Abrams v. Ciba Specialty Chemicals Corp.

265 F.R.D. 585, 2010 U.S. Dist. LEXIS 27770, 2010 WL 1141411
CourtDistrict Court, S.D. Alabama
DecidedMarch 19, 2010
DocketCivil Action No. 08-00068-WS-B
StatusPublished
Cited by9 cases

This text of 265 F.R.D. 585 (Abrams v. Ciba Specialty Chemicals Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abrams v. Ciba Specialty Chemicals Corp., 265 F.R.D. 585, 2010 U.S. Dist. LEXIS 27770, 2010 WL 1141411 (S.D. Ala. 2010).

Opinion

ORDER

SONJA F. BIVINS, United States Magistrate Judge.

This case is before the Court on Plaintiffs’ Second Motion to Compel and Motion for Discovery Sanctions (Doc. 278) and Plaintiffs’ Motion to Quash Subpoena. (Doc. 370). Upon review of the above-referenced motions and supporting documents, and Defendants’ responses in opposition (Does.281, 375), the undesigned finds that Plaintiffs’s Second Motion to Compel is due to be DENIED, and that Plaintiffs Motion to Quash Subpoena is due to be GRANTED.

Turning first to Plaintiffs’ Second Motion to Compel, the undersigned observes that the parties have conducted extensive discovery in this case, and in the related case of Fisher v. Ciba Specialty Chemicals Corporation, Civ. No. 03-005660WS-B. The discovery related to these cases has spanned over several years and has involved the exchange of hundreds of thousands of documents, numerous depositions and countless property inspections. Just as discovery was nearing completion in this case, Plaintiffs filed a Motion to Compel and a Motion to Extend Deadlines (Doc. 190, 194). Plaintiff sought supplemental responses to Defendants’ discovery responses and an opportunity to depose the three individuals who certified Defendants’ interrogatory responses. Plaintiffs asserted that these depositions were necessary in order to determine whether Defendants conducted a diligent search in response to Plaintiffs’ discovery requests. Defendants argued that while the individuals who Plaintiffs sought to depose could describe the procedures the Defendants used to respond to the discovery requests, the requested information related to operations dating back nearly fifty years, and as a result, there was no one within any of the named companies who had first hand knowledge regarding the information sought. Thus, the depositions would be a waste of time.

In an Order dated July 21, 2009 (Doc. 239), the Court granted Plaintiffs’ Motion to Compel in part, and directed Defendants to provide supplemental responses. In addition, the Court extended the discovery deadline to August 7, 2009 so as to permit Plaintiffs’ counsel to complete the requested depositions. More than a month after the expiration of the August 7th discovery deadline, Plaintiffs filed the instant Motion to Compel. In the motion, Plaintiffs do not contend that a specific interrogatory response was deficient. Instead, the essence of Plaintiffs’ motion is that because the three individuals who verified Defendants’ interrogatory responses testified at their depositions that they have no personal knowledge of the information contained in the interrogatory responses, and that the responses were drafted by counsel, Plaintiffs should be permitted to depose defense counsel in order to determine the steps they took to respond to the interrogatories. In response, Defendants contend that Plaintiffs’ motion is a mere delay tactic as virtually identical certifications were attached to Defendants’ prior discovery responses, that the certifications placed Plaintiffs on notice [587]*587that the interrogatory responses were drafted by counsel, and that Plaintiffs raised no objection to the certifications. In addition, Defendants note that before Plaintiffs took the depositions of the three individuals who signed the verifications, they were advised that these individuals signed the verifications in their corporate capacities, and that while they possess no first hand knowledge regarding the interrogatory responses, they could testify about the companies’ procedures which are utilized to respond to discovery requests. Defendants also assert that Plaintiffs’ motion is untimely because it was filed more than forty (40) days after the close of the extended discovery period. Defendants further assert that they have made available for deposition at least two former employees who worked at the McIntosh site, and those individuals testified regarding their knowledge of the location of documents pertaining to the DDT operations at the McIntosh site during the period in question.

The undersigned finds that Plaintiffs’ Second Motion to Compel is due to be denied because it was untimely filed. The Court’s Scheduling Order (Doc. 67) expressly provides that motions to compel are to be filed prior to the expiration of the discovery deadline. As noted supra, the discovery deadline in this case was extended, at the request of Plaintiffs, to August 7, 2009 to afford Plaintiffs’ counsel an opportunity to depose the three individuals who signed the certifications attached to Defendants’ interrogatory responses. The instant motion seeking to compel defense counsel to submit to a deposition was filed more than a month after the extended discovery deadline. Plaintiffs did not seek leave of Court before filing the motion, nor have they offered any plausible reason for their untimely filing. Accordingly, the motion is due to be denied as untimely-

The undersigned further finds that assuming arguendo that the motion had been timely filed, it would still be denied. Rule 33(b)(1) provides that interrogatories must be answered: (A) by the party to whom they are directed; or (B) if the party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. Additionally, Rule 33(b)(5) provides that the person who makes the answers must sign them, and the attorney who objects must sign any objections. In Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469 (D.C.Cir. 1995), the court explained as follows:

Federal Rule 33 expressly permits a party representative of a corporate party to verify the corporation’s answers with personal knowledge of every response by “furnishing such information as is available to the party.” Fed.R.Civ.P. 33(a) (emphasis added); see, e.g. General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1210 (8th Cir.1973), cert denied, 414 U.S. 1162, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974); United States v. 42 Jars, 264 F.2d 666, 670 (3rd Cir.1959); Chapman & Cole v. Itel Container Int’l B.V., 116 F.R.D. 550, 558 (S.D.Texas 1987), aff'd, 865 F.2d 676 (5th Cir.) cert. denied, 493 U.S. 872, 110 S.Ct. 201,107 L.Ed.2d 155 (1989); In re Folding Carton Antitrust Litigation, 76 F.R.D. 417, 419 (N.D.Ill.1977). Of course, the representative must have a basis for signing the responses and for thereby stating on behalf of the corporation that the responses are accurate. See Folding Carton, 76 F.R.D. at 419. The representative may accomplish this through whatever internal process the corporation has chosen, including discussions with counsel. C.f. Wilson, 561 F.2d at 508 (corporate attorneys authorized to sign corporation’s interrogatory responses.)

Id. at 1482.

In the case sub judice, Defendants’ interrogatory responses, which contained objections, were signed by counsel for Defendants. (Docs.278-1, 278-2, 278-3, 278-4). In addition, the interrogatory responses included certifications that were completed by Patricia Henry, Assistant Secretary for Ciba Corporation, Joseph Lulak, Vice President for Novartis Corporation and Millie L. Wright, Assistant Secretary for Syngenta Corporation Protection, Inc.

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265 F.R.D. 585, 2010 U.S. Dist. LEXIS 27770, 2010 WL 1141411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrams-v-ciba-specialty-chemicals-corp-alsd-2010.