Al-Jundi v. Rockefeller

91 F.R.D. 590, 33 Fed. R. Serv. 2d 213, 1981 U.S. Dist. LEXIS 14996
CourtDistrict Court, W.D. New York
DecidedOctober 9, 1981
DocketCIV-75-132
StatusPublished
Cited by12 cases

This text of 91 F.R.D. 590 (Al-Jundi v. Rockefeller) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Al-Jundi v. Rockefeller, 91 F.R.D. 590, 33 Fed. R. Serv. 2d 213, 1981 U.S. Dist. LEXIS 14996 (W.D.N.Y. 1981).

Opinion

MEMORANDUM AND ORDER

ELFVIN, District Judge.

Now before me in this protracted civil rights litigation involving events surrounding the “retaking” of D-yard at the Attica (N.Y.) Correctional Facility September 13, 1971, are motions under Fed.R.Civ.P. rule 26(c) by several defendants for protective orders. At issue is the propriety of identical sets of documents listing 154 admission requests that have been served on each party. Motions have been brought by defendants Mancusi, Monahan, Oswald, Pfeil, and on behalf of defendant Estate of Nelson A. Rockefeller by the executors. Defendants Monahan, Pfeil and Oswald object that many of the 154 requests are more properly addressed to defendants other [592]*592than themselves and that, because of the breadth of coverage of the requests, they will duplicate scheduled oral depositions and are therefore unnecessary and unduly burdensome. Similarly, the executives of the Estate of Nelson A. Rockefeller object that they have no personal knowledge regarding any of the admission requests except that derived through the public media and would have to consult with counsel for other defendants in order to admit or deny the requests. Defendant Mancusi objects only as to those admission requests relating to plaintiffs’ causes of action based on the planning for the retaking of Attica and the actual assault, on the grounds that by my order of October 30,1979 the paragraphs of the Complaint related to these phases of the affair were dismissed as to himself. Several defendants object to the number of requests as excessive and also that the requests were submitted prior to a proper substitution of counsel for plaintiffs and so are not properly subscribed as required by the Federal Rules of Civil Procedure.

Dealing first with the latter and easiest of these objections, the alleged improper subscription of the admission requests is a ground too insubstantial to support an objection. The same admission requests, properly subscribed, could be served upon the objecting parties immediately were I to grant this objection.

Regarding the objections to the number of requests, in view of the complexity of issues in this case and the desirability of eliminating those issues that are not seriously controvertible, I do not find the number inordinate compared to the numbers of requests that have been permitted in other cases. See, 4A Moore’s Federal Practice, ¶ 36.04[7].

Turning to the more substantial objection of defendant Mancusi, I find that it would be improper to require admission of matters not pertinent to the cause of action against a defendant. “By its terms, Rule 36 applies to parties. The term ‘party’ is to be taken in its ordinary significance. Normally, of course, admissions would not be sought from a person not a party, since admissions by such a person would have no significance in the disposition of the case.” Id., at ¶ 36.03[2]. Mancusi is not a party to plaintiffs’ claims based on the planning and assault phases of Attica’s recapture, so that admission requests relating solely to these phases are irrelevant to the case against Mancusi. If plaintiffs intend to call defendant Mancusi as a witness in the phases of their case concerning the planning and assault, the proper pretrial discovery vehicle directed to Mancusi on these aspects would be one not limited to parties, namely a deposition, either oral or upon written questions.1 However, the occasion is not ripe for granting defendant Mancusi’s motion for a protective order, inasmuch as plaintiffs have had neither sufficient time to [593]*593consider the sufficiency of the objections as to each specified paragraph nor notice that I would recognize the grounds urged by Mancusi.

I find the contention by defendants Monahan, Oswald and Pfeil that the admission requests will be duplicated by scheduled oral depositions to be at best too speculative to support their objection. In Anderson v. United Air Lines, Inc., 49 F.R.D. 144 (S.D.N.Y.1969), the court found “no persuasive authority sustaining objections to interrogatories based upon * * * unsupported allegations that the information sought has previously been supplied by deposition or by responses to requests to admit” and observed that “the movant is obliged to indicate exactly where in the depositions or responses the answers to the interrogatories may be found.” 49 F.R.D., at 147. The objection in the instant case that depositions to be held in the future will duplicate the present admission requests is not only unsupported but insupportable and must therefore be and hereby is ORDERED denied. However, inasmuch as Pfeil and Monahan have objected generally to the undue burden of these admission requests and noticing that my Order of October 30, 1979 in this case dismissed as to defendant Pfeil the plaintiffs’ claims dealing with the planning, assault and the alleged bad faith prosecutions phases of this litigation and as to defendant Monahan the paragraphs of the Complaint alleging reprisals and bad faith prosecutions, I conclude that defendants Pfeil and Monahan also may make supportable objections to admission requests not relevant to plaintiffs’ claims remaining against them.

I arrive now at the more difficult objection of several movants that many (and, in the case of the executors of defendant Estate of Nelson A. Rockefeller, all) of the admission requests seek admission of facts within the knowledge of other parties defendant and that it is burdensome and improper to require movants to inquire of other defendants as to the truth of these requests for admission. The extent to which a party may be required to inquire of third persons in order to respond to admissions to request is by no means clearly delineated either in Fed.R.Civ.P. rule 36 or in decisional law. Rule 36 provides:

“An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.”

Thus it is apparent that under some circumstances parties must inquire of third persons in responding to admission requests,2 and that the request made by defendant Oswald, for example, “to limit the scope of the requests for information that might reasonably be expected to be within the knowledge of the defendant” clearly asks too much. The precise scope of the inquiry of third persons that rule 36 requires is less certain.

Some limitation upon this requirement appears on the face of the rule: the inquiry need only be “reasonable,” and need not extend to the gathering of information not “readily obtainable.” In Anderson v. United Air Lines, Inc., supra, it was held that the defendant airline company could reasonably ascertain information within the knowledge of one of its own pilots. A counterpoint to this decision is provided by Dulansky v. Iowa-Illinois Gas & Electric Co., 92 F.Supp. 118 (S.D.Ia.1950), which recognized the duty to reasonably inquire of third parties, but declined to require the defendant to rely upon information from its own bus driver, whom plaintiffs alleged struck and killed their decedent while driving defendant’s vehicle.

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Bluebook (online)
91 F.R.D. 590, 33 Fed. R. Serv. 2d 213, 1981 U.S. Dist. LEXIS 14996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/al-jundi-v-rockefeller-nywd-1981.