ECHON v. SACKETT

DISCOVERY ORDER

NINA Y. WANG, Magistrate Judge.

This civil action comes before the court on Plaintiffs' Third Motion to Compel Discovery and Sanctions [#64], filed on February 23, 2016, by Plaintiffs Esmeraldo Villanueva Echon, Jr., Maribel Echon, and Justin Echon (collectively, "Plaintiffs" or "the Echons"). This motion was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), the Amended Order Referring Case dated August 28, 2015 [#46], and the memorandum dated February 24, 2016 [#66]. On March 7, 2016, Defendants William J. Sackett and Leonida Sackett ("Defendants" or "the Sacketts") filed a response docketed as a letter [#68], indicating that they had provided all the information as requested by Plaintiffs, except for the immigration information because "[i]t will cause great damage to Jeffery's two sons that want to come to the United States." [Id. at 1]. On that same date, Defendants filed a document entitled "To Withdraw Offer," which indicates that he paid the mortgage on John Echon's home and land. [#67]. The following day, Defendants filed a document entitled "Request for Production," which appears to be their responses to written discovery. [#69]. On May 10, Defendants filed a document entitled "Question #8 on Discovery," presumably responding to Interrogatory No. 8, which inquires about the financial support provided to Plaintiffs or Jeffrey Echon, a nonparty to this action. [#70]. Because of Defendants' pro se status, this court construes Defendants' multiple filings on March 7-10 [#67, #68, #69, #70], as a multi-part response to Plaintiffs' Motion to Compel. Plaintiffs have not filed a Reply, and this court finds that oral argument would not materially assist in the disposition of Plaintiffs' Third Motion to Compel.

BACKGROUND

Plaintiffs initiated this action on December 18, 2014 by filing a Complaint asserting the following claims: (1) violation of the Trafficking Victims Protection Reauthorization Act ("TVPRA"); (2) violation of the Fair Labor Standards Act ("FLSA"); (3) violation of the Colorado Minimum Wage of Workers; (4) violation of the Colorado Wage Claim Act; (5) Breach of Contract; (6) Breach of Contract—Third Party Beneficiary Claim; and (7) Unjust Enrichment. [#1]. Plaintiffs allege that Defendants, who operate several businesses and manage a farm in Rocky Ford, Colorado, held them in "debt bondage, requiring them to work on their crops and in their market, clean and maintain their rental properties, and perform various other jobs from 2011-2014," without pay. [#1 at ¶ 2]. Defendants, who are proceeding pro se, filed an Answer on March 18, 2015. [#11]. After the entry of the Scheduling Order in this case on April 23, 2015, the Parties proceeded with discovery.

The discovery process, which has now lasted an entire year, has been arduous. This court has held multiple informal and formal conferences to address Defendants' discovery responses, and has ruled on two Motions to Compel. See [#52, #62]. Most recently, this court ordered Defendants to respond to Interrogatories 1 (as limited) — 5, 7-16, and Requests for Production Nos. 2-4, 6, 8, 10, and 11. See [#62].

ANALYSIS

I. Applicable Law

A. Rule 37(a) & Rule 37(b)

Rule 37(a) provides that a party may move for an order compelling disclosure or discovery after the party has conferred or made a good faith effort to confer with the non-disclosing party. Fed. R. Civ. P. 37(a). This Rule applies where a party has not disclosed any information, or has disclosed evasive or incomplete answers. Id.

B. Rule 37(b)

Plaintiffs also move for sanctions as the court deems appropriate pursuant to Rule 37(b). Rule 37(b)(2) provides that a court may sanction a party for failing to obey a court order to provide or permit discovery, which may include both monetary and non-monetary penalties. Fed. R. Civ. P. 37(b)(2). The Rule further provides that instead of, or in addition to, other sanctions delineated, the court may order "the disobedient party . . . pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C).

II. Interrogatories

This court's prior Order compelled Plaintiffs to respond to Interrogatories 1 (as limited) — 5, 7-16. [#62]. Plaintiffs assert that "Defendants continued to provide no response to Plaintiffs' Interrogatories." [#64 at 5]. In their letter filed on March 7, 2016, Defendants indicate that both have been deposed, and that they "think that is enough questions." [#68]. There is no indication that Defendants have responded to the interrogatories to date.

While this court is cognizant that Defendants perceive Plaintiffs' interrogatory requests as invasive and that Defendants are proceeding pro se, discovery plays an important role in the United States' adversarial system, and allows parties to develop the facts surrounding a matter in a "quest for truth." See Fed. Deposit Ins. Corp. v. Daily, 973 F.2d 1525, 1529-30 (10th Cir.1991). Nothing in the record before the court excuses Defendants from responding to properly propounded interrogatories. In considering the prior motions to compel and during informal discovery conferences, this court evaluated the propounded interrogatories and limited them how it deemed necessary. [#62]. The remaining requests appear to be reasonable, and Defendants have articulated no burden in responding to them, other than the fact that they have also had to sit for depositions.

It is long standing and well-settled that methods of discovery are complementary, rather than alternative or exclusive. See Gonzales v. City of Albuquerque, No. CIV 09-0520 JB/RLP, 2010 WL 553308, at *8 (D.N.M. Feb. 9, 2010); Stonybrook Tenants Ass'n, Inc. v. Alpert, 29 F.R.D. 165, 167 (D. Conn. 1961). A party may take both depositions and interrogatories, in any sequence. Fed. R. Civ. P. 26(d)(3). The burden is on the objecting party to show that a hardship or injustice will be caused by the use of successive methods of discovery. Here, Defendants have made no such showing, and the court cannot independently discern any from the record before it.

This court specifically advised Defendants that failure to appropriately respond to the Interrogatories as limited by the court's Order would lead to sanctions, including but not limited to attorney's fees. See [#62 at 8]. Plaintiffs' counsel then advised Defendants of the court's Order again, by correspondence dated February 11, 2016, prior to the filing of this instant Third Motion to Compel. Notwithstanding the foregoing, Defendants have continued to refuse to respond to the outstanding Interrogatories, despite the court's continued warnings and Defendants' repeated assurances to the court that they would comply with the discovery requests. Accordingly, this court is left no choice but to sanction Defendants for their unjustified refusal to respond to the pending Interrogatories. However, Plaintiffs have failed to identify or argue what sanctions are appropriate in these circumstances, and beyond the reasonable expenses associated with this instant Third Motion to Compel, including attorney's fees, as contemplated by Rule 37(b)(2)(C), this court is disinclined to make Plaintiffs' arguments for them.

III. Requests for Production

Plaintiffs concede that some responsive documents have been produced by Defendants but continue to argue that Defendants' production is deficient with respect to Requests for Production No. 2-4, 6, 8, 10, and 11. With respect to these Requests, except for Request for Production No. 10, Plaintiffs argue that Defendants have not produced any responsive documents at all, see, e.g., [#64 at 8 (Request for Production No. 2)], or they have not produced sufficient responses to ascertain the information that Plaintiffs seek, see, e.g., [#64 at 9 (Request for Production No. 6)]. In response, Defendants contend that they have "sent it all," [#69 at 4], and that certain responsive information "burned in fire." [#69 at 5]. As this court has previously held, it cannot compel documents that Defendants insist do not exist. See Smith v. Pizza Hut, Inc., No. 09-CV-01632-CMA-BNB, 2013 WL 1751850, at *3 (D. Colo. Apr. 23, 2013). There is no indication in the record that the requested documents do exist, and to the extent they exist but are not properly disclosed through discovery, Defendants will likely be precluded from using them to support their defenses. See Fed. R. Civ. P. 37(b)(2)(A)(ii).

The one document request that merits further discussion is Request for Production No. 10, which seeks documents prepared or submitted to the United States Government to support Plaintiffs' applications for legal permanent residency, including Form I-864, Affidavit of Support filed with the United States Citizenship and Immigration Services ("USCIS"). [#64 at 10; #64-1 at 9]. In their Responses to the Requests for Production, Defendants state that they do not have Form I-864. [#69 at 5]. Plaintiffs argue that Defendants refuse to execute a fully prepared Freedom of Information Act ("FOIA") release, and, to the extent Plaintiffs would seek the information directly, the relevant information would be redacted. [#64 at 10]. Although not expressly articulated, Plaintiffs appear to request the court to compel Defendants to execute the FOIA release.

Rule 34 requires a party to produce documents over which they have "possession, custody, or control." See Fed. R. Civ. P. 34(a). Defendants have asserted that they do not have any responsive documents within their possession or custody; the remaining issue is whether Defendants may be compelled to execute a release, presumably based on the documents at issue being under their "control." Rule 34 does not expressly authorize a court to order a party to sign a release concerning any kind of record. EEOC v. Thorman & Wright Corp., 243 F.R.D. 426, 428 (D. Kan. 2007); Bouchard v. Whetstone, No. 09-CV-01884-REB-BNB, 2010 WL 1435484, at *1 (D. Colo. Apr. 9, 2010). And, "even courts that compel authorizations from the plaintiff typically require the defendant first to seek the documents directly from the third party who has custody of the documents." Miller v. Kastelic, No. CIV.A. 12-CV-02677, 2013 WL 4431102, at *2 (D. Colo. Aug. 16, 2013).

There is no evidence before the court that Plaintiffs have requested the immigration documents from USCIS through FOIA or through a subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure, or that any disclosure by USCIS would necessarily reflect redactions.

CONCLUSION

For the reasons set forth herein, IT IS ORDERED that:

(1) Plaintiffs' Third Motion to Compel Discovery [#64] is GRANTED IN PART and DENIED IN PART;

(2) The Motion is GRANTED as to the Interrogatory Responses and Defendants are COMPELLED to respond to the outstanding interrogatories fully, in narrative form, no later than May 16, 2016 and Defendants MUST PAY the portion (but in any case, no more than fifty percent (50%)) of the reasonable expenses associated with this instant Motion to Compel attributable to the deficient interrogatory responses, to be determined by a forthcoming motion for reasonable expenses to be filed by Plaintiffs no later than May 16, 2016;

(3) The Motion is DENIED as to the Requests for Production.

Paul Livingston, Placitas, NM, for Plaintiffs.

Robert M. White, City Attorney, Michael I. Garcia, City of Albuquerque Legal Department, City of Albuquerque, Albuquerque, NM, and Edward W. Bergmann, Seyfarth Shaw, LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

*1 THIS MATTER comes before the Court on the Plaintiffs' Motion and Memorandum to Compel Discovery and for Sanctions, filed December 1, 2009 (Doc. 23). The Court held a hearing on January 20, 2010. The primary issues are: (i) whether the Court should compel Defendants Ed Adams, Esther Tenenbaum, and the City of Albuquerque to provide the Plaintiffs with supplemental answers to Interrogatories Nos. 1, 2, 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 15, and 16; (ii) whether the Court should compel the Defendants to provide supplemental responses to the Plaintiffs' Requests for Production of Documents; and (iii) whether the Court should award sanctions to the Plaintiffs in the amount of their attorney's time and fees expended in presenting and prosecuting this motion. Because the Court finds that the Plaintiffs have requested relevant information, and because the Court finds that the requests are not vague, ambiguous, overbroad, or unduly burdensome, the Court will grant the motion to compel as to Interrogatories Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, and 16, and as to Requests for Production Nos. 1-5. The Court will deny the motion to compel as to Interrogatory No. 4 because the Defendants have already provided a satisfactory answer. The Court will also award the Plaintiff a portion of the fees incurred in preparing and prosecuting the motion to compel.

FACTUAL BACKGROUND

The Plaintiffs were permanent, full-time employees of the City of Albuquerque's 311 Citizen Contact Center ("311-CCC") who were terminated from their positions without notice, hearings, or reasons for their terminations. See Motion at 1. The Plaintiff contends that the City of Albuquerque considered the 311-CCC operators and supervisors as unclassified employees who are not entitled to notice, hearings, or reasons for termination. See Complaint of Violations of Statutory and Constitutional Law ¶¶ 9, 34 at 3, 9, filed May 27, 2009 (Doc. 1-2). The Plaintiffs have brought this action against the City of Albuquerque, Adams, and Tenebaum alleging claims for breach of contract, due-process and equal-protection violations, wrongful termination, Family and Medical Leave Act violations, and Fair Labor Standards Act violations. See Complaint ¶¶ 27-47, at 7-11.

PROCEDURAL BACKGROUND

On October 3, 2009, the Plaintiffs' counsel delivered to the Defendants' counsel a set of interrogatories and requests for production. See Motion at 1. The Defendants' responses were mailed and electronically-mailed to Plaintiffs' counsel on November 10, 2009. See Motion at 2. The Defendants responded with general objections to all the Plaintiffs' interrogatories, asserting privilege, that the interrogatories are vague, ambiguous, unduly burdensome, and/or not reasonably calculated to lead to the discovery of admissible evidence, that the Defendants do not have the documents in their custody or control, and that a comprehensive search of the Defendants' electronically stored information would be too burdensome. See Defendants' Answers to Plaintiffs' Class Action Interrogatories at 1-2, filed December 1, 2009 (Doc. 23-2). On November 19, 2009, the parties held a telephone conference to address the discovery requests and to resolve their disputes. See Motion at 2. The Defendants agreed to supplement their responses but refused to withdraw the general objections. See Motion at 2; Defendants' Opposition to Plaintiffs' Motion to Compel Discovery and for Sanctions at 2, filed December 15, 2009 (Doc. 29). Supplementation did not occur before the Plaintiffs filed their motion to compel on December 1, 2009.

*2 The day after the Plaintiffs filed their motion to compel, the Defendants provided the Plaintiffs with a supplemental response to the interrogatories, which waived all of the general objections in the original answer, except the objection based on privilege, see Defendants' Supplemental Answers to Plaintiffs' Class Action Interrogatories at 1, filed December 15, 2009 (Doc. 29-2), and a supplemental response to the requests for production, which waived the same non-privilege general objections, see Defendants' Supplemental Response to Plaintiffs' Class Action Requests for Production of Documents at 2, filed December 15, 2009 (Doc. 29-3). In the Defendants' response to this motion, they also assert that, in addition to their agreement to supplement, the Plaintiffs also agreed to revise some of the interrogatories and that the Plaintiffs have not done so. See Response at 2. The Defendants's counsel sent an electronic-mail message to the Plaintiffs' counsel on December 8, 2009, stating: "We should also discuss where we are at relative to the motion to compel following our supplemental responses which we had advised you would be delayed." Response Exhibit C at 2, filed December 15, 2009 (Doc. 29-4). At the time of the Defendants' response to this motion, the Plaintiffs had not responded to the electronic-mail message. See Response at 3. On December 11, 2009, the Defendants made another supplemental production of documents to the Plaintiffs. See Response Exhibit D (Doc. 29-5). The Defendants argue that the Plaintiffs' motion to compel was premature, because it was filed without giving the Defendants sufficient time to provide supplemental responses. See Response at 3.1 The Defendants also argue that sanctions are inappropriate because the Plaintiffs filed the motion to compel prematurely. See Motion at 29.

In their reply, the Plaintiffs contend that they timely submitted their motion to compel and that, although the Defendants submitted supplemental responses, those responses "added little or nothing to their initial insubstantial content." Plaintiffs' Reply to Defendants' Opposition to Motion to Compel Discovery and for Sanctions at 1-2, filed January 8, 2010 (Doc. 31). According to the Plaintiffs, they did not know the Defendants had withdrawn their general objections until December 15, 2009. See Reply at 6.2

ANALYSIS

The Plaintiffs have moved the Court to compel the Defendants to respond to their interrogatories and to their requests for production. The Defendants have asserted objections, stated that they will produce a supplement but have not, and argue that there has not been enough time to be responsive. The Court believes that the Defendants have had sufficient time to produce answers and some production to the Plaintiffs, and will therefore order the Defendants to respond as set forth in this opinion. The Court will also award the Plaintiffs a portion of the fees incurred.

I. THE PARTIES MUST ENTER INTO A PROTECTIVE ORDER.

*3 The Defendants have objected that some of the information sought in the Plaintiffs' discovery requests is private information. The parties have not yet entered or filed a Confidentiality Order with the Court. The Court, therefore, orders that the parties must negotiate and enter into a Confidentiality Order within ten days of this Order. If the parties cannot reach an agreement on the terms of the Confidentiality Order, the parties may seek assistance from the Court by submitting competing forms, identifying precisely and clearly what is in dispute.3

II. THE COURT OVERRULES THE DEFENDANTS' OBJECTIONS TO THE PLAINTIFFS' INTERROGATORIES AND REQUESTS FOR PRODUCTION, AND ORDERS SIGNED VERIFICATIONS.

In their supplemental answers, the Defendants state "Defendants withdraw the General Objections contained in their November 10, 2009 Answers, except that they do not withdraw General Objection No. 1 as to privilege." Defendants' Supplemental Answers to Plaintiffs' Class Action Interrogatories at 1; Defendants' Supplemental Responses to Plaintiffs' Class Action Requests for Production of Documents at 1. In reply, the Plaintiffs argue that it is unclear whether the Defendants withdrew only their general objections, asserted in the introductory section of their original answers, or whether all objections were withdrawn. See Reply at 6.

To the extent that any objections asserting that the Interrogatories or Requests for Production are vague, ambiguous, overbroad, or unduly burdensome were not withdrawn by the Defendants in their supplemental answers, the Court overrules those objections. The Court finds that the Plaintiffs' requests are narrowly tailored to the issues in this case and are sufficiently clear to permit the Defendants to respond appropriately.

The Defendants retained an objection to privilege. The Court orders that, to the extent that the Defendants can answer the Plaintiffs' interrogatories and produce documents responsive to the requests for production without violating attorney-client privilege or the work-product-doctrine, the Defendants must do so. If there are documents that are responsive to the Plaintiffs' requests for production, the Defendants must create a privilege log in which they describe the documents, any persons identified in the documents, the relevant dates, the relevant Bates-numbers, and the privilege invoked.

The Court also orders that the supplemental answers to the Plaintiffs' interrogatories and requests for production, which the Court will order the Defendants to produce in this opinion, must be accompanied by a signed verification by the Defendants, representing that the answers were given by a representative of the Defendants and were under oath.

III. THE COURT WILL COMPEL THE DEFENDANTS TO PRODUCE SUPPLEMENTAL ANSWERS TO INTERROGATORIES NOS. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, AND 16.

The Plaintiffs urge the Court to compel the Defendants to respond fully to their interrogatories. The Court has reviewed the supplemental responses that the Defendants provided to the Plaintiffs' interrogatories. The Court finds that the Defendants have not sufficiently responded to many of the interrogatories that the Plaintiffs contend are in dispute. The Court, therefore, will require the Defendants to provide supplemental answers, under oath, to Interrogatories Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, and 16 within ten days of this Order.

A. INTERROGATORIES NO. 1 AND NO. 2.

*4 Interrogatory No. 1 requests the identity of all terminated 311-CCC employees between 2004 and the present, the dates of termination, and the reasons for termination. Interrogatory No. 2 requests the addresses and telephone numbers of the individuals identified in Interrogatory No. 1. The original answer to Interrogatory No. 1 provided by the Defendants states: "Attached hereto is a list of employees involuntarily terminated from the 311 Citizen Contact Center from its inception to the present with the name and address of the person, the date of termination, and reason for termination." Defendants' Answer to Plaintiffs' Class Action Interrogatories at 3, filed December 1, 2009 (Doc. 23-2). The chart attached contains names, employment status (terminated or resigned), the hire date, and the last day of employment. See Doc. 23-3 at 1. A second attachment lists stated reasons for termination of employment with three different entries: (i) services no longer needed; (ii) unknown; and (iii) N/A. See Doc. 23-3 at 2. In the Defendants' supplemental answer, the Defendants provided one additional name. In the original answer to Interrogatory No. 2, the Defendants objected to providing the telephone numbers based on privacy. In the supplemental answer, the Defendants stated that they would provide a list of telephone numbers, subject to a protective order, only if "counsel for Plaintiffs cannot obtain [the telephone numbers] through other means after a reasonable attempt to do so." See Supplemental Answers at 3.

At the hearing, Paul Livingston, the Plaintiffs' attorney, stated that the Defendants still have not provided the addresses requested in Interrogatory No. 1. Mr. Livingston also expressed dissatisfaction with one of the reasons given for termination — "services no longer needed." Mr. Livingston stated that he learned from a deposition with Tenenbaum that there are various reasons for termination, which include a progressive discipline scheme and terminations for specific given reasons. Mr. Livingston argued, therefore, that the answers to Interrogatory No. 1 do not reflect the knowledge of the Defendants regarding the reasons for termination.

Edward W. Bergmann, the Defendants' counsel, stated that his co-counsel, Michael I. Garcia, provided the addresses to the Plaintiffs via an electronic-mail transmission sent on November 19, 2009, which included an attached chart which included addresses and reasons. Mr. Bergmann also stated that the reason that 311-CCC gives to terminated employees is "your services are no longer needed" and therefore the response the Defendants gave to the request for the reason for termination was sufficient. Mr. Bergmann also stated that Mr. Livingston made representations to him during the November 19, 2009 telephonic conference that Mr. Livingston would find the telephone numbers through an internet search or telephone book. Mr. Livingston responded that the list that he was electronically mailed does not contain addresses.

*5 The Court orders that the Defendants provide an amended answer to Interrogatory No. 1 which in the answer, and not in an attachment or chart, provides the addresses of the identified terminated employees and the reasons for termination. The amended answer must be under oath and must state the information in the Defendants' knowledge. The Court also orders that the Defendants must provide a supplemental response to Interrogatory No. 2, which gives the telephone numbers of the terminated employees identified in Interrogatory No. 1. The Court notes that the Defendants may cover this information under the Confidentiality Order, which the Court has ordered the parties to put in place.

B. INTERROGATORY NO. 3.

Interrogatory No. 3 seeks the identity of every employee or former employee of 311-CCC who was told that his or her "services are no longer needed," as well as the date the employee was told this statement and by whom he or she was told. The Defendants' original answer objected to Interrogatory No. 3 as vague, ambiguous, overbroad, and unduly burdensome. In their supplemental answer, the Defendants stated that no further reason other than "services no longer needed" or "unknown" is stated in the 311-CCC records, and that current management does not have a present recollection of the reasons for termination given to those individuals where the reason is listed as unknown. At the hearing, Mr. Bergmann stated that there may not be information in Defendants files stating more information. He also indicated that the Defendants have already provided a chart showing who was told their services were no longer needed and who conducted the dismissal. Mr. Livingston responded that the Defendants have had several months to determine whether there is information in the files and argued that the Defendants have still not responded to Interrogatory No. 3 appropriately. He contends that listing several persons responsible for dismissal does not answer the question of who told the terminated employee that his or her services would no longer be needed.

The Court does not believe that the request is vague, ambiguous, or overbroad, and therefore overrules those objections. The Court notes that it appears from the attachments to the Plaintiffs' motion to compel that the Defendants provided a chart listing those persons told that their services were no longer needed, the date of termination, and by whom. See Doc. 23-3. The Court, however, orders that the Defendants must provide a supplementation to Interrogatory No. 3, which takes the information from the chart and puts it into a responsive answer, stated under oath, and signed by a representative of the Defendants. The supplemental answer must also give the date that the identified employees were told the phrase "your services are no longer needed," and identify the person that said it to the particular terminated employee. If the statement was made by more than one person, the Defendants may identify all such individuals. If the Defendants do not know the date or the person who told the terminated employee that his or her services were no longer needed, the Defendants must state that fact, under oath, in the supplemental answer.

C. INTERROGATORIES NO. 5 AND NO. 11.

*6 Interrogatory No. 5 seeks information regarding 311-CCC employees terminated because of a disciplinary infraction. The interrogatory requests a statement of the infraction and a description of the process, if any, the employee was afforded before termination. The Defendants' original answer objected to Interrogatory No. 5 on the grounds that it was not reasonably calculated to lead to the discovery of admissible evidence as to unclassified at-will employees who have no right to any process or hearing. In the Defendants' supplemental response, they stated: "The City with investigate the Center personnel files of involuntarily terminated employees relative to information concerning performance issues and following that investigation further supplement this answer as appropriate." Supplemental Answers at 5. The Plaintiffs' reply indicated that no further supplement has been provided. See Reply at 3.

Interrogatory No. 11 requests that the Defendants identify the person or persons who made the decision to terminate the City of Albuquerque 311-CCC employees, and requests the reasons each of the Plaintiffs were terminated, including the identification of policies, procedures, allegations, and other factors supporting termination. The Defendants' original answer objected to Interrogatory No. 11 as not reasonably calculated to lead to discovery of admissible evidence because the Plaintiffs were at-will unclassified employees. In the Defendants' supplemental answer, they responded: "See Supplemental Answer to Interrogatory No. 5." At the hearing, Mr. Bergmann stated that the Defendants are looking into the request and conceded that some employees were terminated for disciplinary reasons. Mr. Livingston argues that months have passed and that the Defendants' lack of response has become untimely.

The Court believes that Interrogatories Nos. 5 and 11 seek relevant information that may lead to admissible evidence, and therefore overrules the Defendants' initial objections. The Court orders that the Defendants produce supplemental answers to Interrogatory No. 5 and Interrogatory No. 11 within ten days of this Order. At that time, the Defendants must provide the information that they have about the employees who were terminated because of a disciplinary violation, and identify those employees to the Plaintiffs. The Defendants must also identify who terminated the employees and the reasoning for doing so, as well as any policies, procedures, allegations, or other factors supporting the termination decisions. The Defendants may continue to supplement their response as they continue to investigate.

D. INTERROGATORY NO. 6.

Interrogatory No. 6 requests identification of all temporary, seasonal, part-time, or contract employees of 311-CCC since its inception, including the dates of employment, position, job title, and last rate of pay. The Defendants' original answer objected to Interrogatory No. 6 as not reasonably calculated to lead to discovery of admissible evidence because the case does not involve employees who were not employed in a regular capacity. In the Defendants' supplemental response, they stated: "Occasionally temporary employees are used to supplement existing staff as needed. The only contract employees would be agency employees secured through a contract with the agency. There are no part-time employees working less than twenty hours a week." Supplemental Answer at 6. In their reply, the Plaintiffs argued that Interrogatory No. 6 is relevant because temporary employees may have replaced terminated permanent employees, even though the permanent employees were informed that their services were no longer needed. See Reply at 4. At the hearing, Mr. Bergmann stated that, through deposition testimony, the Plaintiffs learned that "your services are no longer needed" means that a particular employee's services were no longer needed, and not that the employee was being laid off. He also stated that the Defendants could list the employees for whom the City of Albuquerque contracts through an employment agency but that the Defendants have no knowledge what the agency pays those employees.

*7 The Court believes: (i) that the interpretation of "your services are no longer needed" is still in play, regardless of what interpretation a deponent may have provided; (ii) that the information sought in Interrogatory No. 6 is relevant to the issue whether the City of Albuquerque replaced terminated employees with temporary or contract employees; and (iii) that arrangement is relevant to the issues. The Court, therefore, overrules the Defendants' objection. The Court orders the Defendants to provide a supplemental answer, under oath, identifying any temporary, seasonal, part-time, or contract employees since 311-CCC's inception by giving those employees' names, job titles, and dates of employment with the City. The Court also orders that, if the identified employee is a City employee, the Defendants shall disclose that employee's rate of pay. The Court further orders that, if the identified employee is a contract employee, the Defendants shall disclose the information that the City paid to an employment agency. If the Plaintiffs wish to seek more information regarding the rate the employment agency paid the contract employees, they may serve third-party subpoenas or submit an interrogatory to the City requesting any information it has regarding that information.

E. INTERROGATORY NO. 7 AND NO. 9.

Interrogatory No. 7 seeks any and all discussions or considerations concerning why 311-CCC employees are considered unclassified, including participants in the discussions, the dates of discussions, and the forums or means of communication. The Defendants originally objected to the interrogatory as vague, ambiguous, overbroad, and unduly burdensome-objections which the Court overrules. Interrogatory No. 9 seeks similar information-any and all documents and communications, including electronic mail messages, concerning classified and unclassified employee status at 311-CCC since March 2004. In addition to objecting to Interrogatory No. 9 as vague, ambiguous, overbroad, and unduly burdensome-objections which the Court overrules-the Defendants also cited the City of Albuquerque's Merit System Ordinance. In their supplemental response to Interrogatory No. 7, the Defendants responded: "The City is investigating the existence of written documents relative to the reasons for Center employees being unclassified and will supplement this answer, as appropriate, if responsive documents are found." Supplemental Answers at 6. For Interrogatory No. 9, the Defendants answered: "See Supplemental Answer to Interrogatory No. 7." Supplemental Answers at 6. In their reply, the Plaintiffs stated that no substantive supplementation has yet been provided. See Reply at 4.

At the hearing, Mr. Livingston challenged the Defendants' approach to these Interrogatories: they look for documents, and if they do not find any responsive, they do not answer the interrogatory. Mr. Livingston argues that the Defendants still have to provide an answer, even if the answer is that no such discussions or communications took place. Mr. Bergmann represented that the Defendants have not yet found any written evidence of what discussions were held regarding 311-CCC employee classification. He also represented that the people who would have been involved no longer work for the City of Albuquerque, and because of the turnover in employees, he would be relying on guessing who was involved in the relevant discussions over five years ago. He argues that interrogatories are an inappropriate discovery vehicle for this information and that depositions would be more appropriate.

*8 The Court believes that Interrogatories Nos. 7 and 9 seek information which is relevant and which is appropriate for Interrogatories. The Plaintiffs have a right to choose which discovery vehicle they wish to use, and they have interrogatories available to them. Under rule 33 of the Federal Rules of Civil Procedure, interrogatories may be used in conjunction with other methods of discovery. The methods of discovery are complementary, rather than alternative or exclusive, may be used singly or in conjunction with each other, and may be used in any sequence. See Res. Assocs. Grant Writing & Eval. Servs., LLC v. Maberry, No. CIV 08-0552, 2008 U.S. Dist. LEXIS 108662, at *3, 2008 WL 5978896 (D.N.M. Dec. 8, 2008) ("The Federal Rules of Civil Procedure do not set a priority for discovery . . . and while it often makes good sense to have a witness' documents before he or she is deposed, there is nothing in the rules that requires a document production before the deposition begins."); Fed.R.Civ.P. 26(d) ("Unless, on motion, the court orders otherwise for the parties' and witness' conveniences and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery."); 7 C. Wilkenupdates & R. Bloom, Moore's Federal Practice-Civil § 33.04, at 15-16 (3d ed.2010). The Court orders that the Defendants must provide the Plaintiffs with an answer to these interrogatories within ten days. The Defendants must make a reasonable effort to answer these interrogatories, including talking to employees and looking at documents, and must provide any and all information it has about the Defendants' knowledge of the discussions and considerations at issue. The Defendants' answer must disclose those involved in the discussions, the dates of the discussions, the method of communication, and must also describe the discussions. The Court will interpret Interrogatory No. 9 as not requesting every document that just talks about classified or unclassified employees. The Court requires, however, that the City must produce those documents, electronic-mail messages, and any other nature of communication that are in document form, which discuss why someone is considered a classified or unclassified employee, how they became a classified or unclassified employee, and the reasons that they are classified or unclassified. The Defendants must produce documents and identify the Bates-stamps on the documents that are responsive in the answer. The Defendants may wish to approach the Plaintiffs about depositions, but the Court will not order depositions at this time.

G. INTERROGATORY NO. 12.

Interrogatory No. 12 seeks identification of all 311-CCC employees or former-employees who were suspended, demoted, transferred, or terminated for the same or similar reasons as those given for the Plaintiffs' terminations. The interrogatory requests the name, address, telephone number, dates, and category of employment action for each employee or former-employee. In response, the Defendants stated: "See Answers to Interrogatories No. 1, No. 5, and No. 10." The Defendants did not supply a supplemental response. The Plaintiffs' motion to compel argues that the Court should require the Defendants to answer the question more fully and completely. At the hearing, Mr. Livingston stated that the Defendants had informed him that the City of Albuquerque had not suspended, demoted, or transferred any employees. Mr. Bergmann stated, to the contrary, that the Defendants had already provided a list of terminated employees in an answer to another interrogatory.

*9 Responses to interrogatories must be self-contained within each interrogatory answer and the Court finds that the Plaintiffs are entitled to a response specific to Interrogatory No. 12. The Court, therefore, orders that the Defendants must provide a supplemental answer to the Plaintiffs which states the name, address, telephone number, and dates and types of employment action of any employees or former-employees within the scope of Interrogatory No. 12. The Defendants must submit this information as an answer, and not as a list or a chart attached separately. The Defendants must not merely refer to the answer or supplemental answer to another interrogatory.

H. INTERROGATORY NO. 13.

Interrogatory No. 13 requests the Defendants to state the problems and policies the 311-CCC management encountered and applied with respect to leaves of absence and employee discipline, and to identify participants in any discussions, reports, or communications along with the dates on which they occurred. The Defendants originally objected that these interrogatories are not reasonably calculated to lead to the discovery of admissible evidence. The Defendants' supplemental response states: "Defendants will supplement their Answer after Plaintiffs serve a revised Interrogatory, as agreed by Counsel." Supplemental Answers at 7. In their reply, the Plaintiffs represented that the Defendants have not supplemented their answer. At the hearing, Mr. Bergmann expressed concerns about confidential medical information having to be disclosed. Mr. Livingston responded that the request does not seek medical information.

The Court believes that Interrogatory No. 13 requests evidence which may be relevant to the case and overrules the Defendants' objection. The Court orders that the Defendants must provide a supplemental response to Interrogatory No. 13. As far as medical information may be implicated, the Court believes that the Defendants can draft their answer in such a way that it is both responsive and avoids implicating confidential medical issues. If it becomes necessary to discuss confidential medical issues to be completely accurate and responsive to the interrogatory, that information can go under the Confidentiality Order which the Court has ordered the parties to put into place.

I. INTERROGATORIES NOS. 14, 15, AND 16.

Interrogatory No. 14 asks the Defendants to discuss and describe in as much detail as possible the reasons for making and keeping 311-CCC operators and supervisors unclassified and the benefits and costs of having those employees work in unclassified status. Interrogatory No. 15 seeks the same information regarding classified employees. Interrogatory No. 16 asks for any reasons, requirements, or justifications preventing or precluding consideration of 311-CCC employees as classified employees. The Defendants originally responded that these interrogatories were overbroad, unduly burdensome, vague, and ambiguous. The Court overrules these objections, as the Court believes the information sought is reasonably and clearly requested, and is not unduly burdensome on the Defendants. In response to Interrogatory No. 14, the Defendants also responded: "Subject to and without waiving these objections, the Defendants state that unclassified status permits greater flexibility as to employees' terms and conditions of employment to better serve the citizens of Albuquerque." In response to Interrogatories Nos. 15 and 16, the Defendants stated: "See Answer to Interrogatory No. 14." In the Defendants' supplement answer to Interrogatory No. 14, the Defendants stated: "Defendants will supplement their Answer after Plaintiffs serve a revised Interrogatory, as agreed by Counsel." The Plaintiffs did not revise the interrogatory, and the Defendants did not provide supplementation. In the Defendants' supplemental answer to Interrogatory No. 15, the Defendants stated: "Defendants are unaware of any formal study of the costs and benefits of having Center employees as classified." They did not provide a supplemental answer to Interrogatory No. 16. At the hearing, Mr. Bergmann argued that he is not sure what more Mr. Livingston wants other than the supplemental response that he has been given.

*10 On Interrogatory No. 14, if the supplemental answer that "unclassified status permits greater flexibility as to employees' terms and conditions of employment to better serve the citizens of Albuquerque" is the sole reason for unclassified status, then the Defendants will be held solely to that explanation. If the Defendants do not wish to supplement this answer further, the Court will not compel them to change their answer; however, the Defendants will be bound by their answer and will not be permitted to expand or expound upon this explanation later at trial. The Defendants will be permitted only to give "flexibility" as its justification for classifying an employee as unclassified. If they do not supplement their interrogatory response, the Court will not permit the Defendant to explain flexibility to the jury or to go into any further depth. If the Defendants wish to elaborate on what it means by flexibility and what it means to the community, they need to put it in their supplemental response to the Plaintiffs. On Interrogatories No. 15 and No. 16, the Court orders the Defendants to state an independent answer to each interrogatory and not rely on a referral back to the supplemental answer to Interrogatory 14 to satisfy its obligation to respond.

IV. THE COURT WILL DENY THE MOTION TO COMPEL A SUPPLEMENTAL ANSWER TO INTERROGATORY NO. 4.

Interrogatory No. 4 asks the Defendants to identify every 311-CCC employee since March 2004 who was designated exempt from the provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 through § 219 ("FLSA"), and for those identified employees, to also give the position the employee held, the basis of the exemption, the date of hire, and the last date of employment with the City of Albuquerque. The Defendants' original answer objected that Interrogatory No. 4 is overbroad and unduly burdensome, and seeks information not reasonably calculated to lead to discovery of admissible evidence. The Defendants also stated that they attached a list of supervisors exempt under § 13(a)(1) of the FSLA and their dates of employment. The Plaintiffs' motion to compel argues that the Defendants failed to provide the reasons for the claimed exemptions in the attached list. In the Defendants' supplemental answer, they state that the exemption applicable is the executive and/or administrative exemption.

In the hearing, Mr. Livingston expressed that Interrogatory No. 4 seeks the reasons why the employees that the Defendants identify qualify for the exemption the Defendants are asserting, and not merely a statement of the exemption category. Mr. Bergmann stated that the Defendants could provide more explanation of the exemptions, but contended that the interrogatory seeks a legal conclusion, legal analysis, and argument. Mr. Livingston responded that the Plaintiffs are not seeking the legal explanation, but rather the facts that underlie the conclusion that certain employees are considered to be under the executive and/or administrative exemptions.

*11 The Court believes that the Plaintiffs are now seeking information which goes beyond the information requested in Interrogatory No. 4. The Defendants identified exempt individuals, positions, and dates of employment. The Defendants also supplemented their response with the categorical basis of the exemptions. The Court finds that the information provided is responsive to the request and therefore denies the Plaintiffs' motion to compel an additional response to Interrogatory No. 4. If the Plaintiffs wish to ask an additional interrogatory specifically seeking the factual basis for the categorical designations, the Plaintiffs are free to do so, and if the Defendants do not produce a responsive answer, the Plaintiffs may move to compel without this denial prejudicing that effort.

V. THE OBJECTIONS TO THE PLAINTIFFS' REQUESTS FOR PRODUCTION ARE OVERRULED, AND THE DEFENDANTS MUST ENSURE THAT THEIR RESPONSES ARE COMPLETE.

The Plaintiffs served the Defendants with five requests for production. In the Defendants' original responses, they incorporated by reference the general objections they had asserted in their original answers to the interrogatories. The Defendants withdrew these general objections in their supplemental response. To the extent that the Defendants also asserted individual objections to the five requests for production, the Court overrules those objections. The Court also compels the Defendants to review their responses to the requests for production and ensure that they have produced all documents that fall within the scope of the requests. If there are more responsive documents, the Defendants are compelled to make a supplemental production to the Plaintiffs.

VI. THE PLAINTIFFS' MOTION TO COMPEL WAS NOT PREMATURE, AND THE COURT WILL AWARD SOME FEES TO THE PLAINTIFFS.

The Plaintiffs have also requested that the Court impose sanctions on the Defendants in the amount of the Plaintiffs' attorney's time, effort, and fees expended in presenting and prosecuting the motion to compel. The Defendants argue that sanctions are not appropriate because the motion was premature and because the Plaintiffs failed to complete the process of conferring with the Defendants' counsel in good faith before bringing the motion.

The Defendants contend that the Plaintiffs' motion to compel was premature because the parties had agreed that the Defendants would provide supplemental responses. See Response at 2. The Defendants also conceded, however, that they told the Plaintiffs during the November 19, 2009 telephone conference that they would not, at that time, withdraw their general objections to the interrogatories and requests for production. See Response at 2. Two weeks passed without a response produced by the Defendants. Given the Defendants' indication to the Plaintiffs that they would not withdraw their objections, and the amount of time that passed without supplementation, the Court finds that the Plaintiffs' motion to compel was not premature.

*12 Moreover, upon review of the Defendants' supplemental answers, the Court finds that many of the supplemental answers were not responsive answers, but rather stated that the Defendants "will supplement this answer, as appropriate, if responsive documents are found." See, e.g., Supplemental Answers to Interrogatories Nos. 5, 7, 9, and 11. The original responses were objections. Thus, at the time of the hearing, the Defendants had still not provided answers to the Plaintiffs.

The imposition of sanctions under rule 37 of the Federal Rules of Civil Procedure is within the Court's sound discretion. See Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir.2002) Rule 37(a) provides that the court may require the party "whose conduct necessitated the motion" to pay the moving party's reasonable expenses and fees. These fees may be awarded even if the non-moving party disclosed the requested discovery after the motion to compel was filed. See Fed.R.Civ.P. 37(a)(5)(A). Rule 37(a)(5)(C) provides that if the motion to compel is granted in part and denied in part, the Court may "apportion the reasonable expenses for the motion." Fed.R.Civ.P. 37(a)(5)(C).

Although the Defendants' counsel argues that a good-faith effort was made on its supplemental responses and in its efforts to work with the Plaintiffs' counsel, the Court believes that, given that the Defendants represented during the parties telephone discussions that they would not withdraw their general objections, the Plaintiffs made the appropriate and necessary decision to file a motion to compel. Further, the supplemental answers were largely unresponsive, which is reflected in the Court's granting of the motion to compel on all the contested interrogatories and requests for production except for one. Because the Defendants continued to draw out the discovery process with promises to answer if documents were found, the Court believes that a shift of the Plaintiffs' attorney's fees to the Defendants is appropriate. Because to a limited extent, however, the Court believes the Defendants were cooperative and responsive, and because the Plaintiffs did not prevail on all aspects of the motion to compel, the Court will not shift all the Plaintiffs' attorney's fees to the Defendants. The Court, therefore, orders the Defendants to pay to the Plaintiffs ninety-five percent of the attorney's fees that the Plaintiffs incurred in drafting the motion to compel and reply brief, and ninety-five percent of the fees incurred in arguing the motion before the Court.

IT IS ORDERED that the Plaintiffs' Motion and Memorandum to Compel Discovery and for Sanctions is granted in part and denied in part. The Court grants the motion to compel as to Interrogatories Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, and 16, and as to Requests for Production Nos. 1-5. The Court denies the motion to compel as to Interrogatory No. 4. The Court also awards the Plaintiff ninety-five percent of the attorney's fees incurred in preparing and prosecuting the motion to compel. The motion is otherwise denied.

Richard M. Paul, III, Bradley Thomas Wilders, George A. Hanson, Jack D. McInnes, Lee Richard Anderson, Stueve Siegel Hanson, LLP, Kansas City, MO, Mark A. Potashnick, Weinhaus & Potashnick, St. Louis, MO, for Plaintiffs.

David Franklin Graham, Jason John Englund, Sarah Marie Konsky, Steven Thomas Catlett, Sidley Austin LLP, Chicago, IL, Geoffrey David Deboskey, Sidley Austin, LLP, Los Angeles, CA, James Michael Lyons, Joy T. Allen Woller, Susan Strebel Sperber, Rothgerber Johnson & Lyons, LLP, Denver, CO, for Defendant.

ORDER

BOYD N. BOLAND, United States Magistrate Judge.

*1 This matter arises on the Plaintiffs' Motion to Compel [Doc. # 342, filed 3/21/2013] (the "Motion to Compel"). I held a hearing on the Motion to Compel on April 16, 2013, and took the matter under advisement.

The Motion to Compel raises numerous disputed issues, and is GRANTED IN PART and DENIED IN PART as specified below.

1. Studies and Analyses Regarding Pizza Hut's Reimbursement Rate

In response to interrogatories, Pizza Hut indicated that it will rely on certain studies in defense of the claim that its reimbursement rate is adequate. In particular, Pizza Hut relies on "data provided by Runzheimer," Response to Interrogatory No. 9 [Doc. # 345-1] at p. 12; "a survey of Pizza Hut's delivery drivers . . . to determine the type of automobile that should be used as the standard vehicle for calculating Fixed Costs and Operating Costs," id. at p. 13; "[a] survey . . . to determine the age of Pizza Hut's driver vehicles to account for depreciation in the Fixed Costs calculation, id.; "vehicle cost data" developed by Runzheimer International, Response to Interrogatory No. 14 [Doc. # 345-2] at p. 11; "data received from Runzheimer to calculate a per-mile cost," id. at p. 13; an analysis by which "Pizza Hut determined the average miles its delivery drivers travel per trip, which is less than 3 miles round trip", id.; analyses supporting Pizza Hut's decision to make exceptions "where the average round trip may be higher," including that supporting an increased the rate for Store No. 311417 in Porter, Texas, id.; and information derived from Pizza Hut's "Concerned Resolution Process." Id. The plaintiffs moved to compel the production of these materials.

Pizza Hut responded that it "agrees to produce all final studies upon which [it] may rely, subject to redactions for privileged information that is irrelevant to any of the claims and defenses at issue in this case." Response [Doc. # 351] at p. 3. Based on this, Pizza Hut argued that this portion of the Motion to Compel should be denied as moot.

Pizza Hut may not produce only those portions of the "final studies" upon which it will rely. To the contrary, the plaintiffs are entitled to the complete studies and the underlying data supporting those studies in order to be able to test and/or challenge the reasonableness of Pizza Hut's reliance on the final studies to justify its position. For example, if the raw data was improperly manipulated in the final studies relied on by Pizza Hut, the plaintiffs must be able to demonstrate that impropriety.

In addition, Pizza Hut claimed that some communications concerning the studies and underlying data are immune from discovery because of the involvement of Pizza Hut's in-house counsel, Erika Burkhardt, in "ensuring that Pizza Hut's policies concerning driver reimbursement rates were in compliance with the FLSA." Id. at p. 6. In particular, Pizza Hut argued that "the withheld communications contain in-house counsel's thoughts and impressions regarding Pizza Hut's legal compliance, as well as factual information transmitted between employees and in-house counsel for the purpose of obtaining legal advice." Id. The plaintiffs countered by arguing that Pizza Hut has waived any claim of privilege by putting the Runzheimer and other studies at issue. Motion [Doc. # 342] at pp. 2-4 (arguing that "[m]erely referencing such a study in its defense, without actually producing any of it, constitutes issue waiver") (original emphasis).

*2 This case arises under the federal Fair Labor Standards Act, and jurisdiction exists under 28 U.S.C. § 1331. Consequently, questions of privilege are determined by applying the federal common law of privileges. Everitt v. Brezzel, 750 F.Supp. 1063, 1066 (D.Colo.1990).

To establish at issue waiver of the attorney-client privilege, as the plaintiffs allege here, it must be shown:

Frazier v. Bd. of County Comm., 2010 WL 447785 *1 (D.Colo. Feb. 3, 2010) (internal quotations and citations omitted).

In this case, I find that there has not been an at issue waiver of the attorney-client privilege. Although Pizza Hut will rely on certain studies performed by Runzheimer and others, there is no showing that it will rely in its defense on materials created by Ms. Burkhardt or other Pizza Hut lawyers or on their legal advice or opinions. The studies, which are not privileged and on which Pizza Hut will rely in defense, must be produced in their entirety, including drafts and raw data. The legal advice given to Pizza Hut based on those studies, on which Pizza Hut does not intend to rely, is privileged, and there has been no waiver of that privilege. See id. at *3.

The Motion to Compel is GRANTED to require Pizza Hut to produce the complete studies and the underlying data supporting those studies regarding Pizza Hut's reimbursement rate, but it is DENIED insofar as it seeks an order compelling those documents withheld by Pizza Hut on a claim of attorney-client privilege.

2. Corrected and Additional Information That Should Be Compelled

(a) Pizza Hut agreed to produce "delivery vehicle information" for "all opt-in Plaintiffs." Response [Doc. # 351] at p. 10 (original emphasis). Consequently, except for setting a date by which the information must be produced, I agree with Pizza Hut that this issue is moot.

(b) The plaintiffs seek an order compelling the production of "complete file layouts and data dictionaries, and data in data format." Motion [Doc. # 342] at p. 10. Pizza Hut responded that "no additional file layouts or data dictionaries exist." Response [Doc. # 351] at p. 11.

At the hearing on the Motion to Compel, the plaintiffs pointed to the PeopleSoft application as an example of a manual which must exist but has not been produced. Pizza Hut responded that there is no such thing.

*3 I cannot compel a party to produce that which does not exist. Without additional evidence to support its request, the plaintiffs have failed to show that there are additional responsive documents which have not been produced.

(c) The plaintiffs seek an order compelling Pizza Hut to produce information concerning the "number of deliveries and reimbursement paid." Motion to Compel [Doc. # 342] at p. 11. Pizza Hut responded that "[t]he only Pizza Hut data showing the number of deliveries and reimbursements paid to delivery drivers are the Driver Dispatch Reports" which are "not readable outside of the point of sale system within each store" and are retained "in txt file format." Response [Doc. # 351] at pp. 12-13. Pizza Hut asserted that it "has diligently preserved the information that is relevant to this case—the reimbursement data as it exists within the Driver Dispatch Records." Id. at p. 14. Implicit is that Pizza Hut made this information available to the plaintiffs.

At the hearing on the Motion to Compel, plaintiffs counsel again argued, without supporting evidence, that there must be more. On this record, and without evidence establishing that something more exists, I cannot compel Pizza Hut to produce what it says does not exist.

(d) The plaintiffs complain:

Motion to Compel [Doc. # 342] at p. 13.

Pizza Hut responded:

Response [Doc. # 351] at p. 13.

On this record, and without evidence establishing that something more exists, I cannot compel Pizza Hut to produce what it says does not exist.

*4 (e) The plaintiffs seek an order compelling production of employee profile data with corrected and additional information. Motion [Doc. # 342] at p. 14. Pizza Hut responded that this information was provided on April 12, 2013, and plaintiffs' counsel acknowledged that he has not yet reviewed that production. This matter appears to be moot in view of Pizza Hut's representation, but may be renewed in the event the plaintiffs find the most recent production to be inadequate.

3. Deposition of Plaintiffs' Data-Related Topic

Apparently the parties disagreed about whether the requested deposition would be taken pursuant to Fed.R.Civ.P. 30(b) (6) or individually of Mr. Light. At the hearing, Pizza Hut's counsel agreed that the deposition could be pursuant to Rule 30(b)(6), rendering the dispute moot except for the time within which the deposition must be completed.

IT IS ORDERED:

(1) The Motion to Compel [Doc. # 342] is GRANTED IN PART and DENIED IN PART as follows:

(2) Pizza Hut shall provide supplemental discovery responses and produce responsive documents consistent with this Order on or before May 17, 2013.

(3) Pizza Hut shall produce a deponent pursuant to Fed.R.Civ.P. 30(b)(6) to testify concerning the plaintiffs' data-related topic at a date, time, and place as the parties may agree, but not later than June 10, 2013.

Arthur S. Bowman, Jr., Bowman & Bowman, LLC, Denver, CO, for Plaintiff.

Cathy Havener Greer, Wells, Anderson & Race, LLC, Michael Turner Lowe, Bruno, Colin, Jewell & Lowe, P.C., Denver, CO, for Defendants.

ORDER

BOYD N. BOLAND, United States Magistrate Judge.

*1 This matter arises on the following discovery motions:

(1) Defendants' Motion to Compel Discovery Responses [Doc. # 48, filed 3/23/2010] ("Defendants' Motion to Compel"); and

Plaintiff's Motion to Compel [Doc. # 52, filed 3/26/2010] ("Plaintiff's Motion to Compel").

A. Defendants' Motion to Compel

The Defendants' Motion to Compel was filed on March 23, 2010. I ordered the plaintiff to respond by April 2, 2010, but none was received.

The defendants seek an order compelling two things. First, the defendants seek to require the plaintiff to execute a military records request form. In addition, the defendants seek to require the plaintiff to produce "all Employee Benefits information from his current employer. . . ."

Request to Execute Release:

In Morris v. City of Colorado Springs, 2009 WL 4927618 *2 (D.Colo.2009), the court correctly noted:

(Internal citations omitted.)

Nor is there anything unique about releases of medical records. Rule 34, Fed.R.Civ.P., does not expressly authorize a court to order a party to sign a release concerning any kind of record. See, e.g., White v. Kansas City Peterbilt, 2010 WL 996427 *1 (D.Kan. March 17, 2010) (refusing to require execution of release of employment records); P.S. v. The Farm, Inc., 2008 WL 185801 *1 (D.Kan. Jan.18, 2008) (same, applied to medical, educational, law enforcement, and state child services agency records); Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 515 (D.Kan.2007) (same, applied to product design records); EEOC v. Thorman & Wright Corp., 243 F.R.D. 426, 428 (D.Kan.2007) (same, applied to past employment records); Becker v. Securitas Security Services USA, Inc., 2007 WL 677711 (D.Kan. March 2, 2007) (same, applied to medical, employment, and educational records).

The leading case on the issue is EEOC v. Thorman & Wright, 243 F.R.D. at 428-29, where the Kansas district court explained:

* * *

(Internal quotations and notes omitted.)

Where, as here, the defendants have not attempted to obtain by subpoena the documents from the third party custodian, I will not compel the plaintiff to sign a release form.

Documents relating to employee benefits information:

I find that the employee benefits information requested from the plaintiff is relevant to matters at issue in this case and is discoverable. I will order the plaintiff to product all documents in his possession, custody, or control responsive to the request.

2. Plaintiff's Motion to Compel

Initially, the plaintiff argues that the defendants' objections are waived because they did not make objections timely. I disagree. The defendants initially objected to all of the plaintiff's discovery as exceeding the numerical limits imposed by the scheduling order. See Defendants' Combine Responses [Doc. # 52-1]. Following a conference pursuant to D.C.COLO.LCivR 7.1A, the defendants' submitted their Amended Responses [Doc. # 52.2] which contain their objections. I find that the objections are timely.

Interrogatory No. 1:

The plaintiff seeks to compel an answer to Interrogatory No. 1, which requests:

Plaintiff's Motion to Compel [Doc. # 52] at p. 4.

The defendants objected, asserting that the interrogatory is overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence, and because the information "is available in public documents by a search of case filings in either state or federal court which would be equally available to Plaintiff" Id. at p. 5.

*3 The defendants failed to provide specific evidence of the burden imposed in answering the interrogatory, which they should have done. I will not leave my common sense at the courthouse door in ruling on this motion, however. It is patently obvious that responding to this interrogatory would impose an enormous burden on the Denver Police Department and unreasonably distract it from its crucial function of law enforcement. Nor does the information requested appear to be particularly probative of the issue of whether the City of Denver had a policy or custom of deliberate indifference to Constitutional rights or that it inadequately and improperly investigated citizen complaints of police misconduct. See Plaintiff's Motion to Compel at p. 6.

Rule 26(b)(2)(C), Fed.R.Civ.P., requires a court to consider proportionality when confronting discovery issues:

* * *

On balance, I find that the burden of providing the requested information far outweighs is probative value. Plaintiff's Motion to Compel is denied with respect to Interrogatory No. 1.

Interrogatories No. 7 and 8:

Plaintiff's Interrogatories No. 7 and 8 are related and seek information concerning any investigation by the City of Denver "[a]fter receipt of the 24-10-109 Notice under Governmental Immunity letter" dated December 8, 2008. Defendants' Supplemental Responses [Doc. # 52-3] at p. 6-7. The defendants objected to the interrogatories "to the extent that the information requested would be subject to attorney-client privilege or work-product privilege," id., but then responded:

Id.

The supplemental response fully answers the interrogatories. Plaintiff's Motion to Compel is denied with respect to Interrogatories No. 7 and 8.

Plaintiff's Remaining Issues:

Finally, the plaintiff seeks an order compelling further answers to 27 additional interrogatories. The motion is patently inadequate, however. The plaintiff's argument with respect to the remaining 27 interrogatories states, in its totality:

interrogatories have not been answered, objections have not been made timely, and orders compelling are requested. . . .

Plaintiff's Motion to Compel [Doc. # 53] at p. 8.

Contrary to the plaintiff's assertion, the defendants have responded to each of the remaining 27 interrogatories. See Defendants' Supplemental Responses [Doc. # 52-3].

3. Attorneys Fees and Costs

Rule 37(a)(5)(B), Fed.R.Civ.P., provides:

The Defendants' Motion to Compel was granted in part and denied in part. On the issue where the defendants' motion was denied, there is a split of authority concerning whether and when to require execution of releases. Importantly, the plaintiff had agreed to sign a release, and the defendants were attempting to enforce that agreement. Finally, the plaintiff did not respond to the Defendants' Motion to Compel. Under these facts, it would be unjust to award the plaintiff his costs and attorney fees (if any) in resisting the Defendants' Motion to Compel.

By contrast, the Plaintiff's Motion to Compel was denied in its entirety because it was meritless. Consequently, I will entertain the defendants' motion for award of costs and attorney fees, pursuant to Rule 37(a)(5)(B), incurred in opposing the Plaintiff's Motion to Compel. Such a motion must be filed, if at all, on or before April 23, 2010.

IT IS ORDERED that the Defendants' Motion to Compel [Doc. # 48] is GRANTED IN PART and DENIED IN PART as follows:

GRANTED to require the plaintiff to produce, on or before April 23, 2010, all documents in his possession, custody, or control concerning "Employee benefits information from his current employer, Stancorp Registered Investment Advisors, including, but not limited to, enrollment documents for health care, vision care and dental care coverage; handbooks detailing health, vision and dental coverage; waiting period for pre-existing conditions, and employee handbook"; and

DENIED in all other respects.

IT IS FURTHER ORDERED that the Plaintiff's Motion to Compel [Doc. # 52] is DENIED.

IT IS FURTHER ORDERED that the defendants shall file, on or before April 23, 2010, a motion for an award of costs and attorney fees, pursuant to Rule 37(a)(5)(B), incurred in opposing the Plaintiff's Motion to Compel.

Larry C. Miller, Canon City, CO, pro se.

Bree Ashley Gorynski, Edmund Martin Kennedy, Hall & Evans, LLC, Denver, CO, for Defendants.

ORDER

MICHAEL E. HEGARTY, United States Magistrate Judge.

*1 Before the Court is Defendant Kastelic's and Ridgwell's Motion to Compel Plaintiff's Responses to their First Set of Discovery Pursuant to Fed.R.Civ.P. 37(a) [filed July 23, 2013; docket # 91]. The Motion is referred to this Court for disposition. (Docket # 93.) With the Motion fully briefed1. the Court determines that oral argument would not materially facilitate its adjudication of the matter. For the reasons set forth below, the Motion is denied as stated herein.

I. Background

Plaintiff, proceeding pro se, initiated this action on October 9, 2012. (Docket # 1.) His claims arise from alleged threats and an assault by a fellow inmate at Crowley County Correctional Facility ("CCCF"). Plaintiff names the inmate (Daniel Reimer) as a Defendant in this action, as well as various prison officials who allegedly failed either to protect Plaintiff from the assault or to entertain Plaintiff's assertion of self defense during the disciplinary proceedings that followed. In total, Plaintiff's Complaint contains twelve causes of action against eight Defendants. (Id.) Upon review of the Complaint, Judge Babcock dismissed Plaintiff's eighth, ninth, and tenth claims, and dismissed Defendants Tom Clements, Corrections Corporation of America, and Warden Miller. (Docket # 17.) Plaintiff voluntarily dismissed Investigator Brownstein on April 8, 2012. (Dockets 48, 51.) With the dismissal of Investigator Brownstein, Plaintiff's twelfth claim became moot. (See docket # 1.) Thus, Plaintiff proceeds on claims one, two, three, four, five, six, seven, and eleven against Defendants Kastelic, Reimer, and Ridgwell. As relief, Plaintiff's Complaint requests, inter cilia, $1,000,000 in damages against Defendant Kastelic for allegedly "exacerbating [Plaintiff's] mental health issues (of record)." (Id. at 21.) With regard to Defendant Ridgwell, Plaintiff requests $550,000 in punitive damages, plus various forms of injunctive relief (Id. at 22.)

Defendants Kastelic and Ridgwell (hereinafter "the CCCF Defendants") served their First Set of Discovery to Plaintiff on May 21, 2013. (Docket # 91-1.) In addition to several interrogatories and requests for production of documents, the CCCF Defendants provided Plaintiff with various releases to sign and return. (Id.) Through the executed releases, the CCCF Defendants sought to acquire several categories of records from the Colorado Department of Corrections ("CDOC"), including criminal justice records, case management files, diagnostic assessments, security classifications, disciplinary proceedings, grievances, comprehensive medical and mental health records, and pharmacy records. (Id.) Pursuant to Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A), Plaintiff's responses were due on or before June 24, 2013.

In a letter dated July 2, 2013, the CCCF Defendants informed Plaintiff they had not received his discovery responses. (Docket # 91-2.) The CCCF Defendants expressed particular concern regarding Plaintiff's failure to execute and return the attached releases. (Id.) Plaintiff responded to the letter on July 10, 2013, indicating that mail had been delayed due to the CCCF Defendants' counsel's failure to comply with the prison facility's mail protocols. (Docket # 91-3.) The CCCF Defendants re-mailed their discovery requests to Plaintiff on July 16, 2013, and asked Plaintiff submit his responses immediately. (Docket # 91-4.)

*2 Approximately one week after their last letter, the CCCF Defendants filed the pending Motion to Compel. (Docket # 91.) Though the Motion is not entirely clear as to what discovery remains outstanding, it appears the CCCF Defendants seek to compel interrogatory responses, document production, and execution of the releases attached to the discovery requests. Plaintiff's response represents that he mailed copies of his discovery responses to the CCCF Defendants on June 17, 2013, and again on July 25, 2013. (Docket # 100.) Plaintiff also attached the medical releases, which he executed as modified. (Id.)

The CCCF Defendants' reply in support of their Motion does not comment on the adequacy of Plaintiff's alleged discovery responses except with regard to the signed releases. On that point, the CCCF Defendants object that Plaintiff's modifications prevent the CCCF Defendants from accessing Plaintiff's psychological records. This concerns the CCCF Defendants because Plaintiff has alleged that the CCCF Defendants' conduct exacerbated his mental health issues. Thus, the CCCF Defendants request the Court order Plaintiff to execute unmodified releases, or alternatively, prohibit Plaintiff from seeking damages for any psychological harm he attributes to the CCCF Defendants as a result of the acts described in his Complaint.

II. Discussion

Rule 26 permits discovery that is "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1) (2009). In addition, medical records fall within the scope of confidential documents under Fed.R.Civ.P. 26(c), which can be addressed through the entry of an appropriate protective order. Notably, neither party has requested such an order in this action. Given the CCCF Defendants' apparent concession that Plaintiff has adequately responded to all conventional discovery requests, the Court directs its attention to the releases.

A review of cases addressing whether a court may order production of executed medical releases reveals a split of authority. The first view primarily looks to the plain language of Rule 34 to conclude that records not in the party's possession may not be compelled and that Rule 34 does not permit the Court to order the party's signature on a medical release form. See, e.g., Neal v. Boulder, 142 F.R.D. 325, 327 (D.Colo.1992); see also Clark v. Vega Wholesale, Inc., 181 F.R.D. 470, 472 (D.Nev.1998). The second view generally permits an order compelling a signature on a release form when the party has placed his or her medical condition at issue in the case. See Williams v. NPC Int'l, Inc., 224 F.R.D. 612, 613 (N.D.Miss.2004); see also Adams v. Ardcor, 196 F.R.D. 339, 344 (E.D.Wis.2000). However, even courts that compel authorizations from the plaintiff typically require the defendant first to seek the documents directly from the third party who has custody of the documents. EEOC v. Thorman & Wright Corp., 243 F.R.D. 426, 429 (D.Kan.2007) ("It is only after the individuals or entities object on grounds of privilege or otherwise fail to produce the documents pursuant to subpoena that the Court will consider a motion requesting (1) the Court compel the entity to produce the documents pursuant to Rule 45; or (2) compel the party to execute appropriate releases pursuant to the Court's general powers to enforce its own orders"); see also Johnson v. Kraft Foods North Am., Inc., 236 F.R.D. 535, 540 (D.Kan.2006) (same).

*3 This Court has previously determined that authorization for the release of medical records should not be routinely compelled, even when it may be the most efficient manner for such discovery. See Cutting v. United States, No. 07-cv-02053-REB-MEH, 2008 WL 1775278, *2 (D.Colo. Apr. 14, 2008) (unpublished). In Cutting, the Court ordered the plaintiffs to provide executed authorizations for medical records, but only after determining that such method would be more efficient since the matter involved more than 90 medical providers. Id. Conversely, where defendants sought production of medical records from only one provider, the Court has followed the reasoning of Neal, Thorman, and Johnson and required the defendant first to seek a plaintiff's medical records pursuant to Rule 45. Morris v. City of Colo. Springs, 09-cv-01506-PAB-MEH, 2009 WL 4927618, at *2 (D.Colo. Dec. 18, 2009). In Morris, Court indicated it would entertain a motion to compel the relevant medical releases only upon failure of the subpoena. Id.

In this case, like Morris, the CCCF Defendants seek production of Plaintiff's records from a single entity: CDOC. (Docket # 91-1 at 9-12.) The CCCF Defendants do not indicate whether they have attempted to procure such records from CDOC directly, nor have they identified any other special circumstances necessitating production by this means. In accordance with the Court's previous rulings on the issue, the Court declines compel execution of unmodified medical releases unless and until the CCCF Defendants demonstrate that they are unable to obtain the documents they seek with a Rule 45 subpoena.

III. Conclusion

To the extent Defendant Kastelic's and Ridgwell's Motion to Compel Plaintiff's Responses to their First Set of Discovery Pursuant to Fed.R.Civ.P. 37(a) [filed July 23, 2013; docket # 91] seeks to compel execution of unmodified medical releases, it is denied at this stage in the litigation.