Senior United States District Judge.
In this civil action, plaintiff Atkinson Warehousing and Distribution, Inc. ("Atkinson") has sued defendant Ecolab, Inc. ("Ecolab") for breach of contract. In the complaint filed in the Circuit Court for Anne Arundel County, plaintiff Atkinson has alleged that defendant Ecolab breached a contract between the parties entered into on October 27, 1998 whereby Atkinson was to provide Ecolab with certain warehousing and distribution services. Ecolab subsequently removed the case to this Court pursuant to 28 U.S.C. § 1441(a) on the ground that diversity of citizenship exists under 28 U.S.C. § 1332(a).
Pursuant to Scheduling Orders entered by the Court, the parties have been engaging in discovery. Under the Revised Scheduling Order of May 24, 1999, depositions and all other discovery must be completed by August 19, 1999.
Presently pending is plaintiff's Motion for Sanctions for Failure to Fully Respond to Discovery or in the Alternative to Compel Responses to Discovery and for Sanctions Due to Defendant's Destruction of Evidence. That motion, together with a supporting memorandum, was served on defendant pursuant to Local Rule 104.8.a. Defendant in turn served a memorandum in opposition on plaintiff which thereafter responded with a reply memorandum. Most of the discovery and other disputes between the parties have now been resolved. Only two significant areas of difference exist for resolution by the Court, namely plaintiff's contentions (1) that defendant intentionally destroyed certain relevant evidence and (2) that defendant has refused to provide timely responses to plaintiff's "contention interrogatories." Plaintiff has also sought an award of expenses and attorneys' fees.
Following its review of the papers filed by the parties, this Court has concluded that no hearing is necessary for a decision on the pending motion. See Local Rule 105.6. For the reasons to be stated herein, plaintiff's motion for sanctions and for other relief will be granted in part and denied in part.
I
Plaintiff served on defendant some eighteen requests for the production of documents. Request No. 6 and defendant's response thereto are as follows:
REQUEST NO. 6: The original and all drafts of the Warehousing And Service Agreement and any other proposed contract or agreement prepared by Defendant and presented to Plaintiff and/or William Atkinson for review and execution.
RESPONSE TO REQUEST NO. 6: All non-privileged responsive documents Ecolab has in its possession, custody or control, if any exist, will be produced for inspection and copying. However, although Ecolab believes that at the November 3, 1998 meeting between David Macrae, William Atkinson and William Atkinson, Jr. one or more parties may have signed an Ecolab Standard Warehousing Service Agreement, such a document cannot be located.
According to plaintiff, defendant Ecolab has now admitted the loss or destruction of a signed written agreement between the parties. Plaintiff contends that this written agreement was intentionally destroyed by defendant and that sanctions should be imposed on defendant because of this destruction of evidence. Plaintiff seeks an order which would strike defendant's affirmative and other defenses and would grant plaintiff's request for a spoliation instruction to be given to the jury at the trial of this matter. On the record here, this Court concludes that plaintiffs are not entitled to this relief sought by its motion.
Parties are under a duty to preserve documents which are relevant to the subject matter of ongoing or potential litigation.Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N Y 1991); Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 593 F. Supp. 1443, 1445 (C.D. Cal. 1984). The Court may, as an exercise of its inherent powers, sanction a party for breach of this duty. Skeete v. McKinsey Co., Inc., 1993 U.S. Dist. LEXIS 9099, *8 (S.D.N.Y. July 7, 1993); E.E.O.C. v. Jacksonville Shipyards, Inc., 690 F. Supp. 995, 998 (M.D. Fla. 1988). The decision whether or not to impose sanctions under the Court's inherent powers is committed to the sound discretion of the trial court. Pressey v. Patterson, 898 F.2d 1018, 1030 (5th Cir. 1990).
Contrary to defendant's contention, if a signed written agreement between the parties allegedly existed, such existence (or non-existence) would be relevant to the issues in this case. However, whether or not one of the parties signed an Ecolab standard agreement form on November 3, 1998 has not been established by the record to date. A representative of Ecolab merely "believes" that one or more parties "may have signed" such a written agreement. Although William Atkinson, William Atkinson, Jr. and David Macrae were all apparently present at the November 3, 1998 meeting, plaintiff has not indicated in its memoranda whether or not any of these individuals have testified or will testify that a written agreement was signed at that meeting. Certainly, each of these three individuals should be expected to know whether a party may have signed a standard Ecolab service agreement at the November 3, 1998 meeting.
Plaintiff argues that "there is no question that the Agreement has been destroyed and that such destruction was intentional." Evidence of record does not in any way support this contention. Defendant's Response to Request No. 6 merely stated that the document in question "cannot be located." In its opposition to plaintiff's motion, counsel for defendant indicated that the document was not preserved because it is a form document contained on Ecolab's computer. Neither side, however, has pointed to deposition testimony or other evidence in the record explaining why (if in fact a signed agreement existed) the document in question cannot now be located. Plaintiff has not here met its burden of showing (1) that the document existed and (2) that the document was intentionally destroyed at a time when a lawsuit was perceived to be imminent. See White v. Office of the Public Defender for the State of Maryland, 170 F.R.D. 138, 147, 151 (D. Md. 1997). Plaintiff is therefore not at this time entitled to an order striking defenses or providing that a spoliation instruction must be given to the jury at the trial of this case. Depending upon the facts developed by way of discovery or at the trial, plaintiff may at a later date request that such an instruction be given if in fact pertinent evidence would support such a request.
For these reasons, the Court concludes that plaintiff is not entitled to sanctions because of defendant's alleged destruction of evidence.
II
Plaintiff's Interrogatories Nos. 2-9 are so-called "contention interrogatories." Defendant Ecolab has objected to each of these interrogatories on general boilerplate grounds. As to each such interrogatory, defendant contends that it calls for a legal conclusion and seeks information protected by the attorney-client privilege and/or the work product doctrine. There is no merit to these boilerplate objections. Properly drafted, contention interrogatories should be timely answered. Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 652-53 (D. Md. 1997).
In responding to Interrogatories Nos. 2-9, defendant Ecolab has also stated that without waiving its other objections it will provide a substantive response to each such interrogatory once the majority of discovery is complete. According to defendant, courts have permitted a party to defer responding to contention interrogatories at an early stage of the case on the basis of prematurity. See, e.g., Capacchione v. Charlotte-Mecklenburg Schools, 182 F.R.D. 486, 489 (W.D. N.C. 1998). In specific factual circumstances, however, answers to contention interrogatories should not be deferred until the end of the discovery period. In re Convergent Technologies Securities Litigation, 108 F.R.D. 328, 336 (N.D. Cal. 1985).
Under the circumstances here, this Court concludes that defendant should now respond to plaintiff's contention interrogatories. The original Scheduling Order was entered in this case on March 22, 1999. Discovery has therefore been under way for more than three months. Under the Revised Scheduling Order, all discovery must be completed by August 19, 1999. It would certainly be prejudicial to plaintiff if defendant were permitted to wait until the eve of the close of discovery to answer plaintiff's contention interrogatories. Defendant's responses might reasonably be expected to require further discovery by plaintiff, and obviously such discovery could not be undertaken if defendant answered the interrogatories shortly before the cut-off date for discovery. Certainly, counsel for defendant has by now had sufficient time to investigate the facts pertaining to plaintiff's claims in order to be able to respond to plaintiff's contention interrogatories. If, before discovery is concluded, additional facts are elicited which would require amendments or revisions to defendant's answers to Interrogatories Nos. 2-9, such answers can be supplemented.
For these reasons, the Court will grant plaintiff's motion to compel responses to Interrogatories No. 2-9.
On the record here, the Court is satisfied that plaintiff is not entitled to an award of expenses and attorneys' fees pursuant to Rule 37(a)(4)(A). Plaintiff's original motion sought broad relief, most of which was not pressed when plaintiff filed its reply memorandum. Many of plaintiff's interrogatories were too broad and burdensome. Defendant responded to them even though it had properly objected to them on the ground that they were too broad and burdensome. Under the circumstances here, an award of expenses and attorneys' fees would be unjust.
For the reasons stated, it is this ______ day of July, 1999 by the United States District Court for the District of Maryland,
ORDERED:
1. That plaintiff's motion for sanctions and for other relief is hereby granted in part and denied in part;
2. That plaintiff's pending motion is hereby denied insofar as it seeks to strike defendant's affirmative and other defenses and insofar as it seeks sanctions for defendant's alleged destruction of evidence;
3. That plaintiff's alternative motion to compel defendant to respond to Interrogatories Nos. 2-9 is hereby granted;
4. That defendant should respond to plaintiff's Interrogatories Nos. 2-9 within 15 days; and
5. That plaintiff's request for an award of attorneys' fees and expenses is hereby denied.