Gospel Houma Assembly Church v. IFG Companies

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GOSPEL HOUMA ASSEMBLY CHURCH * CIVIL ACTION

VERSUS * NO. 22-1989

IFG COMPANIES, ET AL. * SECTION “A” (2)

ORDER AND REASONS

Pending before me is Defendant Burlington Insurance Company’s Motion to Compel. ECF

No. 33. The motion was scheduled for submission on Wednesday, October 25, 2023. Plaintiff failed

to file a timely Opposition Memorandum but was granted leave to file its Opposition after the

deadline. ECF No. 42. Defendant filed a Reply. ECF No. 45. No party requested oral argument in

accordance with Local Rule 78.1, and the court agrees that oral argument is unnecessary.

Having considered the record, the submissions and arguments of counsel, and the applicable

law, and finding that the motion has merit, Defendant’s motion is GRANTED for the reasons set forth

herein.

I. BACKGROUND

Plaintiff filed suit to recover for losses incurred as a result of Hurricane Ida as well as extra-

contractual damages and attorneys’ fees, alleging bad faith, failure to properly adjust the loss and

underpayment of insurance proceeds. ECF No. 1. The June 8, 2023 Scheduling Order set a trial date

of January 29, 2024. ECF No. 26. Defendant asserts that he issued written discovery to Plaintiff on

April 4, 2023. ECF No. 33-1 at 2. After holding two Rule 37 conferences with regard to alleged

deficiencies, Plaintiff supplemented its responses and production on July 21, 2023. Id. at 3.

According to movant, Plaintiff’s responses reflect improper objections and thousands of pages of

disorganized documents. Id. at 4-22. Movant thus seeks full and complete responses, without

equivocation and obfuscating objections.

Plaintiff responds by indicating that it has now delivered supplemental responses, which it

contends moots many of the issues raised by Defendant. ECF No. 42. Plaintiff continues to urge

objections to Interrogatory No. 19 seeking the name of any person who performed service or repairs

since August 1, 2008 through August 29, 2021 (relevance and overbreadth) and Requests for

Production Nos. 13 (burden of producing list of gifts to church), 15 (relevance and overbreadth), 21

(relevance of subsequent policy), 23 (relevance of utility records and proportionality given absence

of business interruption claim), 43-47 (relevance and proportionality). Id. at 4-10.

In Reply, Defendant concedes that Plaintiff’s responses have mooted many issues, but there

remain issues with regard to Interrogatory Nos. 9 and 19 as well as Requests for Production Nos. 13,

15, 21, 23, 43-47. ECF No. 45. In addition, Defendant objects that Plaintiff failed to provide the

required verification. Id. at 8. Accordingly, movant seeks an order compelling Plaintiff to respond

fully to these discovery requests and submit a verification.

II. APPLICABLE LAW

A. Duties in Responding to Discovery Requests

A party served with written discovery must fully answer each request to the full extent that it

is not objectionable and affirmatively explain what portion of an interrogatory or document request

is objectionable and why, affirmatively explain what portion of the interrogatory or document request

is not objectionable and the subject of the answer or response, and explain whether any responsive

information or documents have been withheld.1 “Discovery by interrogatory requires candor in

responding. . . . The candor required is a candid statement of the information sought or of the fact

that objection is made to furnishing the information.”2

1 Lopez v. Don Herring Ltd., 327 F.R.D. 567, 580 (N.D. Tex. 2018) (citation omitted).

2 Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616–17 (5th Cir. 1977).

Although a party responding to interrogatories is not required to make an extensive

investigation in responding to an interrogatory, it must review all sources of responsive information

reasonably available and provide the responsive, relevant facts reasonably available.3 Pursuant to

Rule 33(d):

If the answer to an interrogatory may be determined by examining, auditing,

compiling, abstracting, or summarizing a party's business records (including

electronically stored information), 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 readily as the responding

party could . . . .4

A reference to business records must be provided with specificity and sufficient detail; it is improper

for a party to cite such records in toto.5

The fact that an interrogatory calls for a thorough response—one that will take time and effort

to answer—does not make it improper.6 Where an interrogatory answer ‘‘‘as a whole disclose[s] a

conscientious endeavor to understand the question[] and to answer fully [that question],' a party's

obligation under Rule 33 is satisfied.”7 Although Rule 26(e) imposes an obligation to supplement

responses,8 that provision does not provide “an extension of the deadline by which a party must

3 Lopez at 579 (citing 8B WRIGHT, MILLER & MARCUS, FED. PRAC. & PROC. § 2174 (3d ed. 2013)).

4 FED. R. CIV. P. 33(c) (emphasis added).

5 KeyBank Nat’l Ass'n v. Perkins Rowe Assocs., LLC, No. 09-497, 2011 WL 765925, at *3 n.14 (M.D. La. Feb. 25, 2011)

(“Rule 33(d)(1) requires that answers using the business records option must specify the records to be reviewed in enough

detail so that the interrogating party can locate and identify them as easily as the responding party. Thus, it is improper

to direct the interrogating party to a mass of business records or offer to make all of the party's business records available.”)

(citations omitted).

6 Areizaga v. ADW Corp., 314 F.R.D. 428, 437 (N.D. Tex. 2016) (citing Burns v. Thiokol Chem. Corp., 483 F.2d 300,

307–08 (5th Cir. 1973)).

7 Id. (citing Meltzer/Austin Rest. Corp. v. Benihana Nat'l. Corp., No. 11–542, 2013 WL 2607589, at *3 (W.D. Tex. June

10, 2013) (quoting 8B WRIGHT, MILLER & MARCUS, FED. PRAC. & PROC. § 2177 (3d ed. 2010))).

8 Berenson v. Adm'r s of Tulane Univ. Educ. Fund, No. 17-329, 2017 WL 6372831, at *3 (E.D. La. Dec. 13, 2017); see

also Moore v. BASF Corp., No. 11-1001, 2012 WL 12990571, at *2 (E.D. La. May 2, 2012).

deliver” its information.9 Rather, the basic purpose of this rule is to prevent prejudice and surprise.10

Accordingly, the obligation to supplement does not excuse untimely discovery responses.

Likewise, a party must provide full and complete responses to requests for production within

thirty days after being served same unless otherwise stipulated or ordered. FED. R. CIV. P.

34(b)(2)(A). This production must occur “no later than the time for inspection specified in the request

or another reasonable time specified in the response.” FED. R. CIV. P. 26(a)(1)(A)(ii); 34(a)(1); FED.

R. CIV. P. 34(b)(2)(B).11 A party responding to discovery must produce responsive documents not

only that are within that party’s actual, physical possession, but also documents that are within the

party's constructive possession, custody or control. FED. R. CIV. P. 26(a)(1)(A)(ii); 34(a)(1). For

each request, the respondent must either state that the inspection or production will be permitted or

state with specificity the grounds for objection, including the reason. FED. R. CIV. P. 34(b)(2)(B). If

a party fails to produce documents, respond that inspection will be permitted, or permit inspection,

the party seeking discovery may, on notice to other parties and certification that the parties

participated in a Rule 37 conference in good faith, move for an order compelling an answer,

designation, production, or inspection. FED. R. CIV. P. 37(a).

B. Objections

The Federal Rules of Civil Procedure take a “demanding attitude toward objections,”12 and

courts have long interpreted the rules to prohibit general, boilerplate objections.13 When a party

9 See Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996); see also Van Baelen v.

Sabine Transp. Co., No. 00-2155, 2001 WL 474273, at *2 (E.D. La. May 2, 2001) (Clement, J.) (noting that Rule 26(e)’s

duty to supplement does not enable a party to circumvent Rule 26(a)’s deadlines or a court’s scheduling order).

10 Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir. 1994).

11 A party has “control” over documents or materials that it has the legal right to obtain even though it has no copy and

even if the documents are owned or possessed by a nonparty. Becnel v. Salas, No. 17-17965, 2018 WL 691649, at *3

(E.D. La. Feb. 2, 2018) (citations omitted); Monroe’s Estate v. Bottle Rock Power Corp., No. 03-2682, 2004 WL 737463,

at *10 (E.D. La. Apr. 2, 2004) (citation omitted).

12 8B CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2173 (3d ed. 2021).

13 See, e.g., Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Nos. 13-2809, 12-3197, 2015 WL 269051, at *3

(E.D. La. Jan. 21, 2015) (noting that an objection is boilerplate and insufficient “when it merely states the legal grounds

objects to a request for production, the “objection must state whether any responsive materials are

being withheld on the basis of that objection. An objection to part of a request must specify the part

and permit inspection of the rest.”14 Objections interposed without also indicating whether any

document or information is being withheld are improper.15 Responses must also clearly state whether

any responsive materials are being withheld and the specific basis for objecting and not producing

same.16 Further, it is improper for parties responding to discovery to provide responses with the

caveat that they are given “subject to and without waiving” objections. Courts have repeatedly

recognized that such language is improper and inconsistent with the Federal Rules.17

C. Analysis

1. Utilities:

Interrogatory No. 17:

Please state the name(s) of the Persons or entities providing utilities and other

services to the Insured Premises from August 1, 2021, through to the present,

including without limitation electricity, natural gas, water, sewerage, telephone,

cable, television, internet, pest control, landscaping, and cleaning services.

Response:

Plaintiff objects that this interrogatory seeks information that is not relevant to this

litigation, and not proportionate to the needs of the case because the burden and

expense of the requested discovery outweighs its likely benefit. Plaintiff is not

for the objection without: (1) specifying how the discovery request is deficient and (2) specifying how the objecting party

would be harmed if it were forced to respond to the request.”) (citation omitted); see also McLeod, Alexander, Powel &

Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86 (5th Cir. 1990) (simply objecting to requests as “overly broad,

burdensome, oppressive and irrelevant,” without showing “specifically how each [request] is not relevant or how each

question is overly broad, burdensome or oppressive” is inadequate to “voice a successful objection.”) (citations omitted).

14 FED. R. CIV. P. 34(b)(2)(C); Orchestrate HR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016), objs.

overruled sub nom. Orchestratehr, Inc. v. Trombetta, No. 13-2110, 2016 WL 5942223 (N.D. Tex. Oct. 13, 2016).

15 See Chevron, 2015 WL 269051 at *4 (holding that objections fall short of party’s burden when party objected based on

privilege but failed to state whether any documents were withheld or the nature of withheld documents).

16 Id. (citation omitted) (“Objections that fail to provide an appropriate basis make it difficult for the parties to even

informally discuss any alleged defects in a discovery request or response in hope of fixing the defects.”).

17 Heller v. City of Dallas, 303 F.R.D. 466, 486 (N.D. Tex. 2014) (citations omitted) (“The practice of asserting objections

and then answering ‘subject to’ and/or ‘without waiving’ the objections–like the practice of including a stand-alone list

of general or blanket objections that precede any responses to specific discovery requests–may have developed as a

reflexive habit . . . [but the practice] ‘manifestly confuses (at best) and mislead[s] (at worse), and has no basis at all in the

Federal Rules of Civil Procedure.’”).

seeking damages related to the utilities or other services identified but not limited

above. Subject to the above objection, Plaintiff uses the following utilities:

• Electricity – Entergy

• Natural gas and sewage – Terrebonne Parish Consolidated Government

• Water – Terrebonne Parish Consolidated Waterworks District #1

• Internet – A T & T

• No Telephone/Cable Services

• No Monthly Pest Control

Request for Production No. 23:

Produce all Documents Relating To utilities and other services provided to the

Insured Premises from August 1, 2021, through to the present, including without

limitation electricity, natural gas, water, sewerage, telephone, cable, television,

internet, pest control, landscaping, and cleaning services. If You are not in

possession of these records, identify the custodian of each.

Response:

Plaintiff objects that this request seeks information that is not relevant, is overly

broad as to time and subject matter and not proportionate to the needs of the case

because the burden and expense of the requested discovery outweighs its likely

benefit.

Defendant argues that utility records are necessary to determine when the insured premises were

restored to their full and typical use after the storm as is necessary because (a) Plaintiff has not

identified the dates on when it completed repairs; (b) Plaintiff’s claim includes cost for temporary

toilets, handwashing stations and power; and (c) Plaintiff seeks $250,000 damages related to its

parishioners inability to worship comfortably. ECF No. 45 at 1-2.

Plaintiff’s utility bills have no conceivable relevance to the issue of when Plaintiff returned to

its full and typical use given the fluctuation in invoices based on weather and a myriad of other issues.

Further, the request seeks the information only from August 2021 to date and thus would have no

prior monthly invoices for comparison purposes. Accordingly, the objection is sustained.

2. Contractual Damages and Repairs

Interrogatory No. 9:

State in dollars and cents the amount of Contractual Damage You contend remains

due under the Policy for each of the following coverage parts: Buildings and

Business Personal Property. For each, Identify all facts supporting the amount,

including a description and itemization of all amounts that You contend is owed.

Response:

Plaintiff objects to this interrogatory as too broad, harassing and seeks information

more properly the subject of multiple interrogatories and to the extent it seeks

information that is more properly the subject of expert testimony.

Without waiving said objection, the information requested is itemized in the King

Claims Appraisal & Consulting estimates for Building and Business Personal

Property. Plaintiff seeks $627,923.26 for additional Building and Business

Personal Property damages remaining due. Plaintiff reserves the right to

supplement.

Movant contends this response is insufficient because most of the work has been completed, thereby

rendering earlier estimates irrelevant, and it cannot discern the actual cost spent based on the

Plaintiff’s delivery of voluminous, unspecified documents that include duplicative items. ECF No.

45 at 7-8.

Plaintiff’s objections are overruled. The fundamental issue in this case is the costs to repair

the hurricane damaged property. Once actual costs have been incurred for repair, prior estimates are

no longer signifcant. Movant is entitled to a full and complete response to this question.

3. Maintenance and Renovations

Interrogatory No. 19:

State the name of any Person, contractor, or entity that has performed any service,

maintenance, construction, remodeling, or repair at the Insured Premises at any

time from August 1, 2008, through August 29, 2021, and for each, state the type of

work performed and the date on which such work was performed.

Response:

Plaintiff objects that this interrogatory seeks information that is not relevant to this

litigation, is overly broad as to time and subject matter, and not proportionate to the

needs of the case because the burden and expense of the requested discovery

outweighs its likely benefit.

Without waiving said objection, there was no damage to the buildings, structures,

or items thereon. Regular maintenance was performed by volunteer church

members. Plaintiff has not keep [sic] a list.

Plaintiff did have solar panels installed on the property in approximately 2020 by

Powergen.

Request No. 15:

Produce any and all estimates, bids, quotes, proposals, invoices and permits for

construction, renovation, remodeling, maintenance, and/or repair of the Insured

Premises from January 1, 2008 to August 28, 2021.

Response:

Plaintiff objects that this request is overbroad as to time and not proportionate to

the needs of the case because the burden and expense of the requested discovery

outweighs its likely benefit. Subject to that objection, counsel learned recently that

there are documents for solar panel installation made in 2020 but has not received

these documents yet.

Movant argues that pre-existing conditions and the design and installation of the roof and solar

panels are at issue. Thus, the maintenance, construction, and repairs are relevant and proportional and

it is entitled to the identity of those performing maintenance or other work to assess pre-storm

condition. It argues the church was built in 2008 and the school was built in 2012 and therefore it is

entitled to records from these dates, but agrees to limit maintenance records to five years before the

storm. ECF No. 45 at 3-4.

Production of every document relating to construction, repair or maintenance from 2008 to

date is overly burdensome and disproportional to the needs of this case. Presumably Defendant

inspected the property before insuring it and thus would be familiar with its condition at the onset of

policy coverage. Maintenance and repair documentation from January 1, 2019 through date is

sufficient to provide relevant information regarding ongoing maintenance and repairs before and after

the hurricane.

4. Funds from Other Sources

Request No. 13:

Produce all Documents that evidence the amount of money or other goods or

services you received from any source since August 29, 2021 in connection with

any damage to the Insured Premises, including but not limited to insurance

proceeds, public assistance such as FEMA or from any other governmental agency,

donations of time, equipment, and/or services, etc.

Response:

See previously produced documents bates labeled as BW-GOSPEL-000303 and

000317. Plaintiff has received donations in services from members of the church,

but does not have records of this beyond what has already been produced in

discovery. Plaintiff did not receive any public assistance related to Hurricane Ida.

Movant argues that Plaintiff’s production does not include any documentation regarding donations

from church members for time, labor or materials since August 29, 2021. It seeks an order

compelling Plaintiff to produce same and identify by bates number the responsive documents.

A party responding to a Rule 34 request must either 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.” FED. R. CIV. P. 34(b)(2)(E)(i). This rule is intended to prevent parties from hiding “a needle

in a haystack” and to minimize the costs associated with discovery.18 Regardless of which option is

taken, Rule 34 requires the producing party to turn over the documents “in an organized,

comprehensible arrangement—either by specifically indexing each document to the request to which

18 United States v. Bollinger Shipyards, Inc., No. 12-920, 2015 WL 13529562, at *3 (E.D. La. Apr. 13, 2015) (citing

Hagemeyer N. Am., Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594, 598 (E.D. Wisc. 2004)).

it was responsive, or, failing that, by turning over the documents with the business's filing system or

other organizational structure still intact and useable by the requesting party.”19

To the extent this request seeks donations of time, material or labor related to the repair of the

property rather than simply a listing of all general donations to the church, the request is proper.

Further, Movant is entitled to have responsive documents identified by bates number for each request

for production of documents given that the documents were not produced in an organized manner.

The court may not, however, compel a party to produce documents that do not exist.”20 When

an attorney, as an officer of the court, represents that documents do not exist, the court can require a

certification or “confirmation” that the discovery at issue does not exist.21 If movant has or acquires

evidence that producing party’s responses are incomplete or that his affidavit or representations are

false, then other remedies may be sought by motion.22 Accordingly, Plaintiff must identify by bates

number documents reflecting donations of time, labor or materials to the repair of the property and

provide a certification that no further documents exist.

19 Id. (citing Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514, 522 (D.N.M. 2014). See also SEC v.

Collins & Aikman Corp., 256 F.R.D. 403, 411 (S.D.N.Y. 2009) (“The key to this dichotomy is the assumption that in

either case the documents will be organized....”)).

20 Butler v. La. Dep't of Pub. Safety & Corrs., No. 12-420, 2014 WL 3867552, at *1 (M.D. La. Aug. 6, 2014); accord

Payne v. Forest River, Inc., No. 13-679, 2015 WL 1912851, at *4 (M.D. La. Apr. 22, 2015) (“The court cannot order the

production of documents that no longer exist or, despite a diligent search, cannot be found in the possession, custody, or

control of a party.”); Callais, 2018 WL 6517446 at *7 (same); Terral v. Ducote, No. 15-2366, 2016 WL 5017328, at *2

(W.D. La. Sept. 19, 2016) (same).

21 Nguyen v. La. State Bd. of Cosmetology, No. 14-80, 2016 WL 67253, at *2 (M.D. La. Jan. 5, 2016) (requiring plaintiff

to “confirm that the requested information does not exist”); see also Callais v. United Rentals N. Am., Inc., 2018 WL

6517446, at *7 (M.D. La. Dec. 11, 2018) (ordering qualified representative to provide a sworn certification that no

responsive documents exist); Brookshire v. Jackson Pub. Schs., No. 3-13-772, 2015 WL 11018443, at *1 (S.D. Miss.

May 8, 2015) (“If the document does not exist, then Defendants are to certify that the document does not exist.”); Beasley

v. First Am. Real Estate Info. Servs., Inc., No. 3-04-1059, 2005 WL 1017818, at *4 (N.D. Tex. Apr. 27, 2005)

(“[D]efendant is entitled to an unequivocal representation . . . that the documents specified in this request for production

do not exist.”).

22 Henderson v. Compdent of Tenn., Inc., No. 97-617, 1997 WL 756600, at *1 (E.D. La. Dec. 4, 1997) (denying motion

to compel based on representation that documents that do not exist and noting other remedies are available if

representation is untrue).

5. SBA Records

Request No. 43:

Produce all Documents and Communications that you have had with the U.S.

Department of Justice Small Business Administration (SBA) related to the Insured

Premises, including but not limited to inspections, photographs, interviews, loss

verification reports, letters, emails, telephone discussions, notes

(contemporaneously drafted thereto, or after), applications for disaster relief, any

decisions on such applications, loan documents, damage assessments, photographs,

inspection notes, statements, recordings, videos, requests for information,

Documents submitted to SBA related to the Insured Premises, and any other

Documents submitted or received in connection with the Insured Premises.

Response:

Plaintiff objects that this request is not relevant to this litigation, overly broad as to

time and subject matter, and not proportionate to the needs of the case because the

burden and expense of the requested discovery outweighs its likely benefit. Without

waiving said objection, after a diligent search, none in Plaintiff’s possession. No

documents are being withheld subject to the objection.

Request No. 45:

Produce a fully executed copy of the attached Certification of Identity to the U.S.

Department of Justice, which is required for the Small Business Association to

release records.

Response:

Plaintiff objects that this request is not relevant to this litigation, overly broad as to

time and subject matter, and not proportionate to the needs of the case because the

burden and expense of the requested discovery outweighs its likely benefit. The

requested document is being withheld subject to the objection.

Movant argues that SBA loan documents are relevant because they include information about the

insured premises and the SBA requires production of certain documents regarding the property’s

condition. It contends that pre-storm damage would be identified on any application, and that Plaintiff

has not explicitly stated that it made no application for SBA loan; rather, it asserts only it has no such

documents in its possession and that it did not obtain a loan. ECF No. 45 at 5.

Movant’s argument has merit. Plaintiff’s burden objection is overruled insofar as there is no

burden placed on it for Movant to obtain documents from the SBA. Accordingly, absent an express

representation that Plaintiff did not apply for an SBA loan, Plaintiff must execute and deliver the

authorization for Movant to obtain any application documents.

6. Tax Records

Request No. 44:

Produce all Documents reflecting or memorializing Your filings with the Internal

Revenue Service and/or Louisiana Bureau of Revenue from 2019 to present,

including but not limited to federal and state tax returns, annual information returns,

supporting schedules, statements and attachments. If responsive documents exist

but are not in your possession, please return of a fully executed Request for Copy

or Transcript of Tax Form (Form 4506), which is attached.

Response:

Plaintiff objects that this request is not relevant to this litigation, overly broad as to

time and subject matter, and not proportionate to the needs of the case because the

burden and expense of the requested discovery outweighs its likely benefit. The

requested documents are not in Plaintiff’s possession and a fully executed Request

for Copy or Transcript of Tax Form (Form 4506) is being withheld subject to the

objection.

Movant seeks the tax records to obtain information about capital improvements, claimed

repairs, and contributions from members that are not elsewhere available. Given that

Plaintiff objects based only on relevance and proportionality and not any privacy interest

and considering that the signing of the authorization removes any burden or expense upon

Plaintiff for the production and the potential relevance of information not elsewhere

available, Plaintiff must sign and deliver the signed authorization.

7. Financial and Telephone Authorizations

Request No. 46:

Produce a fully executed financial institution records authorization, which is

attached. Please reproduce an authorization for each financial institution from

January 1, 2021, to present, inserting in the area indicated, each institution, your

account number, and your tax identification number.

Response:

Plaintiff objects that this request is not relevant to this litigation, overly broad as to

time and subject matter, and not proportionate to the needs of the case because the

burden and expense of the requested discovery outweighs its likely benefit. The

requested document is being withheld subject to the objection.

Request No. 47:

Produce a fully executed authorization to release telephone and messaging records,

which is attached. Please reproduce an authorization for each for Person that has

been involved in the handling of your Claim and each provider from August 1,

2021, to present, inserting in the area indicated, each account holder name,

telephone numbers, and carrier/provider.

Response:

Plaintiff objects that this request is not relevant to this litigation, overly broad as to

time and subject matter, and not proportionate to the needs of the case because the

burden and expense of the requested discovery outweighs its likely benefit. The

requested document is being withheld subject to the objection.

Defendant argues that bank records are necessary to ascertain who performed maintenance and repair

work and proof of payment for storm-related repairs, which it contends is necessary because Plaintiff

has stated it does not keep a list of who performed maintenance and has not produced proof of

incurred repair costs. It argues that telephone and messaging records are necessary to address its

alleged timing of communications.

Financial information reflecting payments made and to whom same were made are relevant

to the damages proof in this case. Again, in the absence of any privacy objection and considering

that the authorization removes and burden and expense to Plaintiff, without the voluntary production

of same by Plaintiff, Defendant is entitled to an authorization to obtain copies of bank statements and

cancelled checks showing such payments. However, production of telephone and messaging records

in a simple case involving alleged disagreements as to when certain communications were made in

an insurance dispute goes far beyond proportional to the needs of the case. The responsive documents

would need to be reviewed for privilege, which renders this request disproportional to the needs of

the case. Accordingly, that request is denied.

8. Verification

Interrogatories must be “answered separately and fully in writing and under oath.” FED. R.

CIV. P. 33(b)(3). A verification requires the party to attest to the truth and accuracy of the information

and is signed under oath. FED. R. CIV. P. 33(b)(1)(B), (3) and (5). The requirement that a party sign

his interrogatory answers under oath is critical because interrogatory answers may be used only “to

the extent allowed by the Federal Rules of Evidence.” FED. R. CIV. P. 33(c). “[I]nterrogatories 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 (FED. R.

EVID. 801(d)(2)), than an answer to an interrogatory.”23 Interrogatory responses that are not signed

under oath as required are not admissible as evidence to establish lying under oath (or for any other

purpose).24

Plaintiff must deliver the required verification of its supplemental responses.

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Defendant’s Motion to Compel (ECF No. 33) is GRANTED IN PART

AND DENIED IN PART as stated herein.

IT IS FURTHER ORDERED that, within 14 days, Plaintiff must provide verified

supplemental responses to Defendant’s discovery requests.

23 Melius v. Nat'l Indian Gaming Comm'n, No. 98–2210, 2000 WL 1174994, at *1 (D.D.C. July 21, 2000) (emphasis

added); accord Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008).

24 Wagner v. Boh Bros. Const. Co., No. 11-2030, 2012 WL 3637392, at *4 (E.D. La. Aug. 22, 2012) (collecting cases).

New Orleans, Louisiana, this 2nd day of November, 2023.

rua Akl CURRAULT

UNITED STATES MAGISTRATE JUDGE

15