Opinion
No. CIV 03-1195 WPJ/ACT.
August 4, 2005
DISCOVERY ORDER CONCERNING PLAINTIFFS' MOTION FOR PROTECTIVE ORDER
Plaintiffs Rosann Williams, Kathryn Hunter, Maria Marquart and Moira Daly filed a Notice of Non-appearance for their scheduled depositions and a Motion for a Protective Order. [Docs. No. 323 and 324]. Defendants filed a Response [Doc. No. 325], but Plaintiffs did not file a Reply. The discovery from which the Plaintiffs are seeking a Protective Order are depositions, interrogatories and requests for production in aid of execution of an award of costs. The Court, having reviewed the pleadings and the law involved, DENIES the Plaintiffs' Motion for a Protective Order.
The Defendants prevailed against the four Plaintiffs in a jury trial and judgment was awarded to the Defendants. In accordance with D.N.M.LR-Civ. 54, the Clerk of the Court awarded $10,798.56 in costs to the Defendants. [Doc. No. 315]. All four Plaintiffs were taxed with the costs. Plaintiffs filed an Appeal or Objections to the Clerk's Order Settling Costs [Doc. No. 316] raising many of the same arguments that they have raised in this Motion for a Protective Order. Defendants filed a Motion to dismiss the Appeal or Objections as untimely and without merit. [Doc No. 317]. . While the District Court Judge found that the Plaintiffs did file an untimely Objection to the Clerk's Order Settling Costs, the District Court Judge exercised his discretion to consider the Plaintiff's Motion and denied the Defendants' Motion. [Doc. No. 327]. The Plaintiffs' Motion was denied on the merits. [Doc. No. 327].
Plaintiffs raise six arguments in support of their Motion for a Protective Order:
1) discovery on costs is premature because the case has been appealed to the Court of Appeals for the Tenth Circuit;
2) the costs should be apportioned among the Plaintiffs rather than having them assessed jointly and severally;
3) their counsel, Ms. Hammel, is especially busy with trials in August and any discovery should be postponed until September;
4) Plaintiff Daly is planning to file for bankruptcy protection which would necessitate separate proceedings in bankruptcy court as to her;
5) Plaintiffs are unable to pay the costs because of their lack of full-time or steady employment and limited assets; and
6) the requested discovery is overbroad.
Plaintiffs have not filed a supersedeas bond on the assessed costs while this case is on appeal. The appeal does not prevent Defendants from proceeding with discovery in aid of judgment. National Service Industries, Inc. v. Vafla Corp., 694 F. 2d 246, 250 (11th Cir. 1982). The requested discovery is not premature.
The Clerk's Order Settling Costs did not divide the costs among the four Plaintiffs. The presumptive rule is that the Plaintiffs are jointly and severally liable for all the costs unless the parties are able to show that one or more of the Plaintiffs is disproportionately responsible for the costs. Anderson v. Griffin, 397 F.3d 515, 522-523 (7th Cir. 2005). Plaintiffs have not made that showing in this Motion.
It is true that the presumptive rule may work a hardship on one or two of the Plaintiffs, especially if one Plaintiff enters bankruptcy and another one or two have no assets or income from which the costs may be collected. The presumptive rule is founded upon the twin goals of compensation to the Defendants and deterrence from creating no more costs than necessary for the trial. See, Anderson v. Griffin, supra, at 523. The deterrence factor rests on the theory that each Plaintiff should know that if he or she loses their case, that individual Plaintiff knows that he or she may have to pay all the costs. Even if there are several Plaintiffs bringing the lawsuit together, joint and several liability means that each individual Plaintiff alone may end up being responsible for the costs, especially if the other Plaintiffs enter bankruptcy, have no assets or have limited incomes. This knowledge is supposed to act as a deterrent to litigants to creating excessive pre-trial and trial costs. The specter of litigants paying costs in the event they lose their case theoretically also encourages moderation in litigation and acts as an additional incentive to pre-trial settlement.
Plaintiffs ask that if discovery is allowed to proceed, that their discovery be postponed because of their counsel's busy trial schedule. Defendants, however, point out that although Plaintiffs's counsel Ms. Hammel is particularly busy with trials in August, that Plaintiffs are represented by another counsel, Maureen Sanders, who should be able to represent them while the Plaintiffs answer interrogatories, respond to requests for production and attend their depositions. The Court finds this argument persuasive and will not order postponement of the requested discovery on the basis of lack of Ms. Hammel's availability.
Even if Plaintiff Daly does file personal bankruptcy and the allegations that the other Plaintiffs will be unable to pay the costs prove to be true, this scenario does not prevent the Defendant from pursuing their discovery. If and when Plaintiff Daly files for bankruptcy she may then notify the Defendants. Even if the Plaintiffs are ultimately unable to pay the assessed costs, the Defendants still have the right to conduct their discovery. The Defendants take the risk, like the Plaintiff did in pursuing their lawsuit, that this discovery will not be fruitful. Mere allegations do not entitle the Plaintiffs to a Protective Order.
Plaintiffs have raised general objections to the propounded interrogatories and the requests for production. Plaintiffs object to the requests of information from spouses of two of the Plaintiffs, requests of financial information from other household members, requests of financial information going back five years and requests for loan applications and car loans from the last five years. Plaintiffs ask for thirty days in which to respond to the written discovery and, if necessary, file specific objections.
Discovery in aid of collection, like discovery allowed in preparation for trial, is limited only by the requirements that it be relevant and not privileged. Fed. Rules Civ. P. 69(a) and 26(b)(1). "A judgment creditor is entitled to discover the identity and location of any of the judgment debtor's assets, wherever located." National Service Industries, Inc. v. Vafla Corp., 694 F.2d 246, 250 (11th Cir. 1982).
Plaintiffs will answer the Defendants' Interrogatories and respond to the Requests for Production within thirty (30) days from the date of the filing of this opinion. Defendants may reschedule the Plaintiffs' depositions at the parties' mutual convenience.
IT IS SO ORDERED.