The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
This matter is before the Court on a Motion to Compel Olson Industries to Comply with Discovery and Motion for Sanctions [DE 76], filed by Defendants Jerry Moore and 3-J Machining Services, Inc. (hereinafter, "Defendants") on December 19, 2007. In its motion, Defendants contend that they served a written set of Interrogatories and Request for Production on Plaintiff on or about September 27, 2006, to which Plaintiff responded "incompletely" on May 16, 2007. (Docket No. 76, at 2). Defendants contend that counsel for the Plaintiff has failed to fully respond to the legitimate discovery requests despite numerous letters and telephone calls demanding a response. On December 27, 2007, Plaintiff Kraus Industries, Inc., d/b/a Olson Industries, Inc. (hereinafter, "Kraus") filed a Response to Motion to Compel and for Sanctions (Docket No. 79), in which Plaintiff delineates its objections to the discovery requests.
On January 9, 2008, the Court held a motion hearing on the pending motion to compel. Based on the Defendants' non-compliance with the Federal Rules of Civil Procedure as well as the Local Rules insofar as they failed to arrange a meet and confer with Plaintiff's counsel regarding the instant motion, the Court ordered the parties to do the same and to report to the Court any and all remaining discovery disputes. On January 22, 2008, the parties jointly submitted via facsimile transmission a letter to the Court reporting on the status of the discovery disputes. Specifically, the parties represented that they reached agreement as to Interrogatories 4 and 8, but that discovery disputes remained as to Interrogatories 14-18*fn1, which the Court will address below.
On January 30, 2008, Plaintiff filed a Supplemental Response to Motion to Compel and For Sanctions (Docket No. 82), in which it asserts that five (5) interrogatories remain in dispute and provided argument as to the same. On the same day, Defendants filed 3-J and Jerry Moore's Supplement to Motion to Compel and for Sanctions and Motion to Join Malone Middleman as an Additional Defendant (Docket No. 84), in which they re-assert their arguments from the original motion to compel.
On February 8, 2008, the Court held a subsequent motion hearing on the pending motion to compel, at which time the Defendants withdrew the instant motion to the extent that they seek sanctions and dismissal and thus, those issues are now moot.
Accordingly, the Court will only consider the instant motion to the extent that the Defendants seek an order from the Court compelling responses to certain discovery requests, specifically the disputes pointed out by the parties in the joint January 22, 2008 facsimile transmission, their respective supplements, and/or at the February 8, 2008 motion hearing. To the extent that Defendants raised discovery disputes in their original motion (Docket No. 76) but not in the subsequent submissions or at the February 8, 2008 motion hearing, the Court presumes that the parties have reached agreement as to the same as a result of the January 21, 2008 meet and confer.
The Court now turns to the remaining discovery disputes, as outlined by the parties.
I. Remaining Discovery Disputes
Interrogatory 14 requests the following:
Identify all contracts or projects that Olson entered into in the last 3 years with any entity that 3-J could have acted as a subcontractor and/or fabricator. A. State the names, payments and dates of payments, including any amounts presently due and owing any such sub-contractor, that Olson has made to all successful sub-contractors that are identified in Interrogatory 14.*fn2 Docket No. 77. Plaintiff asserts that the interrogatory is unintelligible and that Defendants have agreed to rephrase the same. Defendants respond that the "question was written in plain English and could not be more artfully phrased." (Docket No. 84, at 10). Defendants cite no case law in support of their argument.
At the February 8, 2008 motion hearing, counsel for the Defendants agreed to re-write Interrogatory 14 and the Court orders that Defendants shall serve the same upon the Plaintiff by February 15, 2008. Plaintiff shall respond by February 22, 2008. Accordingly, Defendants' motion to the extent that they seek an order compelling a response to Interrogatory 14 is denied as moot.
Interrogatory 15 requests the following:
Please identify all witnesses that you [Plaintiff] expect to call at trial.
A. Please provide a summary of what each prospective witness shall testify to at the time of trial.
Docket No. 77. Plaintiff asserts that it has provided a list of witnesses, except expert witnesses, but that it cannot formulate what their testimony will be. Relying on Hickman v. Taylor, 329 U.S. 495 (1947), Plaintiff contends that its opinions and expectations regarding witness testimony constitutes work product insofar as Defendants request that Plaintiff create documents regarding witness testimony. Further, Plaintiff asserts that Defendants' request for a summary of witness testimony falls outside the scope of Rule 26(b)(3) in that the Rule does not require counsel for the Plaintiffs to "create documents for opposing counsel." Defendants respond that they are entitled to know what each potential witness will testify to and further assert that summaries of witness testimony may streamline discovery and depositions. Defendants cite no case law in support of their argument.
In Marens v. Carrabba's Italian Grill, Inc., 196 F.R.D. 35 (D.Md. 2000), the Court held that defendant would not be required to answer plaintiff's interrogatory requiring defendant to summarize the substance of expected testimony of each witness it intended to call at trial, as such requirement imposed an ...