United States Securities and Exchange Commission v. Volkswagen Aktiengesellschaft

Opinion

1 2 3 6 7 UNITED STATES SECURITIES AND Case No. 19-cv-01391-CRB (JSC) EXCHANGE COMMISSION, 8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 TO COMPEL DEFENDANTS TO v. SUPPLEMENT INTERROGATORY VOLKSWAGEN 11 AKTIENGESELLSCHAFT, et al., Re: Dkt. No. 77 Defendants. 12 13 14 Pending before the Court is a discovery dispute joint letter regarding Plaintiff’s demand 15 that Defendants supplement answers to interrogatories. (Dkt. No. 77.) After carefully considering 16 the parties’ joint submission, the Court concludes that oral argument is not necessary. See N.D. 17 Cal. Civ. L.R. 7-1(b). 18 Plaintiff contends certain statements in the Bond Offering Memoranda and responses to the 19 Due Diligence Questionnaires were false and misleading. It served a second set of interrogatories 20 asking Defendants to identify the persons who “drafted, reviewed, approved or furnished” 21 information for the challenged statements. Defendants responded by identifying two or three 22 persons who were “responsible” for the sections and responses and, pursuant to Federal Rule of 23 Civil Procedure 33(d), referring Plaintiff to certain documents by bates number. Plaintiff claims 24 these responses are inadequate. The Court agrees. 25 First, stating that a person was “responsible” for a section or response does not disclose 26 whether that person drafted, reviewed, approved or furnished information for the section or 27 response. Defendants instead must answer under oath that the identified person “drafted, 1 true. See Fed. R. Civ. P. 33(b)(5). Such “requirement is critical because interrogatories serve not 2 only as a discovery device but as a means of producing admissible evidence; there is no better 3 example of an admission of a party opponent, which is admissible because it is not hearsay, than 4 an answer to an interrogatory.” Spence v. Kaur, 2020 WL 7406294, at *9 (E.D. Cal. Dec. 17, 5 2020) (cleaned up). 6 Second, Defendants’ reliance on Rule 33(d) is insufficient. The identified documents do 7 not necessarily answer which persons, if any, VW contends “drafted, reviewed, approved or 8 furnished information” for the section or response. It is not self-evident from the identified 9 documents which persons engaged in such conduct. For example, Gunnar Krause is copied on 10 certain identified emails, the direct recipient of certain identified emails, and the drafter of certain 11 identified emails. (Dkt. No. 77-3 at 28, 29, 61.) Yet, Defendants assert elsewhere that Mr. Krause 12 was not connected to any of the statements. (Dkt. No. 77-6 at 2 n.1.) This disconnect 13 demonstrates that the identified documents are subject to interpretation, and Plaintiff is entitled to 14 know how Defendants interpret whether a person mentioned in the documents “drafted, reviewed, 15 approved or furnished” information in the section or response. In other words, the identified 16 documents do not necessarily determine the answer to the interrogatories, and the burden of 17 deriving the answers is not the same for Plaintiff and Defendants because Plaintiff does not know 18 the context or background or how Defendants interpret the documents. See Fed. R. Civ. P. 33(d). 19 Third, Defendants’ responses are inadequate as they do not state whether they are aware of 20 other people who “drafted, reviewed, approved or furnished information” for the section or 21 response but are not mentioned in the identified documents. “Each interrogatory must, to the 22 extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 23 33(b)(3). Defendants have not fully answered the interrogatories. 24 That much time has passed since the challenged statements were made does not excuse 25 Defendants from answering the interrogatories. Defendants must fully answer the interrogatories 26 under oath to the best of their ability. 27 Defendants shall supplement their responses to Plaintiff’s Second Set of Interrogatories 1 This Order disposes of Docket No. 77. 3 || Dated: January 11, 2022

ol) ne 5 6 JACQUELINE SCOTT CORL United States Magistrate Judge 7 8 9 10 11 12

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