Jean ANTOINE, Plaintiff, v. J.P. MORGAN CHASE BANK, American Security Insurance Company, and Shapiro & Burson, LLP, Defendants Civil Action No. 1:08-cv-00615 (HHK)(AK) United States District Court, District of Columbia Filed June 26, 2009 Counsel Stephanie Yvonne Bradley, Washington, DC, for Plaintiff. John Tremain May, Padraic K. Keane, Jordan, Coyne & Savits LLP, Washington, DC, for Defendants. Kay, Alan, United States Magistrate Judge MEMORANDUM ORDER1 *1 Pending before the Court are Defendant Shapiro & Burson, LLP’s Motion to Compel Discovery [49] and Motion for Sanctions [52] and Plaintiff’s Memorandum in Opposition [59]. I. Background Plaintiff alleges claims against three separate defendants in this case.[2](Def.'s Statement of P. & A. in Supp. of Mot. to Compel (“Def.'s P. & A.”) at 1.) Plaintiff claimed that Defendant Shapiro & Burson (“S&B”) violated the Fair Debt Collection Practices Act (“FDCPA”) because Plaintiff did not receive certain notices related to the foreclosure of his real property and S&B did not respond to Plaintiff’s telephone calls, fax communications, or mailed letters. (Id. at 1-2.) Because S&B claims that it did not find any evidence of Plaintiff’s communications in its files or its computerized phone and fax records, S&B requested information from Plaintiff regarding these communications in discovery. (Id. at 2.) Specifically, S&B requested information about the computer that Plaintiff allegedly used to create the letters and the fax machine that he allegedly used to transmit those letters. (Id.) S&B’s counsel served Plaintiff’s former counsel with Interrogatories and Requests for Production of Documents on October 24, 2008.[3] (Id.) Plaintiff did not provide responses to these discovery requests until February 20, 2009, apparently only after S&B had filed a previous motion to compel on February 9, 2009.[4] (Id.) S&B’s counsel deemed these responses inadequate and sent Plaintiff’s counsel a letter on February 24, 2009, requesting supplementary discovery responses by March 6, 2009. (Id.) The trial court referred the case to Magistrate Judge Kay to conduct mediation proceedings that were to conclude no later than June 9, 2009, and stayed the case until that time. (Order [65] dated 04/16/09.) The trial court also extended discovery for Defendants until July 29, 2009. (SeeMinute Order dated 06/01/09.) The parties attended a settlement conference on May 28, 2009. (Minute Entry dated 06/03/09.) Given that the settlement conference did not result in progress toward settlement by June 9, 2009, and that the trial court held oral argument on Defendant American Security Insurance Company’s motion for summary judgment on June 19, 2009, this Court will treat the stay as lifted. II. Legal Standards *2 The Federal Rules of Civil Procedure permit discovery of “any nonprivileged matter that is relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1). Courts generally construe relevance for the purpose of discovery broadly. Food Lion v. United Food & Commercial Workers Int'l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997). Parties have several means of obtaining discovery. Rule 33 allows a party to serve as many as 25 interrogatories related to any permissible inquiry under Rule 26(b) on any other party. FED. R. CIV. P. 33(a)(1)-(2). Similarly, Rule 34 permits a party to serve requests, within the scope of Rule 26(b), for documents or electronically stored information on any other party. FED. R. CIV. P. 34(a)(1)(A). Trial courts have broad discretion in handling discovery matters. Food Lion, 103 F.3d at 1012 (citing Brune v. Internal Revenue Serv., 861 F.2d 1284, 1288 (D.C. Cir. 1988)). Rule 37(a)(1) allows a party to “move for an order compelling disclosure or discovery.” FED. R. CIV. P. 37(a)(1). If the court grants such a motion, the court must also order the non-moving party to pay the “movant’s reasonable expenses incurred in making the motion, including attorney’s fees,” unless certain circumstances are present. FED R. CIV. P. 37(a)(5)(A). III. Discussion Defendant S&B moves the Court to compel Plaintiff to produce adequate discovery and to impose sanctions on Plaintiff for discovery failures to date. (Def.'s Mot. to Compel Disc. and for Sanctions at 1.) The Court will therefore consider whether Plaintiff’s responses were sufficiently responsive and complete. A. Plaintiff’s Answers to Interrogatories S&B first contends that Plaintiff has not signed the interrogatories under oath as Federal Rule of Civil Procedure 33 requires. FED. R. CIV. P. 33(b)(5) (“The person who makes the answers must sign them, and the attorney who objects must sign any objections.”). Instead, Plaintiff electronically signed the interrogatory responses. (Def.'s P. & A. Ex. 2 at 9.) Plaintiff does not object to providing a non-electronic signature and even offered to sign the interrogatories under oath at a deposition on March 31, 2009. (Pl.'s Mem. in Opp'n (“Pl.'s Opp'n”) at 1.) However, strict adherence to the signature requirement in Rule 33 is especially important because “interrogatories serve not only as a discovery device but as a means of producing admissible evidence; there is no better example of an admission of a party opponent, which is admissible because it is not hearsay, than an answer to an interrogatory.” Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008) (quoting Melius v. Nat'l Indian Gaming Comm'n, No. 98-2210, 2000 U.S. Dist. LEXIS 22747, at *3 (D.D.C. July 21, 2000)). Accordingly, the Court will order Plaintiff to produce signed interrogatory responses to S&B. S&B also contends that several of Plaintiff’s interrogatory responses are insufficient. The Federal Rules of Civil Procedure provide that “each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” FED. R. CIV. P. 33(b)(3). Fully answering an interrogatory means “a party to whom an interrogatory is propounded ‘must provide true, explicit, responsive, complete, and candid answers.’ ” Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007) (quoting Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996)). The Federal Rules of Civil Procedure consider an “evasive or incomplete” answer a failure to answer. FED. R. CIV. P. 37(a)(4). Such deficient answers frustrate one of the primary purposes of discovery, which is to “make a trial ‘less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent....’ ” Equal Rights Ctr., 246 F.R.D. at 32 (quoting United States v. Proctor & Gamble, 356 U.S. 677, 682 (1958)). Here, S&B argues that Plaintiff’s responses to Interrogatory Nos. 8, 11, 15, and 16 are insufficient. The Court will address the specific interrogatories separately. 1. Interrogatory No. 8 *3 In Interrogatory No. 8, S&B asked Plaintiff to identify the exact date on which he prepared a written communication to S&B related to the foreclosure of the property. (Def.'s P. & A. at 3.) Plaintiff responded that he sent a letter to S&B at the end of 2007. (Id.) S&B contends that Plaintiff’s answer is insufficient because Plaintiff only provided the general time-frame during which he prepared a letter to S&B, not the specific date as the interrogatory requested. (Id. at 3-4.) Plaintiff’s counsel asserts that he has repeatedly asked Plaintiff about the exact date of the letter, but Plaintiff apparently cannot remember the exact date. (Pl.'s Opp'n at 1.) Notwithstanding counsel’s unsuccessful attempts to determine a more definite date, the Court finds that Plaintiff has not provided an appropriate answer to Interrogatory No. 8. Although the interrogatory asked for an exact date, Plaintiff’s answer did not even indicate the specific month in which the letter was prepared. Plaintiff has therefore not answered the interrogatory “fully,” as Rule 33 requires. FED. R. CIV. P. 33(b)(3). Given the centrality of the letter to Plaintiff’s claims and S&B’s defenses, the Court will order Plaintiff to respond to Interrogatory No. 8 with the most precise date possible or make an attestation under oath that he does not recall the exact date he sent the letter. 2. Interrogatory No. 11 In Interrogatory No. 11, S&B asked Plaintiff to identify every machine or device he used to prepare any written communication to S&B and to determine whether a copy of that communication still existed on the machine or device. (Def.'s P. & A. at 4.) Plaintiff answered by claiming (1) a letter to S&B was written on “Moe[’s]” computer in Hyattsville, (2) Plaintiff did not know the location of Moe or the computer, and (3) Plaintiff’s former counsel had a receipt of the fax transmission. (Id.) S&B argues that Plaintiff must submit more information about the letter, Moe’s computer, and any fax machines that Plaintiff used to fully respond to the question. (Id.) Plaintiff’s counsel asserts that he has repeatedly asked Plaintiff for more information on these details, but Plaintiff apparently does not remember any of this information. (Pl.'s Opp'n at 1.) However, the Court finds Plaintiff’s answer to Interrogatory No. 11 insufficient to satisfy the standard of Rule 33. It is difficult for the Court to believe that Plaintiff’s answer is completely “true, explicit, responsive, complete, and candid” under the circumstances. Equal Rights Ctr., 246 F.R.D. at 32. Accordingly, the Court will order Plaintiff to answer Interrogatory No. 11 more completely and precisely or make an attestation under oath that he does not recall any more specific details about Moe, the computer, or the fax. 3. Interrogatory No. 15 and Interrogatory No. 16 In Interrogatory No. 15 and Interrogatory No. 16, S&B asked Plaintiff to identify each section of the FDCPA that Plaintiff contends required S&B to provide specific information before foreclosing on the property. (Def.'s P. & A. at 5.) Plaintiff objected to both of these interrogatories on the ground that they asked for a legal conclusion. (Id.) S&B claims that Plaintiff’s objection is baseless. (Id.) Federal Rule of Civil Procedure 33 explains that “[a]n interrogatory is not objectionable merely because it asks for an opinion orcontention that relates to fact or the application of law to fact.” FED. R. CIV. P. 33(a)(2). Given the permissive standard of Rule 33 and the fact that Plaintiff’s claims are based on alleged violations of the FDCPA, the Court finds Plaintiff’s objections to be without merit. Accordingly, the Court will order Plaintiff to fully and completely answer Interrogatory No. 15 and Interrogatory No. 16. B. Plaintiff’s Production of Documents S&B further contends that Plaintiff has not produced a sufficient response to its document request for several reasons. (Def.'s P. & A. at 5.) First, S&B argues that Plaintiff’s response to sixteen of twenty requests for document production were insufficient because they indicated that Plaintiff would provide the documents when Plaintiff’s former counsel agreed to relinquish possession of the documents. (Id.) Federal Rule of Civil Procedure 34permits a requesting party to ask for production of documents within the “responding party’s possession, custody, or control.” FED. R. CIV. P. 34(a)(1). This Circuit deems a responding party to have control of responsive documents when they are in his possession or when he has a legal right to obtain them. United States ITC v. ASAT, Inc., 411 F.3d 245, 254 (D.C. Cir. 2005); Walls, 250 F.R.D. at 50; Kifle v. Parks & History Ass'n, No. 98-00048, 1998 U.S. Dist. LEXIS 22250, at *3-4 (D.D.C. Oct. 15, 1998) (quotingTavoulareas v. Piro, 93 F.R.D. 11, 20 (D.D.C. 1981)). Plaintiff’s Memorandum in Opposition suggests that Plaintiff now has the entire file of his former counsel in his possession. (Pl.'s Opp'n at 2.) Even if Plaintiff does not have actual possession of all the relevant documents, he certainly has a legal right to obtain them from his former counsel. Accordingly, the Court will order Plaintiff to produce any responsive documents that he has not already produced to S&B. *4 Second, S&B argues that the document production it received from Plaintiff was insufficient because the production was simply a package of documents from Plaintiff’s counsel without any cover page, labels, or apparent organization. (Def.'s P. & A. at 5-6.) Federal Rule of Civil Procedure 34 provides that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” See FED. R. CIV. P. 34(b)(2)(E)(i). Even when a party produces documents as they are kept in the usual course of business, it must make them “usable” to the responding party. See United States v. O'Keefe, 537 F. Supp. 2d 14, 19 (D.D.C. 2008). Under these circumstances, it does not appear that Plaintiff produced the documents according to either of the options in Rule 34. FED. R. CIV. P.34(b)(2)(E)(i). There is no indication that Plaintiff produced the documents as they were kept in the ordinary course of business and the documents did not appear to S&B to be organized or labeled in any particular manner. (Def.'s P. & A. at 5.) Even if Plaintiff did produce the documents as they were kept in the ordinary course of business, he should have at least provided S&B with some explanatory notes or categorized the documents to make them more usable. The Court will therefore order Plaintiff to produce all responsive documents to S&B in accordance with the requirements of Federal Rule of Civil Procedure 34(b)(2)(E)(i). C. Sanctions S&B contends that sanctions are necessary and appropriate in this case as a result of Plaintiff’s discovery failures. (Def.'s P. & A. at 6.) Federal Rule of Civil Procedure 37 provides: If the motion [to compel] is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. FED. R. CIV. P. 37(a)(5)(A). In addition, Federal Rule of Civil Procedure 26states “[i]f a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.” FED. R. CIV. P. 26(g)(3). Given Plaintiff’s apparent willingness to provide a non-electronic signature, his counsel’s repeated attempts to obtain more specific information from him, and the fact that Plaintiff’s former counsel apparently would not relinquish relevant documents for some time, the Court finds that Plaintiff’s discovery responses were substantially justified and that an award of expenses would be unjust. (See Pl.'s Opp'n at 1-2.) Accordingly, the Court will deny S&B’s request for sanctions. IV. Conclusion For the foregoing reasons, it is this 25th day of June, 2009, hereby ORDERED that Defendant Shapiro & Burson, LLP’s Motion to Compel Discovery and for Sanctions [49] is granted in part and denied in part; and it is further ORDERED that Plaintiff shall produce signed interrogatory responses; and it is further ORDERED that Plaintiff shall supplement his responses to Interrogatory Nos. 8 and 11 and make the appropriate attestations as indicated above; and it is further ORDERED that Plaintiff shall supplement his responses to Interrogatory Nos. 15 and 16; and it is further ORDERED that Plaintiff shall respond to S&B’s requests for document production in accordance with Federal Rule of Civil Procedure 34(b)(2)(E)(i); and it is further ORDERED that Plaintiff shall produce the above-referenced discovery by July 10, 2009. Footnotes [1] United States District Judge Henry H. Kennedy, Jr., referred disposition of all pending and future discovery-related motions or disputes in this matter to the undersigned Magistrate Judge pursuant to Local Civil Rule 72.2(a). (See Order [43] dated 02/24/09.) [2] Defendants J.P. Morgan Chase Bank and American Security Insurance Company are not involved in this motion. Plaintiff alleges that Defendant J.P. Morgan Chase Bank breached its contract with and fiduciary duty to Plaintiff while handling the foreclosure of Plaintiff’s property. (Am. Compl. [3] at 4-6.) Similarly, Plaintiff alleges that Defendant American Security Insurance Company breached its contract with Plaintiff and committed fraud while handling the foreclosure of Plaintiff’s property. (Id. at 7-8.) [3] Plaintiff’s former counsel, Lucille Saundra White, withdrew from this matter on December 12, 2008. (See Minute Order dated 12/12/08.) Plaintiff retained his current counsel, Paul D. Hunt, later in December 2008. (See Notice of Appearance dated 12/23/08.) [4] The Court denied this motion as moot. (Minute Order dated 03/31/09.)