The opinion of the court was delivered by: David R. Strawbridge, Usmj
Before the Court, and resolved by our order of May 25, 21012 (Doc. 179), are the "Motion for Sanctions" (Doc. No. 136) ("Sanctions Mot.") and "Motion for Protective Order Concerning Plaintiff's Rule 30(b)(6) Deposition Notice" (Doc. No. 137) ("Mot. Protect.") filed by General Electric Company ("GE"). The motion for protective order has been granted and Plaintiff's April 18, 2012 Fed. R. Civ. P. 30(b)(6) deposition notice has been quashed. However, pursuant to the parties' earlier agreement and our February 17, 2012 order, GE shall produce a turbine witness pursuant to the parties' agreement under the original November 14, 2011 deposition notice. (See 01-MD-875, Doc. No. 8453.) Further, the motion for sanctions has been granted, and the unverified "supplemental" interrogatory answers, which are the subject of that motion, have been struck. By this memorandum, we now set out our explanation for the issuance of the May 25, 2012 order. I FACTUAL AND PROCEDURAL HISTORY
This case is one of approximately 630 cases remaining in MDL-875 in which Cascino Vaughan Law Offices ("CVLO") is acting as plaintiffs' counsel. It was referred to us by Judge Robreno on June 9, 2011. Mr. Unzicker was a career pipe fitter who testified that he worked on or around GE motors and controllers but could not say with particularity when or where he did so. (Mot. Protect., Exh. A, pp. 10-11, 14.) He alleges that exposure to GE and other asbestos containing products caused his lung cancer and non-malignant asbestos disease. (Sanctions Mot., Exh. A., Answer 3.)During discovery, he provided verified answers to GE's interrogatories (signed on September 14, 2011.) (Sanctions Mot., Exh. A.) He sat for deposition on October 4, 2011. (Id., Exh. B.) In this discovery, he stated that he had never filed a lawsuit other than the current one and denied knowledge of any statements which were relevant to this current lawsuit.*fn1 (Id., Exh. A, Answers 14 & 29.) He failed to identify any co-workers in his answers (Id., Answer 20), and identified fewer than ten by name at his deposition.*fn2 (Id., Exh. B., pp. 7-11.) He also disclosed ten relevant jobsites in his verified interrogatories. (Id., Exh. A, Answers 17 & 18.)*fn3
On November 14, 2011, CVLO noticed the deposition of a "turbine witness" to discuss GE's land-based steam turbines at the relevant jobsites pursuant to Fed. R. Civ. P. 30(b)(6.) (Mot. Protect. Ex I.) GE objected to the notice claiming, inter alia, that the topics in the notice were overly broad and that there was no evidence that Mr. Unzicker had ever worked around any GE products. (Id., Exh. J.) CVLO then filed a motion to compel. (01-MDL-875 Doc. No. 8435.) We denied the motion after being advised by the parties that they had reached a compromise and agreed to proceed with the deposition. (01-MD-875, Doc. No. 8453.) The deposition was scheduled for April 10, 2012. (Id.) On March 22, 2012, for reasons that are not clear to us, CVLO tendered a revised Rule 30(b)(6) notice, which greatly expanded the scope of the original notice. (Mot. Protect., Exh. M.) GE again objected based, inter alia, on its scope, lack of particularity, and lack of relevance to Mr. Unzicker's case. (Id., Exh. N.) GE did not, however, cancel the April 10, 2012 deposition. Regrettably, that deposition did not go forward on April 10, 2012 as Mr. McCoy, CVLO counsel, was late in arriving and GE, after a failed attempt to reach him by telephone, left the deposition site. After the court intervened, the parties rescheduled the deposition for April 25, 2012, agreeing that it could be completed after the April 20, 2012 close of fact discovery.
On April 18, 2012,*fn4 two days before the close of
discovery, CVLO served upon GE unverified "supplemental" answers to
GE's interrogatories. (Sanctions Mot., Exh. C1, p. 14.)*fn5
These unverified answers, for the first time, identified,
inter alia: (1) a list of approximately 180 deposition transcripts
allegedly containing statements relevant to Mr. Unzicker's
case*fn6 ; (2) the names and addresses of over 800 new
co-worker witnesses*fn7 ; and (3) 17 new jobsites where
Mr. Unzicker claims that he may have
been exposed to asbestos containing GE products.*fn8
(See Sanctions Mot., Exh. C1.) Further, while the "supplemental"
answers, like the original verified answers, provided that Mr.
Unzicker had not filed any other lawsuit other than the current suit.
(Sanctions Mot., Exh. C1, Answer 14.) A transcript of Mr. Unzicker's
deposition from his l988 lawsuit was attached to the "supplemental"
answers. (Sanctions Mot., Exh. C3.)
On April 18, 2012, CVLO also served upon GE a new Rule 30(b)(6) deposition notice for the April 25, 2012 deposition. (Mot. Protect., Exh. C.) It was materially identical to the March 22, 2012 notice. (Id. See also Exh. M.) It is this notice that is the subject of this motion for protective order. After GE received the unverified "supplemental" interrogatory answers, it objected to the notice, withdrew its agreement to proffer a Rule 30(b)(6) turbine witness (Id., Exh. O.) and, on April 20, 2012, filed the current motions for sanctions and a protective order. (Sanctions Mot., Mot. Protect.) Mr. Unzicker filed his combined response to both motions on April 30, 2012 (Doc. No. 143), and GE filed its reply on May 3, 2012. (Doc. No. 149.)
In response to GE's Motion, CVLO argues that the service of Mr. Unzicker's expanded and unverified "supplemental" interrogatory answers two days before the end of discovery was timely under Fed. R. Civ. P. 26(e) given that it was served before the end of discovery.*fn9 While acknowledging the importance of keeping to the discovery deadlines in advancing this argument, CVLO fails to acknowledge that the supplemental answers it served were unverified,contrary to the clear requirement of Fed. R. Civ. P. 33(b)(3) which states that "[e]ach interrogatory must . . . be answered . . . fully in writing under oath." Fed. R. Civ. P. 33(b)(3) (emphasis added.) This fundamental proposition is embodied in the August 4, 2011 Deposition Protocol which had been rigorously negotiated by the parties and ordered by the court to apply to all CVLO MDL-875 cases. (08-90330, Doc. No. 87, Exh. A.)*fn10 It is for this reason that we struck these unverified "supplemental" interrogatory answers.*fn11
In Bracey v. Grenoble, 494 F.2d 566 (3rd Cir. 1974), the district court concluded, after a non-jury trial, that the defendant, Major Grenoble, was liable for the beating of the prison inmate plaintiff given that he was in charge of the prison guards who where involved in the actual assault. Id. at 569. The Third Circuit reversed the district court's decision finding that the plaintiff had failed to establish that Grenoble had actual knowledge of and acquiesced in the unlawful acts of his subordinates. Id. at 570-72. While we recognize that this case arises out of a factual scenario quite distinct from our case, its secondary holding is of significance here. Citing Fed. R. Civ. P. 33(a), the predecessor to Rule 33(b)(3), the Third Circuit held, as an independently sufficient basis for its ruling, that the district court improperly relied upon Grenoble's unverified interrogatory responses. Id. at 570, n.7. See also U.S. v. $39,557.00, More or Less, in U.S. Currency, 683 F. Supp.2d 335, 340-341 (D.N.J. 2010) (concluding that a party's lack of compliance with Rule 33(b)(3) by, inter alia, failing to sign interrogatory answers, was sufficient grounds to strike its claim); Villareal v. El Chile, Inc., 266 F.R.D. 207, 211 (N.D. Ill. 2010) (acknowledging that "[r]equiring a party to sign interrogatory responses under oath serves the critical purpose of ensuring that the responding party attests to the truth of the responses"); Tokarz v. TRG Columbus Development Venture, Ltd., 08-60190, 2008 WL 4533917, at *2 (S.D. Fla. Oct. 6, 2008) (holding that by failing to sign interrogatory answers, the party was "deemed to have not responded at all" ); Overton v. City of Harvey, 29 F. Supp.2d 894, 901 (N.D. Ill. 1998) (striking as a summary judgment exhibit plaintiff's unverified answers to interrogatories signed only by the attorney); Cabales v. U.S., 51 F.R.D. 498, 499 (S.D.N.Y. 1970) (finding that unsigned, unverified interrogatory answers did not qualify as answers at all.)*fn12 Mr. Unzicker has not satisfied us that we should deviate from the protocol or this clear authority.
Having rested our determination of this motion upon Plaintiff's failure to comply with Fed. R. Civ. P. 33(b)(3), we choose to take the opportunity to address the question of prejudice raised by GE. Fed. R. Civ. P. 37(c) provides that a party who, inter alia, fails to timely supplement an earlier response "is not allowed to use that information or witness to supply evidence . . . unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1.) CVLO claims that their supplementation was timely simply because it was served before the end of discovery. Under the circumstances of this supplementation, we disagree.
This case was originally filed in the U.S. District Court for the Southern District of Illinois on March 21, 2011 (3:11-cv-00224, Doc. No. 13 (S.D. Il.).) ("Complaint"). By this filing, counsel has certified to the court, pursuant to Fed. R. Civ. P. 11(b)(3), that "to the best of the [Plaintiff's] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." (emphasis added.) The Rule then requires the plaintiff and/or his counsel to have sufficiently investigated the supporting facts relating to his claim and to certify "after an inquiry reasonable under the circumstances" that those facts provide evidentiary support for the claim or if "specifically so identified" that the factual contentions will have support "after the reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11(b)(3).
A review of Plaintiff's Complaint provides in its "General Allegations" that Mr. Unzicker worked "as a pipe fitter at various job sites" and "was exposed to asbestos dust or fibers emanating from the asbestos products and/or asbestos insulated equipment which was sold, manufactured, mined, distributed, packaged, installed or otherwise placed into commerce by defendants [including GE]." (See Complaint, p. 2, ¶6.)
The Complaint fails to identify, however, any specific GE products around which he worked and only makes broad, general reference to locations where he worked and times when he may have worked at those locations. These shortcomings raise significant questions about whether Mr. Unzicker has the evidentiary support necessary to show a causal relationship between GE products and his disease condition. It was under this circumstance ...