The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
Currently pending before the Court is Plaintiff's motion to compel discovery. (Doc. No. 19.) Following a telephone conference regarding the discovery dispute, the Court ordered the parties to submit letter briefs in support of their respective positions. (Doc. No. 22.) Plaintiff submitted a letter brief on December 23, 2010. (Doc. No. 23.) Defendants responded on December 30, 2010. (Doc. No. 24.) In his motion to compel discovery, Plaintiff raises issues regarding:
(1) Defendants' response to interrogatories with reference to unspecified documents;
(2) Defendants' responses referring Plaintiff to third parties;
(3)Defendants' objection to a request for the production of additional documents not produced in response to a search of the parties' agreed-upon search terms;
(4) Defendants' identification of potential witnesses; and
(5) the timeliness of Defendants' production of documents. The Court will consider these matters in turn.
I. RESPONSE TO INTERROGATORIES WITH REFERENCE TO UNSPECIFIED DOCUMENTS
Plaintiff first objects to the manner in which Defendants have responded to Plaintiff's interrogatories. Specifically, Plaintiff notes that in response to several interrogatories Defendants simply reference their responses to Plaintiff's request for documents. Defendants argue that these responses are sufficient to satisfy the requirements of Rule 34 of the Federal Rules of Civil Procedure, and therefore, Defendants need not specifically identify electronic documents that are responsive to Plaintiff's interrogatories.
Defendants are correct that Rule 34 of the Federal Rules of Civil Procedure do not require extensive indexing of information to conform to Plaintiff's requests for documents. See, e.g., Braun v. Agri-Systems, No. F-02-6482, 2006 WL 278592, at *5 (E.D. Cal. Feb. 2, 2006) (holding that Rule 34 did not require defendants to index or label some 10,000 pages of document requests to correspond with categories in the request). In the present circumstance, however, the disputed material was not sought pursuant to Rule 34. And as such, Defendants' appeals to Rule 34 are inapposite. Although Rule 33(d) of the Federal Rules of Civil Procedure permits Defendants to respond to Plaintiff's interrogatories with reference to a business record, Rule 33(d) does not serve to eviscerate Rule 33's requirement of specificity when responding to interrogatories. See, e.g., Covad Communs. Co. v. Revonet, Inc., 258 F.R.D. 17, 20 (D.D.C. 2009) (requiring party responding to an interrogatory under Rule 33(d) to "specifically identify the documents that contain the answers"); see also 7 Moore's Federal Practice, § 33.101 (Matthew Bender 3d ed.) (noting Rule 33 requires full, complete, and specific responses to interrogatories).
As the text of Rule 33(d) makes clear, when responding to an interrogatory by referring to a business record, the responding party must "specify the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could." Fed. R. Civ. P. 33(d)(1). This rule has been interpreted to require parties to guide the interrogating party to responsive documents by providing sufficient detail to enable the interrogating party to locate the documents. See In re Tutu Wells Contamination Litig., 162 F.R.D. 46, 68 (D.V.I. 1995) (holding that "dumping several volumes of unspecified raw data on opposing counsel" does not satisfy Rule 33(d)); see also Graske v. Auto-Owners Ins. Co., 647 F. Supp. 2d 1105, 1108 (D. Neb. 2009); O'Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 278 (C.D. Cal. 1999); Fed. R. Civ. P. 33 advisory committee's notes to 1980 amendment (noting that "directing the interrogating party to a mass of business records or by offering to make all of their records available . . . [is] an abuse of" Rule 33(d)); 7 Moore's Federal Practice, § 33.105 (Matthew Bender 3d ed.). Therefore, Defendants are directed to respond to the interrogatories with either an objection, written answer, or specific direction to the relevant document or documents as provided by Rule 33 within 10 days of the date of this order.
II. RESPONSES REFERRING PLAINTIFF TO THIRD PARTIES
Plaintiff next brings Defendants' objections to certain interrogatories on the basis that Plaintiff is seeking information in the possession of third parties to the Court's attention. ...