Everett v. USAir Group, Inc.

165 F.R.D. 1, 1995 U.S. Dist. LEXIS 20514, 1995 WL 819017
CourtDistrict Court, District of Columbia
DecidedDecember 29, 1995
DocketCivil Action No. 95-0990 (PLF)
StatusPublished
Cited by23 cases

This text of 165 F.R.D. 1 (Everett v. USAir Group, Inc.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Everett v. USAir Group, Inc., 165 F.R.D. 1, 1995 U.S. Dist. LEXIS 20514, 1995 WL 819017 (D.D.C. 1995).

Opinion

MEMORANDUM OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

This case was brought under the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. (“ERISA”), and is before the Court on Plaintiffs’ Motion to Compel, defendants’ opposition thereto, and defendants’ post-argument brief. Plaintiffs seek responses to their Interrogatory Nos. 7, 8, 10, and 14-21, and Document Request Nos. 5 and 13-15. The Court heard argument on these discovery issues on December 19,1995.

Interrogatory No. 7 seeks “a full explanation of the factual bases, including identification of all persons with knowledge of any such facts for defendants’ denial of the allegations in Paragraph 24 of the Complaint,” and the identification of “all contract agreements USAir policies or practices, federal [3]*3and state laws and regulations, constitutional provisions and any interpretations by USAir or its advisors of the foregoing that were relied on or used” with respect to defendants’ denial of the allegations in paragraph 24. Paragraph 24 of the Complaint states: “The phrases ‘investment performance of the S & P 500’ and ‘unadjusted for dividends’ are terms of art within the securities industry reflecting the understanding that the reinvestment of dividends would be included.” The Answer to the Complaint denies that these are terms of art, and defendants’ response to Interrogatory No. 7 states that defendants “believe” that those phrases mean that dividends are not included.

Interrogatory No. 8 seeks the same type of disclosure with respect to defendants’ denial of the allegations in Paragraph 25 of the Complaint that for many years after December 1972, USAr included the reinvestment of dividends in calculating the benefits available under the Pension Plan. In response, defendants assert the attorney work product privilege and refer to their answer to Interrogatory No. 6.

Interrogatory No. 10 seeks the same type of disclosure with respect to defendants’ denial of the allegations in paragraph 28 of the Complaint that in or around November 1989, USAr changed its method of calculating the Minimum Benefits under the Pension Plan. In response, defendants assert the attorney work product privilege and refer to their answer to Interrogatory No. 6.

Interrogatory Nos. 14-21 seek “the full factual bases, including the identification of any contract agreements USAr policies or practices, federal and state laws and regulations, constitutional provisions and any interpretations by USAir or its advisors of the foregoing that were relied upon” in asserting defendants’ Second through Ninth Afirmative defenses, as well as the identification of “any persons with knowledge of these facts.” In response, defendants cite generally' ERISA federal common law, ERISA case law, federal labor law and state law.

A Contention Interrogatories

Defendants characterize all these interrogatories as contention interrogatories

and argue that they are premature. Contention interrogatories generally “ask a party: to state what it contends, ... [or] to state all the facts upon which it bases a contention.” B. Braun Medical Inc. v. Abbott Laboratories, 155 F.R.D. 525, 527 (E.D.Pa.1994); see In re Convergent Technologies, 108 F.R.D. 328, 332 (N.D.Cal.1985). While such interrogatories are permitted, the obligation to respond to them is often postponed until near the end of the discovery period unless the proponent carries its burden of demonstrating why they are necessary earlier on. In re Convergent Technologies, 108 F.R.D. at 336.

Insofar as Interrogatory Nos. 7, 8, and 10 request the identification of documents or witnesses, they are not contention interrogatories. Indeed, the documents and information sought are precisely the sort of information that is to be automatically disclosed — so-called “core disclosure” — under the recent amendments to Rule 26 of the Federal Rules of Civil Procedure. See Rule 26(a)(1)(A) and (B), Fed.R.Civ.P. Had the parties not stipulated to dispense with their obligations under Rule 26(a)(1), this information would have been exchanged by now. In any event, defendants must respond to these interrogatories within 14 days from the date of this Order by identifying or producing the documents requested and by providing the names of persons with knowledge of the relevant facts. See B. Braun Medical Inc. v. Abbott Laboratories, 155 F.R.D. at 527; In re Convergent Technologies, 108 F.R.D. at 332-33. Insofar as these interrogatories call for defendants to separately articulate the underlying facts upon which they base their defenses, however, they are contention interrogatories and defendants need not respond at this time. B. Braun Medical Inc. v. Abbott Laboratories, 155 F.R.D. at 527.

With respect to Interrogatories Nos. 14-21, these are contention interrogatories and plaintiffs have not explained why responses are necessary at this early stage of discovery. In re Convergent Technologies, 108 F.R.D. at 338. Plaintiffs may submit more specific interrogatories with respect to some or all of defendants’ affirmative defenses only if they can support the need for responses at this stage of the case. As de[4]*4fendants have pointed out, their motion for summary judgment is due on January 16, 1996, and they intend at that time to provide documents and other information relating to the defenses that they contend entitle them to summary judgment. To the extent that the documents and information provided are not sufficient to enable plaintiff's to respond to defendants’ motion for summary judgment, plaintiffs can seek additional, more focused discovery under Rule 56(f), Fed. R.Civ.P., before responding on the merits to the summary judgment motion.

B. Attorney-Client Privilege and Work Product Doctrine

Defendants assert that Interrogatory Nos. 8 and 10 seek information protected by the attorney work product doctrine. They also assert that Document Request No. 5 requests information protected by the attorney-client privilege. Document Request No. 5 seeks “copies of contracts for legal services and all legal bills paid by the USAir Pension Plan Administrator (‘Defendant’) from 1970 to the present.” Defendants state that plaintiffs orally amended the request to encompass contracts and bills paid by USAir in any capacity relating to the Plan.

Plaintiffs argue that USAir cannot assert the attorney-client or work product privilege because the beneficiaries of the Pension Plan, and not USAir, are the true clients of any attorney giving advice with respect to the Plan and therefore that the privilege cannot be asserted against them. Defendants respond that “USAir has never sought legal advice related to the administration of the plan,” but only as a sponsor of the plan in its capacity as employer. Defs.’ Opp. at 9 (emphasis added). Since they only assert the privilege in their capacity as plan sponsor or employer and not as plan administrator, they argue, the attorney-client and work product privileges apply.

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Cite This Page — Counsel Stack

Bluebook (online)
165 F.R.D. 1, 1995 U.S. Dist. LEXIS 20514, 1995 WL 819017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-v-usair-group-inc-dcd-1995.