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Smith v. TFI Family Services, Inc.

United States District Court, D. Kansas

January 18, 2019

M. SMITH, Parent and Natural Guardian of minor, C.S., Plaintiff,
v.
TFI FAMILY SERVICES, INC., Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff's Second Motion to Compel (ECF No. 91). After careful consideration of Plaintiff's Motion and Memorandum in Support (ECF No. 92), Defendant's Response to Motion to Compel (ECF No. 95), Plaintiff's Reply (ECF No. 100), and all exhibits, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Second Motion to Compel.

         I. Background

         Plaintiff brings this action on behalf of C.S., a minor child, against Defendant TFI Family Services, Inc. Defendant is a private company that formerly contracted with the Kansas State Department of Children and Families (DCF) to provide placement services for foster children in State custody.[1] In 2008, C.S. was placed in DCF custody and referred to Defendant for placement services.[2] Defendant placed C.S. in the home of Delores and Earl Wilkins (Wilkins' Home) from October 2008 through mid-2009.[3] Plaintiff alleges C.S. suffered physical and emotional abuse while residing in the Wilkins' Home.[4]

         Based on hotline calls, reports from other foster children and reports from C.S., Plaintiff claims Defendant knew, or should have known, abuse was occurring at the Wilkins' Home, but recklessly choose to place C.S. there anyway.[5] Plaintiff further alleges Defendant has a conscious disregard for the safety of children placed in its care, as reflected by a custom and practice of making inappropriate placements in foster homes and of disbelieving reports of abuse by foster children.[6] Thus, Plaintiff claims Defendant is liable for failing to keep C.S. safe from the alleged abuse, and asserts damages under 42 U.S.C. § 1983 and state tort law.[7] Defendant denies these allegations.[8]

         Information regarding the procedural posture of this case can be found in the Court's June 8, 2018 Memorandum and Order regarding previously filed motions to quash and to compel, [9] and need not be repeated here. But, it is important to note this case was consolidated for discovery purposes with a similar case filed on behalf of G.S., another foster child residing in the Wilkins' Home.[10] G.S.'s case was resolved during a joint mediation held in August of 2018.[11] Efforts at resolving C.S.'s case, however, were not as successful, and discovery remains on-going.[12]

         II. Plaintiff's Second Motion to Compel (ECF No. 91)

         A. Duty to Confer

         Plaintiff's Second Motion to Compel (hereinafter referred to as Motion) seeks an order compelling Defendant “to respond fully and in good faith” to 15 of the 17 interrogatories propounded in Plaintiff's First Set of Interrogatories.[13] As a threshold matter, the Court first considers whether the parties have sufficiently conferred regarding Plaintiff's Motion, as is required by D. Kan. Rule 37.2.[14] A review of the briefings and attached exhibits indicates counsel conferred via email and telephone in an effort to resolve Plaintiff's issues with Defendant's interrogatory answers.[15] As such, the Court is satisfied counsel have adequately conferred as required by the above-cited rule.

         B. Legal Standard

         Under Fed.R.Civ.P. 37, a party may motion the court for an order compelling answers to its interrogatories if it believes the answers given are incomplete or evasive.[16]Such is the reason for the present Motion. Plaintiff contends Defendant's answers to the 15 interrogatories in dispute are incomplete and evasive, and requests an order compelling Defendant to fully answer the same.[17] The Court has broad discretion in deciding whether to grant or deny a motion compel.[18]

         Two issues germane to Plaintiff's Motion are Plaintiff's use of contention interrogatories and Defendant's answering certain interrogatories by referencing business records. Both practices are permitted under Rule 33, which governs interrogatories, and are summarized below.

         Contention interrogatories are expressly permitted by Rule 33(a), which states an interrogatory “is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. . . .”[19] Contention interrogatories are designed to “narrow and define issues for trial and to enable the propounding party to determine the proof required to rebut the respondent's position.”[20]

         Rule 33(d) also expressly allows a party to answer an interrogatory by referencing business records already produced if “the burden of deriving or ascertaining the answer will be substantially the same for either party” and the records are specified “in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.”[21] The purpose of this rule is to relieve a party from “having to engage in burdensome or expensive research into [its] own business records in order to give an answer” where the burden of ascertaining the information would be same on the interrogating party.[22]

         To comply with Rule 33(d), “the respondent must thus specifically designate what business records answer each interrogatory; such records must contain the information sought by the interrogatory; and the burden of deriving the answer from them must be substantially the same for the party seeking the information as for the respondent.”[23] In other words, a party does not comply with Rule 33(d) by merely referring another party to a large mass of records hoping the party will be able to glean the requested information from them.[24] This meets neither the specificity nor equal burden requirements, [25] and the Court generally finds such practice unacceptable.[26]

         With these standards in mind, the Court proceeds to analyze the interrogatory disputes.

         C. Interrogatory Disputes

         Each disputed interrogatory is discussed below. The text of each interrogatory and answer quoted in the following sections is taken from a copy of the same attached as Exhibit 2 to Plaintiff's Motion.[27] However, for the sake of clarity and brevity, all references to G.S. have been removed because, as stated above, G.S.'s case has been resolved and is no longer at issue.

         1. Interrogatory No. 1a and 1b

         Interrogatory No. 1a and 1b asks Defendant to:

1a. Identify each person by initial, and year of birth who made a complaint to you based on his or her experience as a foster child in the Wilkins' home.
1b. Identify each person who made a complaint to you concerning or on behalf of a foster child placed by TFI in the Wilkins' home from 1999, through 2011.

         Defendant answered as follows:

Objection. This interrogatory is vague and ambiguous as to the term “complaint.” The term “complaint” has different meanings. For example, a foster child may have made a complaint about dinner or about rules regarding bedtime. This interrogatory is also facially overbroad as it is not limited in temporal scope. See Hammond v. Lowe's Home Centers, Inc., 216 F.R.D. 666, 675 (D. Kan. 2003). Further, “complaints” made after 10/13/2009, which do not involve plaintiffs, are not relevant to any party's claims or defenses. Plaintiffs contend they were abused by the Wilkinses or witnessed abuse while residing in the Wilkins' home and that defendant knew, or should have known, they were being abused or witnessing abuse. C.S. left the Wilkins' home 10/13/2009. Therefore, interrogatories not related to the plaintiffs after 10/13/2009 are not relevant to any party's claims or defenses.

         Two issues regarding this interrogatory can be quickly disposed of. Regarding relevancy, the Court previously ruled that incidents regarding foster children occurring after Plaintiff resided in the Wilkins' Home are relevant.[28] As to temporal scope, the Court agrees the requests are overbroad. C.S. resided in the Wilkins' Home from October of 2008 to October of 2009. The Court finds complaints made in the three years preceding through the two years subsequent to Plaintiff's residency to be a proper inquiry.[29]Therefore, the Court limits this interrogatory to the time period of 2005 to 2011.

         The main dispute here concerns the meaning of the term “complaint.” In her briefings related to the Motion, Plaintiff makes clear she is looking for complaints regarding serious incidents, in other words complaints requiring a response/action from Defendant.[30] Although not part of the above interrogatory answer, Defendant states it provided that information during the conferral process by pointing Plaintiff to critical incident reports produced in response to Plaintiffs' first request for production of documents.[31]

         Plaintiff has two issues with Defendant's reference to “critical incident reports.” First, citing Fed.R.Civ.P. 33(d), Plaintiff argues Defendant must be more specific regarding the location of such information when over 12, 000 pages of documents have been produced in this case. As stated above, responding parties cannot, under the guise of Rule 33(d), generally refer to a mass of records.[32] Responding parties must specifically identify in their interrogatory answers which documents contain the responsive information.[33] Otherwise, the interrogatories must be answered without referring to records.[34]

         The Court finds Defendant's general reference to “critical incident reports” does not meet Rule 33(d)'s specificity requirement. Defendant has not provided Plaintiff with bates numbers to locate the critical incident reports, let alone identify where the responsive information can be found within those reports.[35] Having reviewed documents in-camera, the Court is fully aware of the voluminous records in this case.[36]

         Second, Plaintiff argues “critical incident reports” are different than “complaints” in terms of response by Defendant. Critical incident reports require a higher level of response from Defendant and must be reported to the State for investigation. Complaints, on the other hand, are only reviewed internally by Defendant. Thus, per Plaintiff, the interrogatory covers incidents of harm occurring in the Wilkins' Home that may not have been reported to the State.

         Based on the above, the Court therefore construes the word “complaint” to encompass serious incidents requiring an internal response/action from Defendant, but which fell short of being reported to the State.

         For the above reasons, Plaintiff's Motion regarding Interrogatory 1a and 1b is GRANTED IN PART AND DENIED IN PART. Within 30 days from the date of this Order, Defendant shall provide Plaintiff with a list identifying persons who made serious complaints about treatment of foster children occurring in the Wilkins' Home from 2005 to 2011. Serious complaints encompass complaints which required an internal response or action from Defendant, but fell short of being reported to the State. If Defendant chooses to answer by referencing business records per Rule 33(d), Defendant must identify specifically which documents contain the answer to the interrogatory. Those documents should be identified by specific bates numbers.[37] That is, Defendant shall not answer by referencing a range of hundreds (or thousands) of pages of documents.[38] If Defendant cannot comply with this and the other requirements of Rule 33(d), it must completely answer the interrogatory without referencing business records.

         2. Interrogatory No. 2

          Interrogatory No. 2 states:

Identify all facts which you considered as material in making your decision to place C.S. in the Wilkins' Home.

         Defendant answered:

The level of care needed based on all available information about the child; proximity of placement in relation to biological family and Resource Foster Parents' ability to meet visitation needs of child; religious/spiritual beliefs and needs; any cultural/value needs of the child; behavioral/emotional needs of the child (i.e. Mental Health Services); medical needs of the child (KBH, immunizations); educational needs of the child; and supervision needs (respite and day care).
See C.S. Paper File (To be reviewed per K.S.A 38-2212): 6648-6649, 6662, 6734-6738, 6743, 6756-6761, 6766-6767, 6773-6799, 6855-6856, 7001-7003, 7006
Program Procedure Manuals: 7120-7121, 7156-7157, 7208-7210, 7243-7245, 10033-1034, 10067-10068, 10121-10123, 10156-10158.

         Plaintiff has two complaints with Defendant's answer. First, Plaintiff asserts Defendant did not supply any actual facts as requested by the interrogatory. Second, Plaintiff, as above, argues Defendant has improperly invoked Rule 33(d) and the burden is not the same on Plaintiff as on Defendant in ascertaining the answer to the interrogatory from the cited records. Plaintiff insists an unequal burden would be imposed if she is expected to examine the numerous documents cited and then speculate as to what factual information contained in the documents constituted the reason for C.S.'s placement in the Wilkins' Home.

         The Court agrees. This is a contention interrogatory seeking the material facts Defendant considered when placing C.S. in the Wilkins' Home. And, “the option to produce business records would rarely constitute an appropriate response for contention interrogatories because contention interrogatories, by their very nature, seek information regarding a party's opinion or contention. It is difficult to see how business records would provide this information.”[39] The Court finds it reasonable to expect Defendant to answer the seemingly straightforward question of why it placed C.S. in the Wilkins' Home.[40]

         Based on the above, Plaintiff's Motion regarding Interrogatory No. 2 is GRANTED. Within 30 days from the date of this Order, Defendant shall provide Plaintiff a factually sufficient response to the interrogatory.

         3. Interrogatory Nos. 3-4

         Interrogatory No. 3 asks:

Identify those documents which describe your policies and practices relating to your placement of foster children in the Wilkins' Home from 2000 through 2011, or produce a copy of the documents.

         Interrogatory No. 4 asks:

Identify those documents which describe the policies and procedures you followed in managing the Wilkins' Home from 2000, through 2011, or produce a copy of the documents.

         After objecting to the interrogatories as vague and ambiguous, Defendant responded as follows:

Subject to the foregoing objection, policies and procedures from 2000 to 2009 are produced. See Bates Nos. 7068-11889.

         Despite objecting on vague and ambiguous grounds, Defendant did not argue these objections in its Response to Plaintiff's Motion.[41] Therefore, the Court finds Defendant has not met its burden of supporting the objections, and they are overruled.[42]

         But, Plaintiff's main issue with Defendant's response to these interrogatories is instead of answering the interrogatories, Defendant cited to approximately 4, 800 pages of business records covering nearly every procedure within its organization, many of which, according to Plaintiff, are clearly not applicable to this case. As with the above interrogatories, Plaintiff argues this is improper under Rule 33(d) as it places an unequal burden to ascertain which policies and procedures Defendant relied on in placing children in foster homes and in managing foster homes during the requested time period. Additionally, it would require Plaintiff to guess at which policies and procedures Defendant applied. Defendant responds it is within its right under Rule 33(d) to refer Plaintiff to the bates numbers containing the policies and procedures.

         Because the interrogatories ask Defendant to identify documents describing various policies and procedures, the Court agrees it is appropriate under Rule 33(d) to answer by referencing business records. However, Rule 33(d) requires: (1) the burden of deriving or ascertaining the answer be substantially the same for either party; and (2) the records be specified in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.[43] The Court does not believe referencing 4, 800 pages of documents meets these requirements.[44] In fact, doing so places a tremendous burden on Plaintiff to review each page of the cited documents in search of policies and procedures that may be responsive to the interrogatories. Defendant is in the best position to determine which policies and procedures it relied on when placing children in foster homes and in managing those foster homes, and can more easily identify that information than Plaintiff can.

         But, the Court does not find Defendant's duty to sufficiently specify records under Rule 33(d) requires identification of paragraph numbers, as Plaintiff argues. It is sufficient for Defendant to reference the applicable policies and procedures by title/name and bates numbers where the responsive information can be found.[45]

         Therefore, based on the above, Plaintiff's Motion regarding Interrogatory Numbers 3 and 4 is GRANTED IN PART AND DENIED IN PART. The Court will allow Defendant to answer the interrogatories by referencing business records, but Defendant must identify by name/title which policies and procedures it relied on when placing children in foster homes and in managing those foster homes and must refence the bates numbers containing those policies and procedures. Defendant shall do so within 30 days from the date of this Order.

         4. Interrogatory No. 5

         Interrogatory No. 5 states:

Identify the person who made the final decision to place C.S. in the Wilkins' Home, and the supervisor of that person, and the supervisor's supervisor.

         Defendant answered:

This interrogatory incorrectly assumes the final decision to place C.S. in the Wilkins' home was made by one individual. A licensed social worker is required to review the placement agreement and sign off on the process matching the child with a resource home. Sherise Hall signed the placement agreement for C.S. Ms. Hall's supervisor was Vicki O'Brien, and the supervisor's supervisor was Rhonda Thompson.
See Bates Nos. 267-157 (C.S. Placement Agreement); 11890-11891 (List of Foster Children in Wilkins' Home).

         It is hard to decipher Plaintiff's issue with Defendant's answer. Plaintiff appears to argue Defendant did not correctly answer the interrogatory. According to Plaintiff, Defendant's policies state the persons who made the final decision to place C.S. in the Wilkins' Home should be employees from Defendant's “Intake” division, and that the employees identified above are not from this division. Plaintiff therefore asks this Court to compel Defendant to answer the interrogatory by providing names of employees from the “Intake” division and their supervisors.[46]

         Defendant responds it has fully answered the interrogatory. And, the Court agrees Plaintiff cannot compel Defendant to change its answer because Plaintiff does not believe the answer is correct.[47] However, the first sentence of Defendant's answer does give the Court some pause. It reads “[t]his interrogatory incorrectly assumes the final decision to place C.S. in the Wilkins' home was made by one individual.” But then Defendant goes on to identify only one individual and the supervisors related thereto. If employees other than the one listed above were involved in making the final decision to place C.S. in the Wilkins' Home, then Defendant should supplement the above answer accordingly, including providing the requested information regarding supervisors.

         For the above reasons, Plaintiff's Motion regarding Interrogatory Number 5 is GRANTED IN PART AND DENIED IN PART. Defendant will not be compelled to identify employees (and their supervisors) from the “Intake” division if none of those employees made the final decision regarding C.S.'s placement. If, however, Defendant is aware of any other employees involved in making the final decision regarding C.S.'s placement, then Defendant should supplement its answer within 30 days of the date of this Order with the names of those employees, their supervisors, and their supervisors' supervisors.

         5. Interrogatory No. 6

         Interrogatory No. 6 asks Defendant to “[i]dentify each TFI employee and the child (by initial only) to whom the employee was assigned, in charge of TFI services provided for the children placed in the Wilkins' Home from 2000 to 2011, and their supervisors, and the supervisor's supervisors, and so on.” As relevant here, Defendant answered by citing to Bates Nos. 11890-11891 and stating those documents contain “the initials of children in the Wilkins' home between 2000 and 10/13/2009, the case managers, their supervisors, and the supervisors' supervisors.” Plaintiff's issue with Defendant's answer appears to be that Defendant only provided the names of the case managers, their supervisors, and the supervisors' supervisors instead of providing names of supervisors all the way up to Defendant's CEO.[48]Defendant does not necessarily object to providing this additional information, but appears to assert that “so on” as used in the interrogatory is vague and ambiguous. While Plaintiff could have better described how many levels of supervision she was seeking in this interrogatory, the Court will not deny Plaintiff's request for additional supervisor information on this basis.

         Therefore, the Court GRANTS Plaintiff's Motion in relation to Interrogatory No. 6. Defendant shall provide the names of supervisors up to Defendant's CEO within 30 days of the date of this Order. Additionally, in its Response to Plaintiff's Motion, Defendant indicates it will supplement its answer to include information up through 2011.[49]If Defendant has not yet supplemented its answer, it shall do so within 30 days of the date of this Order.

         6. Interrogator ...


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