United States District Court, E.D. North Carolina, Western Division
T. Numbers, II, United States Magistrate Judge.
Olivia Neal was, at one point, a student in Defendant East
Carolina University's Masters in Social Work program.
After ECU terminated her from the program, she sued and
claimed that the University discriminated against her because
of a mental health condition and breach the terms of its
contract with her. The parties have engaged in discovery over
the last several months but disagree over whether Neal has
responded appropriately to some of ECU's requests. ECU
has now asked the court to compel Neal to provide additional
supplemental responses to interrogatories and requests for
admission and deem that Neal has admitted one of its requests
for admission. After reviewing Neal's responses, the
court grants ECU's motion in part and denies it in part.
general the Federal Rules allow parties to “obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case[.]” Fed.R.Civ.P. 26(b)(1). The Rules
also provide several tools to conduct discovery, including
interrogatories, requests for admission, and requests for
production of documents. See Fed. R. Civ. P. 33-36.
Inevitably, disagreements arise about whether a party has
adequately responded to a discovery request and whether the
response complies with the Rules' requirements. In such a
circumstance, the requesting party may ask the court to
compel the requesting party to comply with the Rules.
Fed.R.Civ.P. 37(a). The party resisting or objecting to
discovery “bears the burden of showing why [the motion
to compel] should not be granted.” Mainstreet
Collection, Inc. v. Kirklands, Inc., 270 F.R.D. 238, 241
(E.D. N.C. 2010). To meet this burden, the non-moving party
“must make a particularized showing of why discovery
should be denied, and conclusory or generalized statements
fail to satisfy this burden as a matter of law.”
are a couple of aspects of the Federal Rules that deserve
attention at the outset of the court's analysis of this
begin with, the Federal Rules require that a party responding
to a document request to do more than just produce those
documents that are readily accessible to it. Instead, the
responding party must produce responsive documents “in
the responding party's possession, custody, or
control[.]” Fed.R.Civ.P. 34(a)(1). The requirement that
a party must produce responsive documents that are within its
control means that sometimes the responding party will need
to obtain documents from third-parties to comply with its
discovery obligations. See Poole ex rel. Elliott v.
Textron, Inc., 192 F.R.D. 494, 501 (D. Md. 2000)
(explaining that a document is within a party's control
“[a]s long as the party has the legal right or ability
to obtain the documents from another source on
demand[.]”). For example, this court has held that
“a party has control of documents where a party's
attorney or former attorney has control, custody, or
possession of those documents.” Beach Mart, Inc. v.
L&L Wings, Inc., 302 F.R.D. 396, 411 (E.D. N.C.
is also important to remember that a party's duties
related to its discovery responses are not complete when it
serves them. The Federal Rules explain that a party
“who has responded to an interrogatory, request for
production, or request for admission ... must supplement or
correct its … response ... in a timely manner if the
party learns that in some material respect the disclosure or
response is incomplete or incorrect” unless the
supplemental information has otherwise been provided
“during the discovery process or in writing.”
Fed.R.Civ.P. 26(e). If a party fails to comply with its duty
to supplement its responses, it cannot “use that
information … to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Id. 37(c)(1).
these provisions in mind, the court will turn to each of the
disputed discovery requests.
Request for Admission
fifteenth request for admission, ECU asks Neal to admit that
she did not turn in a “final learning agreement”
assignment by the required deadline. In response, Neal states
that “[t]his is not denied; however the deadline was
waived and the learning agreement was accepted.” ECU
asks the court to address whether Neal's response
constitutes an admission.
of the Federal Rules of Civil Procedure governs requests for
admission. Unless a request is objectionable, a party must
respond by admitting the substance of the request,
“specifically deny it[, ] or state in detail why the
answering party cannot truthfully admit or deny it.”
Fed.R.Civ.P. 36(a)(4). A requesting party that is
dissatisfied with a response may ask the court to
“determine the sufficiency of an answer.”
Fed.R.Civ.P. 36(a)(6). If the court finds that a response
does not comply with Rule 36, it may “order either that
the matter is admitted or that an amended answer be
has not admitted the substance of the request, specifically
denied it, or explained why she cannot answer it. Instead,
she has chosen a hybrid approach of saying that she does not
deny the request and then attempts to justify her conduct.
Although any reader would understand what Neal is saying, her
response does not comply with the Rules of Civil Procedure.
Thus, the court orders that Request for Admission is
admitted. This does not, of course, prohibit Neal from trying
to justify her failure to submit the final learning agreement
at a later point in this proceeding.
Interrogatory 3, ECU asks Neal to explain the damages she
seeks to recover from the defendants. In her original
response, Neal stated that she “has not yet calculated
her economic monetary damages” because they depend on
an expert report “calculating the value of the MSW
degree over” time. Pl.'s Resp. to Def.'s First
Set of Discovery Reqs. at 5-6, D.E. 28-3. She also claimed
that her “non-economic damages are not presently
subject to ready calculation.” Id. In a
supplemental response served after ECU moved to compel, Neal
provided a detailed description of her direct economic
damages but continued to maintain that her economic damages
were not “subject to ready calculation” and
“will be in the discretion of the jury.”
Pl.'s Suppl. Resp. to Def.'s First Set of ...