United States District Court, W.D. North Carolina, Charlotte Division
GRAHAM C. MULLEN, District Judge.
THIS MATTER comes before the Court on Plaintiff Betty Brown's Motion to Compel and Memorandum in Support (Doc. No. 17), Defendants' Response in Opposition (Doc. No. 18), and Plaintiff's Reply Memorandum in Support (Doc. No. 19). Plaintiff has withdrawn her Motion to Compel insofar as it relates to her Request for Production of Documents. (Pl.'s Reply at 6, Doc. No. 19.) As such, that portion of her Motion is DENIED as moot. For the reasons stated below, the remainder of Plaintiff's Motion, related to Plaintiff's First Set of Interrogatories, is GRANTED insofar as it seeks to compel Defendants to specify the records that must be reviewed in accordance with Federal Rule of Civil Procedure 33(d).
I. FACTUAL BACKGROUND
Plaintiff Betty Brown was employed by Blue Cross Blue Shield offices for a total of forty-three years and retired in 2011. (Pl.'s Mem. Supp. at 2, Doc. No. 17.) Plaintiff had worked for Blue Cross Blue Shield of North Carolina ("BCBS-NC") for thirty-three years, ending in 2001, at which point she held the position of Advanced Staff Auditor. ( Id. ) In 2001, the work Plaintiff performed for BCBS-NC was obtained by Cahaba Benefit Administrators ("CBA"), an affiliate of Blue Cross Blue Shield of Alabama ("BCBS-AL"). ( Id.; Def.'s Answer ¶ 7, Doc. No. 3.) Plaintiff and other employees of BCBS-NC were offered the opportunity to and did transition into work for CBA. (Pl.'s Mem. Supp. at 2, Doc. No. 17.)
Following her transfer to CBA, Plaintiff continued to perform the tasks she had performed previously for BCBS-NC. ( Id. ) According to Plaintiff, her job performance at CBA was at all times rated satisfactory or above in her performance evaluations. ( Id. ) After her transfer to CBA, Plaintiff allegedly observed that younger employees who had transitioned at the same time as she did from BCBS-NC and other Blue Cross Blue Shield entities to CBA "were provided better wages, benefits and service awards than she was provided, in spite of the fact that some were performing the same or a similar position to hers." ( Id. ) Additionally, Plaintiff alleges that she should have been eligible for certain medical benefits and coverage for her and her family under the "Blue Cross and Blue Shield of Alabama Retiree Plan." ( Id. at 3.) According to Plaintiff, she was denied these benefits; however, Plaintiff alleges, "[t]hese benefits have been afforded to younger employees who transitioned to Blue Cross Blue Shield of Alabama." ( Id. )
On April 12, 2012, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") against the Defendants, in which she alleged discrimination on the basis of age in the terms and conditions of her employment with Defendants. (First Am. Compl. ¶ 33, Doc No. 1-3.) Plaintiff alleged in the alternative that the policies of BCBS-AL had a disparate and adverse impact on older workers in violation of the Age Discrimination in Employment Act ("ADEA"); particularly, Plaintiff alleged that BCBS-AL awarded service credit to employees who transitioned, but did not retire, for their years of service with BCBS-NC. On September 4, 2012, Plaintiff received a Notice of Right to Sue from the EEOC. ( Id. ¶ 34.)
The present discovery dispute arises from Plaintiff's First Set of Interrogatories and Requests for Production of Documents. (Doc. No. 17-1.) Plaintiff served these discovery requests on May 29, 2013, and Defendants served their responses in the beginning of July 2013. (Pl.'s Mem. Supp. at 4, Doc. No. 17.) On February 19, 2014, via facsimile and email, Plaintiff notified Defendants about certain deficiencies in their discovery responses and asked Defendants to supplement those responses. (Ex. D, Doc. No. 17-4.) According to Plaintiff, Defendants provided insufficient responses to Interrogatory Nos. 7-11. ( Id. ) Particularly, Plaintiff informed Defendants that they had not responded to Interrogatory No. 7 whatsoever. Additionally, when answering Interrogatory Nos. 8-11, Defendants exercised their right under Federal Rule of Civil Procedure 33(d) to provide documents with responsive information; Plaintiff complained to Defendants that these documents "[did] not begin to answer the interrogatories and the information requested." ( Id. )
In late February 2014, the parties made efforts to settle the matter through a mediator, Judge Carl Horn. (Defs.' Resp. Opp'n at 7, Doc. No. 18.) During this time, Plaintiff agreed with Judge Horn "to extend the time for [Defendants] to respond to the request for supplementation of discovery responses" and to "hold off filing a motion to compel while [the parties] were in settlement discussions." (Ex. D, Doc. No. 17-4.) Unfortunately, in March 2014, the settlement discussions broke down. (Defs.' Resp. Opp'n at 8, Doc. No. 18.) On March 26, 2014, Plaintiff notified Defendants that, because Defendants had not responded to Plaintiff's settlement offer, she would "go ahead and file the motion to compel... tomorrow unless [Defendants] provide[d] sufficient supplementation as requested in [Plaintiff's] February 19th letter." (Ex. D, Doc. No. 17-4.) In an email sent that same day, Defendants responded that they would "make relevant, responsive documents to be available for inspection in Birmingham, Alabama, " and that this should "resolve any discovery dispute." ( Id. ) In response to this offer, Plaintiff sent two more emails to Defendants on March 26 and March 27, 2014, asking how many documents were available for review, whether they were currently available for review, whether they were responsive to all Plaintiff's requests, and whether Defendants would be providing the requested supplemental answers to the Interrogatories in dispute. (Pl.'s Mem. Supp. at 5, Doc. No. 17.) Defendants failed to respond to these inquiries, so Plaintiff filed the instant Motion on March 31, 2014. (Pl.'s Mot. Compel, Doc. No. 17.)
Defendants have agreed to provide documents that are responsive to Plaintiff's discovery requests. Plaintiff has therefore withdrawn her Motion to Compel insofar as it relates to the Requests for Production of Documents. (Pl.'s Reply at 6, Doc. No. 19.) Thus, the remaining portion of Plaintiff's Motion relates only to Interrogatory Nos. 7-11; Plaintiff asks the Court to order Defendants "to provide full and complete responses to [the Interrogatories in dispute] and, if Defendant is seeking to utilize Rule 33(d), to comply with Rule 33(d)'s requirements in their responses." ( Id. at 5-6.) Defendants, in their Response in Opposition, maintain that their email response on March 26, 2014;-an offer to make "relevant, responsive documents" available for Plaintiff's review in Birmingham, Alabama-met the requirements of Rule 33(d). (Defs.' Resp. Opp'n at 10-11 & n.5, Doc. No. 18.) Thus, Defendants contend that the Court should deny Plaintiff's Motion as moot. ( Id. at 13.)
II. LEGAL STANDARD
Generally, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The scope of discovery permitted by Rule 26 "is designed to provide a party with information reasonably necessary to afford a fair opportunity to develop its case." United States v. Albemarle Corp., No. 5:11-00991-JM, 2013 WL 6834597, at *2 (D.S.C. Dec. 23, 2013) (citing Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983 (4th Cir. 1992)).
If a party fails to answer an interrogatory, the party seeking discovery "may move for an order compelling an answer." Fed.R.Civ.P. 37(a)(3)(B). This Rule makes clear that "an evasive or incomplete answer is to be considered... a failure to answer. The courts... have the power to compel adequate answers." Fed.R.Civ.P. 37 advisory committee's note (1970 Amendment). However, in lieu of answering interrogatories, Rule 33(d) provides the responding party "the option of choosing to answer the interrogatories by providing access to business records." U.S. Sec. & Exch. Comm'n v. Elfindepan, S.A., 206 F.R.D. 574, 576 (M.D. N.C. 2002). The Rule provides that:
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records..., and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as ...