1 at 4 (Cohen); ECF No. 51-1 at 4 (Brown).)

         The ...


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