Coker v. Duke & Co.

177 F.R.D. 682, 41 Fed. R. Serv. 3d 353, 1998 U.S. Dist. LEXIS 3780, 1998 WL 138745
CourtDistrict Court, M.D. Alabama
DecidedFebruary 20, 1998
DocketCIV.A. No. 97-D-839-N
StatusPublished
Cited by23 cases

This text of 177 F.R.D. 682 (Coker v. Duke & Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coker v. Duke & Co., 177 F.R.D. 682, 41 Fed. R. Serv. 3d 353, 1998 U.S. Dist. LEXIS 3780, 1998 WL 138745 (M.D. Ala. 1998).

Opinion

ORDER

CARROLL, United States Magistrate Judge.

I. INTRODUCTION AND PROCEDURAL HISTORY

On May 27, 1997, the plaintiffs, Robert L. Coker and Tami L. Coker, filed this action against Duke & Co., Inc., Hanifen Clearing Corp., Scott D. Harris and Paul Owens. Harris was dismissed as a defendant on October 28, 1997. The plaintiffs’ complaint asserts claims for fraud, suppression, deceit, conversion, breach of fiduciary duty, violations of the Alabama Securities Act, and the Securities Act of 1934. On November 10, 1997, the plaintiffs served their First Request for Production of Documents on defendant Duke & Co. On December 18, 1997, the plaintiffs filed a motion to compel responses to Requests Nos. 7, 8, 9, 15, 16, 18, 26 & 30. A hearing was held on the motion on January 13, 1998. On January 14, 1998, the court ordered further responses from the parties.

II. DISCUSSION

THE WAIVER ISSUE

The plaintiffs contend that Duke & Co. has waived its right to object by falling to provide a written response, including objections to the Request for Production of Documents. Under the provisions of Rule 34(b) of the Federal Rules of Civil Procedure governing requests for production of documents,

The party on whom the request is served is shall serve a written response within 30 days after the service of the request____ The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, [685]*685in which event, the reasons for the objection shall be stated.

Generally, in the absence of an extension of time or good cause, the failure to file a written response in the time fixed by the rule constitutes a waiver of any objection. Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981); Krewson v. City of Quincy, 120 F.R.D. 6 (D.Mass.1988). See also In Re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) (as a general rule, when a party fails to object timely to interrogatories, production requests or other discovery efforts, objections are waived).

Duke & Co. has filed no request for extensions of time or objections. Normally, that lack of activity would constitute a waiver. In this case, however, according to the undisputed representations of counsel, Duke & Co. has not ignored the request for production of documents. Indeed, some documents have been produced and plaintiffs’ counsel were told at depositions in Montgomery that certain documents would not be produced. Counsel for Duke & Co. are cautioned that the rule plainly requires a written response and that they take a significant risk for their clients when they do not do what the rule requires. Under the circumstances of this case, however, the court finds that Duke & Co. has shown good cause for their failure to file a written response.

THE RELEVANCY STANDARD

Under the Federal Rules of Civil Procedure, parties may discover information which is relevant and non-privileged. Rule 26(b)(1), Federal Rules of Civil Procedure. Under the federal rules, relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389-90, 57 L.Ed.2d 253 (1978). Courts are required to accord discovery a broad and liberal scope in order to provide parties with information essential to the proper litigation of all relevant facts, to eliminate surprise and to promote settlement. Id.; Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Where there is a doubt over relevancy, the court should still permit discovery. Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984). However, the court may limit discovery of relevant material if it determines that the “burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Rule 26(b)(2)(iii). With these general principles in mind, the court will proceed to resolve the motion to compel.

Request Number 1 — The personnel files.

The plaintiffs seek production of the personnel files of Scott Harris, Christine Correrá, Paul Owen, and any other employee or agent of Duke & Co. who communicated with the plaintiffs. Duke & Co. correctly notes that there is a strong public policy against the discovery of personnel files. Consequently, the discovery of such files is permissible only if “(1) the material sought is ’ clearly relevant and (2) the need for discovery is compelling because the information sought is not otherwise readily obtainable.” See Cooperman v. One Bancorp, 134 F.R.D. 4 (D.Me.1991). The plaintiffs have failed to meet this burden. Their argument in support of this request makes only a general showing of relevance and no showing as to why the material which they seek is not available from other sources.

Request Number 8 — Information concerning terminated employees or employees who resigned.

The plaintiffs seek the personnel files of employees or agents of Duke & Co. who were terminated by or departed from employment with Duke & Co. at any time, including all documents relating to such departure and all documents reflecting the reason for such departure. In essence, the plaintiffs seek all information and all documents relating to anyone who has ever been discharged from Duke & Co. or who has ever simply left their employment. Again, the plaintiffs have made no showing of specific [686]*686relevance. It is certainly without doubt that discharged employees may be a fertile source for evidence. That general statement does not translate into an entitlement for the broad information which the plaintiffs seek. Plaintiffs’ request is overbroad. In addition, the plaintiffs have not made the showing necessary to require production of sensitive personnel information. Lastly, on the face of this record, the burden and expense of the production plainly outweighs its benefit. Rule 26(b)(2)(iii).

Requests Nos. 9, 15 and 16 — Lawsuits and complaints.

The plaintiffs, through Request for Production Nos. 9, 15 and 16, seek lawsuits, complaints, disciplinary proceedings and administrative claims asserted against Duke & Co. As a threshold matter, the information which the plaintiffs seek is routinely produced.

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Bluebook (online)
177 F.R.D. 682, 41 Fed. R. Serv. 3d 353, 1998 U.S. Dist. LEXIS 3780, 1998 WL 138745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coker-v-duke-co-almd-1998.