Davis v. District of Columbia Child and Family Services Agency,et Al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RONDA L. DAVIS, et al., :
:
Plaintiffs, : Civil Action No.: 10-1564 (RC)
:
v. : Re Document Nos.: 184, 185
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL AND DENYING
DEFENDANT’S MOTION TO DISMISS
I. INTRODUCTION
The District of Columbia, the defendant in this long-running employment discrimination
case, asks the Court to dismiss certain plaintiffs for lack of prosecution because they have not
responded to the District’s interrogatories. Because dismissal is generally a last resort and the
District has not yet asked for any alternative, milder measures, the Court denies this motion
without prejudice. The District also asks the Court to compel further interrogatory responses
from the remaining plaintiffs, a request the Court grants in part and denies in part.
II. BACKGROUND1
A. Factual Background
The District of Columbia Child and Family Services Agency (“CFSA” or the “Agency”)
exists “to ensure the safety, permanence, and well-being of abused and neglected children and to
1
The Court assumes familiarity with, and borrows factual background from, its three
previous opinions and the D.C. Circuit’s opinion. See Davis v. District of Columbia, 496 F.
Supp. 3d 303 (D.D.C. 2020); Davis v. District of Columbia, 246 F. Supp. 3d 367 (D.D.C. 2017);
Davis v. District of Columbia, 949 F. Supp. 2d 1 (D.D.C. 2013); Davis v. District of Columbia,
925 F.3d 1240 (D.C. Cir. 2019). These opinions outline in detail the facts underlying this case.
strengthen troubled families in the District.” Def.’s Resp. to Pls.’ Statement of Undisputed
Material Facts (“Def.’s Resp. Material Facts”) ¶ 1, ECF No. 171-1. CFSA experienced
significant budgetary pressure in fiscal years 2010 and 2011. “In Fiscal Year 2010 (October 1,
2009–September 30, 2010), CFSA’s local funds’ budget was reduced by $25.3 million from the
[previous year.]” Id. ¶ 8. The FY 2010 budget reduced the number of approved full-time
employees and, as a result, CFSA implemented personnel reductions to its information
technology unit and public information office. Id. ¶¶ 9–10. The D.C. Council further reduced
the funds available to CFSA in FY 2011 by $12.1 million. Id. ¶ 11. To address the reduction in
funding in FY 2011, CFSA used a reduction in force (“RIF”) with an effective termination date
of June 11, 2010. Id. ¶ 13. The RIF is the subject of Plaintiffs’ lawsuit.
The RIF resulted in the elimination of 123 positions, which translated to the separation of
115 employees from the agency. Id. ¶¶ 14–15. The elimination of two types of positions in their
entirety—the Social Services Assistant (“SSA”) and the Social Worker Associate (“SWA”)—
accounted for the majority of the 115 employees terminated. See id. ¶¶ 13, 22. The District
explains that the elimination of these positions resulted from the agency’s conversion of “its
workforce to the ‘team model,’ which grouped social workers with a set of skilled partners to
serve client needs together.” Def.’s Material Facts ¶ 12, ECF No. 169. According to the
District, the SSA and SWA positions were “no longer needed under the new model.” Id. ¶ 13.
Though the exact percentages are disputed, Plaintiffs object to the elimination of these positions
Nevertheless, the Court highlights the factual and procedural background relevant to the pending
motions, including by repeating some of the background found in previous opinions. Because
the Court’s and the D.C. Circuit’s decisions have significantly narrowed the scope of this case,
and because the pending motions pertain only to procedural and discovery issues, the Court will
keep its review of the factual background brief.
2
because, according to their calculations, 98 percent of the eliminated SSAs and eleven of the
thirteen eliminated SWAs were African-American. Def.’s Resp. Material Facts ¶¶ 23–24.
B. Procedural History
Plaintiffs filed their initial complaint on September 16, 2010. See Compl., ECF No. 1.
The current operative complaint is Plaintiffs’ Third Amended Complaint, filed on May 31, 2013.
See 3d Am. Compl., ECF No. 66. The Third Amended Complaint brings claims of age
discrimination pursuant to the District of Columbia Human Rights Act (“DCHRA”) and race
discrimination pursuant to Title VII and the DCHRA. See id. ¶¶ 78–105. Plaintiffs’ racial
discrimination claim based on a theory of disparate impact caused by the manner in which the
RIF was conducted is the sole remaining claim.
In 2017, this Court granted summary judgment in favor of the District on this claim
because it determined that Plaintiffs had “failed to identify a specific employment practice”
susceptible to challenge under Title VII. Davis, 246 F. Supp. 3d at 394. The Court found that
“simply pointing to a RIF generally is not sufficient” to support a disparate impact claim. Id. at
395 (citing Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1269 n.5 (8th Cir. 1987)). The Court
noted that Plaintiffs’ expert “analyzed the agency-wide termination rates for African Americans”
and that she “analyzed the RIF as if every employee stood an equal chance of termination.” Id.
at 396 (emphasis in original). Because Plaintiffs did not more specifically identify the
employment practice for the observed statistical disparities, the Court granted summary
judgment for the District. Id. at 397.
The D.C. Circuit reversed this Court’s decision on this issue. Davis, 925 F.3d at 1254.
The court explained that “[d]isparate impact analysis is ‘no less applicable to subjective
employment criteria than to objective or standardized tests.’” Id. at 1249 (quoting Watson v.
3
Fort Worth Bank and Tr., 487 U.S. 977, 990 (1988)). For this reason, “[a]n employer’s
undisciplined system of subjective decisionmaking [can have] precisely the same effects as a
system pervaded by impermissible intentional discrimination.” Id. (quoting Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 355, (2011)). The court stated that “[t]here is no mystery in this
case as to the layoff practices plaintiffs challenge: the Agency’s choices to (a) target the SWA
and SSA job categories for elimination; and (b) allow managers to make putatively
individualized, discretionary and subjective choices of which positions to winnow from other
units.” Id. at 1249–50. In other words, “[w]hat is at issue here is not a RIF in the abstract . . .
but the means by which the Agency implemented it.” Id. at 1243. Noting that the District
explained that CFSA did not use uniform criteria to select positions for termination, the court
stated “[a]s the Agency itself describes it, the procedures for culling jobs fit Watson’s description
of ‘an employer’s undisciplined system of subjective decisionmaking’ as to which ‘it is difficult
to see why Title VII’s proscription against discriminatory actions should not apply.’” Id. at 1250
(quoting Watson, 487 U.S. at 990–91). Accordingly, the court remanded to determine whether
“plaintiffs clear the statistical hurdle” of making out a prima facie case in light of the identified
employment practices. Id. at 1253.
On remand, after review of renewed motions for summary judgment and competing
expert analyses, this Court held that Plaintiffs had cleared this hurdle. Plaintiffs’ expert’s
analysis showed “that the processes by which CFSA implemented the RIF—the challenged
employment practices identified by Plaintiffs and the D.C. Circuit—disproportionately impacted
African Americans.” Davis, 496 F. Supp. 3d at 318 (D.D.C. 2020). Thus, the Court denied the
District’s motion for summary judgment and the parties commenced discovery on the District’s
defense of business necessity. Min. Order of November 17, 2020.
4
During this discovery phase, the District served its First Set of Interrogatories and
Requests for Production. Def. District of Columbia’s First Set of Interrogs. and Reqs. for
Produc. (“Defendant’s Interrogatories”), ECF No. 184-4. These “primarily seek to determine
whether [P]laintiffs intend to challenge the District’s basis for terminating positions in those six
areas as well as to determine whether plaintiffs intend to argue that the District terminated those
positions despite the availability of other, less discriminatory options that would have equally
advanced the District’s objectives.” Def.’s Mem. Supp. Mot. Compel (“Mem.”) at 4 , ECF No.
184-1. As of September 7, 2021, the District had received responses from sixteen plaintiffs. Id.
at 2. But four of these responses were unverified, and, according to the District, all of them were
incomplete. Id. The District identified a list of twenty Plaintiffs who had not responded at all,
months after service of the interrogatories. Id.
Thus, on September 7, the District moved to dismiss these twenty non-responsive
plaintiffs for lack of prosecution and to compel full responses from the others pursuant to Federal
Rules of Civil Procedure 37 and 41(b). Def.’s Mot. Dismiss for Lack of Prosecution and Mot.
Compel, ECF Nos. 184, 185.2 While the motion was pending and before the September 17, 2021
close of discovery, eleven additional plaintiffs responded to Defendant’s Interrogatories. Pls.’
Opp’n Def.’s Mot. Compel and Mot. Dismiss (“Opp’n”) at 11–12, ECF No. 189. After the close
of discovery, six more plaintiffs responded. Id. at 12. Also, the District apparently had
inadvertently included one plaintiff, Carla Johnson, on its list of non-responsive plaintiffs even
2
ECF Nos. 184 and 185 appear to be identical motions seeking both forms of relief.
5
though she had responded back in May.3 Id. at 15.4 All told, of the twenty plaintiffs whose
claims the District moved to dismiss, only four have still not responded to Defendant’s
Interrogatories: Clarence Evans, Angela Khan Thomas, Celciel Moore, and Wanda Williams. Id.
at 16. In its reply brief, the District pursues its motion to dismiss only insofar as it relates to
these four non-responsive plaintiffs. Def.’s Reply Supp. Mot. Compel and Mot. Dismiss
(“Reply”) at 3, ECF No. 190 (“[T]he Court should dismiss plaintiffs Clarence Evans, Angela
Khan Thomas, Celciel Moore, and Wanda Williams for failure to prosecute this action.”).
Representing 38 of the 42 plaintiffs who remain in the action, including the four non-
responsive plaintiffs, attorney Aderson B. Francois filed an opposition to the District’s motion to
dismiss and motion to compel. Opp’n at 13–14. The Court will refer to the 38 plaintiffs
represented by Francois as the “Francois Plaintiffs.” The remaining four plaintiffs, Cynthia
Dudley, Karone Gray, David Hailes, and Lorraine Kelly, are represented by Donald Temple, and
have not responded to the District’s motion to dismiss and to compel. The Court will refer to
these plaintiffs as the “Temple Plaintiffs.”
3
Although it is true that Plaintiffs’ first set of responses to Defendants’ Interrogatories
included answers from Carla Johnson, she did not sign this submission alongside the other
responding plaintiffs in the verifications section. Plaintiffs’ Objections & Responses to
Defendant’s First Set of Interrogatories and Requests for Production of Documents, ECF No.
184-4 at 12–14. Nonetheless, Defendants do not appear to pursue their motion to dismiss insofar
as it relates to Carla Johnson or to move to compel verified responses from her (in contrast to
other plaintiffs). Mem. at 14 (requesting an order compelling verified responses with respect to
Cynthia Dudley, Karone Gray, David Hailes, and Lorraine Kelly); Def.’s Reply Supp. Mot.
Compel and Mot. Dismiss at 3, ECF No. 190. When counsel for Plaintiffs comply with the
Court’s order to provide more complete interrogatory responses, discussed below, they should
take care to ensure that these responses comply with all applicable rules, including the
requirement that interrogatory responses be signed under oath by the responding party. Fed. R.
Civ. P. 33(b).
4
These post-motion-to-dismiss responses apparently included some plaintiffs who had
not responded before the motion to dismiss, but whom the District nevertheless did not include
on its list of plaintiffs who should be dismissed for failure to prosecute.
6
III. ANALYSIS
A. Motion to Dismiss
The District appears to rely on three sources of authority in support of its motion to
dismiss for failure to prosecute. Federal Rule of Civil Procedure 41(b) provides that the Court
may dismiss claims when a plaintiff has failed to prosecute an action or to comply with the
Federal Rules of Civil Procedure. Local Rule 83.23 is substantially similar. D.D.C. Local Rule
83.23 (“A dismissal for failure to prosecute may be ordered by the Court upon motion by an
adverse party, or upon the Court’s own motion.”). Finally, the federal rules governing discovery
provide that the Court may dismiss an action in whole or in part if a properly served party fails to
respond to interrogatories. Fed. R. Civ. P. 37(b)(2)(A)(v), (d)(1)(A)(ii), (d)(3).
“To be sure,” the four non-responsive plaintiffs’ “‘lengthy period of inactivity’ might
‘justify dismissal under Rule 41(b)’ for failure to prosecute. Likewise, the Court could
theoretically dismiss all of [these plaintiffs’] claims as a discovery sanction under Rule 37(b)(2),
for failure to respond to [the District’s] interrogatories.” Cartagena v. Centerpoint Nine, Inc.,
303 F.R.D. 109, 114 (D.D.C. 2014) (quoting Smith-Bey v. Cripe, 852 F.2d 592, 594 (D.C. Cir.
1988)). And the non-responsive plaintiffs’ counsel’s explanation for their failure to respond—
which gestures at the fact that the case has been pending for a long time and, quite vaguely, at
the “Covid-19 pandemic”—is not persuasive or sufficient. Opp’n at 26. Still, courts applying
Federal Rules of Procedure 41(b) and 37(b) and Local Rule 83.23 generally stress that dismissal
is a “harsh” sanction and that it “is not appropriate until ‘less dire alternatives have been tried
without success.’” Cartagena, 303 F.R.D. at 114 (quoting Peterson v. Archstone Communities
LLC, 637 F.3d 416 (D.C. Cir. 2011) (internal quotation marks omitted); Wilson v. On the Rise
7
Enters., LLC, No. 16-CV-2241, 2019 WL 399821, at *4 (D.D.C. Jan. 30, 2019); Hildebrandt v.
Vilsack, 287 F.R.D. 88, 94–95 (D.D.C. 2012).
The Court has not yet tried (and the District has not yet asked for) less dire alternatives,
so the Court denies without prejudice the District’s motion to dismiss the claims of Clarence
Evans, Angela Khan Thomas, Celciel Moore, and Wanda Williams. It does, however, order
these plaintiffs to show cause within sixty days, on or before April 8, 2022, why their claims
should not be dismissed because of their non-responsiveness. If they do not comply with this
order, the Court will dismiss their claims. See Cartagena, 303 F.R.D. at 114.
B. Motion to Compel
1. Temple Plaintiffs’ Unverified Responses
The District points out that the Temple Plaintiffs did not sign their interrogatory
responses under oath. Mem. at 14; Def.’s Mot. Dismiss and Mot. Compel Ex. D (“Temple
Response”), ECF No. 184-6. These responses therefore violate Federal Rule of Civil Procedure
33(b), which provides that each party to whom an interrogatory is directed must sign its answers
under oath. The Court grants the District’s motion to compel insofar as it relates to this
shortcoming; the Temple Plaintiffs must provide signed, verified responses to Defendants’
Interrogatories in accordance with the Federal Rules of Civil Procedure within sixty days, on or
before April 8, 2022.
2. Temple and Francois Plaintiffs’ Incomplete Responses
“Interrogatories are part of the discovery process and help litigants prepare for trial by
narrowing issues and determining what evidence they will need at trial.” Barnes v. District of
Columbia, 283 F.R.D. 8, 10 (D.D.C. 2012) (citing 8B Charles Alan Wright, et al., Federal
Practice and Procedure § 2162 (3d ed. 2012)). “An interrogatory may relate to any matter that
8
may be inquired into under Rule 26(b)” and “is not objectionable merely because it asks for an
opinion or contention that relates to fact or the application of law to fact.” Fed. R. Civ. P.
33(a)(2). In turn, Rule 26(b) allows for inquiry into “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).
“Interrogatories must be answered fully with true, explicit, responsive, complete and
candid answers. The party objecting to discovery bears the burden of showing why discovery
should not be permitted, while the party seeking to compel discovery has the burden of proving
that a discovery response is inadequate.” Barnes, 283 F.R.D. at 10 (citations omitted and
cleaned up). “Evasive or incomplete answers to interrogatories are to be treated as a failure to
respond.” Id. (citing Fed. R. Civ. P. 37(a)(4)).
The District objects to Plaintiffs’ responses to Interrogatories Nos. 1, 2, 4, 5, 7, 8, 10, 11,
13, 14, 16, 17, and 22. Mem. at 8–9, 15–16. Broadly speaking, these interrogatories seek to
clarify each individual plaintiffs’ claims and ask why Plaintiffs contend that the RIF was not
consistent with business necessity. Id. The District also objects to Plaintiffs’ responses to
Interrogatories Nos. 3, 6, 9, 12, 15, and 18, which ask for information regarding Plaintiffs’
contentions that the District could have achieved its objectives through alternative, less
discriminatory methods.5 Id. at 8–9, 16–17. The District makes no mention of any of its other
5
More specifically, the District objects to the responses to these interrogatories it had
received by the time it filed its motion to compel: the [Francois] Plaintiffs’ Objections &
Responses to Defendant’s First Set of Interrogatories and Requests for Productions of
Documents, ECF No. 184-4, First Supplemental [Francois] Plaintiffs’ Objections & Responses to
Defendant’s First Set of Interrogatories, ECF No. 184-5, and the [Temple] Plaintiffs’ Objections
& Responses to Defendant’s First Set of Interrogatories and Requests for Production of
Documents, ECF No. 184-6. The sufficiency of interrogatory responses submitted by additional
Francois Plaintiffs after the District moved to compel is not before the Court. Still, the Court
notes that the Francois Plaintiff responses submitted after the District moved to compel appear to
be substantially similar to the challenged responses. Opp’n Exs. A–D, ECF Nos. 189-1–189-4.
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interrogatories in its motion or briefs, so the Court does not understand the District to challenge
Plaintiffs’ responses to these interrogatories.
To start, the District has not met its burden of showing that the Francois Plaintiffs’
responses to Interrogatories Nos. 1, 2, 4, 7, 8, 10, or 13, or the Temple Plaintiffs’ responses to
Interrogatory No. 1, were inadequate. Barnes, 283 F.R.D. at 10. Plaintiffs provided at least
some information in response to these questions. For example, Interrogatory No. 1 asks for a list
of plaintiffs alleging that they were discriminated against when the District eliminated the SSA
position. Mem. at 5. In response, the Francois Plaintiffs produced a spreadsheet listing the
position each plaintiff held at the approximate time of the RIF, id.; the Temple Plaintiffs listed
Cynthia Dudley, Karone Gray, David Hailes, and Lorraine Kelly (all of the Temple Plaintiffs).
Temple Response at 5. Defendants make no effort to explain why these responses, or any of the
Francois Plaintiffs’ responses to Interrogatories Nos. 2, 4, 7, 8, 10, or 13, are inadequate. The
Court notes that some of the responses seem perfunctory and perhaps not directly responsive, but
the District has not carried out its responsibility to “provide enough facts for the Court to
understand the dispute and . . . [to] provide a concise legal analysis explaining why as a matter of
law [it] is entitled to the discovery [it] seeks.” Barnes, 283 F.R.D. at 11 (cleaned up). Therefore,
the Court denies without prejudice the District’s motion to compel further responses from the
Temple Plaintiffs to Interrogatory No. 1 and from the Francois Plaintiffs to Interrogatories Nos.
1, 2, 4, 7, 8, 10, and 15.
The story is different with respect to Plaintiffs’ challenged responses to the remaining
interrogatories. The Francois Plaintiffs either rested on objections or said they did not have
Counsel for the Francois Plaintiffs should take care to update these responses as necessary to
make them consistent with this opinion and avoid another motion to compel.
10
relevant information instead of providing any information in response to Interrogatories Nos. 3,
5, 6, 9, 11, 12, 14, 15, 16, 17, 18, and 22. Mem. at 8–9. Other than vague references to their
complaint, the same is true of the Temple Plaintiffs’ responses to Interrogatories Nos. 2, 3, 4, 5,
6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 22. Temple Response at 6–13; see Mem. at 9.
Plaintiffs have not met their burden of justifying these non-responses.6 Barnes, 283
F.R.D. at 10. The Francois Plaintiffs brief three points in their attempt to meet this burden, but
none persuade the Court.
First, the Francois Plaintiffs argue that interrogatories seeking nondiscriminatory
alternatives to specific decisions “making up the collective process of implementing the RIF” are
irrelevant because Plaintiffs challenge the RIF as a whole, not individual District decisions
comprising it. Opp’n at 31. To evaluate this objection, it is necessary to briefly review the
burden-shifting framework that governs Plaintiffs’ Title VII claims. Once a Title VII plaintiff
identifies a specific employment practice that causes a disparate impact, “the burden then shifts
to the employer to ‘demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity.’” Davis, 496 F. Supp. 3d at 312 (quoting 42
U.S.C. § 2000e-2(k)(1)(A)(i)). “And if the employer can present evidence of business necessity,
a plaintiff may rebut by showing that there is a less-discriminatory ‘alternative employment
practice’ that would serve the employer’s legitimate business interests.” Id. (quoting 42 U.S.C.
§ 2000e-2(k)(1)(A)(ii)).
The Francois Plaintiffs’ relevance argument overreads the D.C. Circuit’s holding. It is
true that the D.C. Circuit held that Plaintiffs’ challenge to the RIF sufficiently identified a
6
The Temple Plaintiffs have not filed any response to the District’s motion to compel.
Their interrogatory responses raise similar objections to the ones the Francois Plaintiffs rely
upon, so the below analysis pertains to both sets of plaintiffs.
11
specific employment practice. Davis, 925 F.3d at 1252. But it also held that “the record makes
clear that plaintiffs’ challenge to ‘the RIF’ is shorthand for its attack on the specific processes the
Agency used in order to cut positions to meet its budget shortfall.” Id. The D.C. Circuit also
made clear that once Plaintiffs had shown a statistical disparity, “the parties [would] have an
opportunity after appropriate discovery to address whether the Agency’s execution of the
reduction in force was justified by business necessity. Justification supporting elimination or
downsizing of certain offices might at that point be seen to respond to the relevant statistical
showing.” Id. at 1253–54 (emphasis added). Thus, the D.C. Circuit repeatedly recognized the
relevance of the individual steps that, together, carried out the RIF. See, e.g., id. at 1252 (“What
calls for identification and scrutiny, and what plaintiffs challenge here, is not the Agency’s
decision to reduce its workforce, but the process the Agency used to select positions for the
chopping block.”). The District’s interrogatories seek Plaintiffs’ contentions about the business
necessity or lack thereof for specific steps taken as part of the RIF, and in turn about whether any
nondiscriminatory alternatives existed for these specific steps. See, e.g., Mem. at 6
(Interrogatory No. 3 asks plaintiffs to “[i]dentify all non-discriminatory alternatives that [they]
contend the District could have utilized in 2010 to advance its business objectives other than
eliminating the SSA position.”). These inquiries are plainly relevant to the issues remaining in
this litigation.
Second, Plaintiffs raise work product privilege objections. Opp’n at 29, 32.
Interrogatory No. 22, for example, asks Plaintiffs to “[i]dentify the principal reasons that support
[their] claim that the District lacked a business justification for conducting the reduction-in-force
that is the subject of this litigation.” Mem. at 9. The Francois Plaintiffs characterize this
question as seeking “the rationale or reasoning behind a particular litigation strategy,” which
12
“necessarily implicates [attorney] thoughts and mental impressions, in obvious violation of the
work product privilege.” Opp’n at 29. English v. Washington Metro. Area Transit Auth., 323
F.R.D. 1, 19 (D.D.C. 2017) (Meriweather, Magistrate Judge) (noting that the work product
privilege not only prohibits a party from discovering “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative,” but
also shields against inquiry into “the mental processes of the attorney”) (quoting Fed. R. Civ. P.
26(b)(3)(A) and United States v. Nobles, 422 U.S. 225, 238 (1975)). But Interrogatory No. 22,
and others like it, do not ask about legal reasoning, litigation strategy, or attorney impressions.
See, e.g., Mem. at 7 (Interrogatory No. 12 requests that Plaintiffs “[i]dentify all non-
discriminatory alternatives that [they] contend the District could have utilized to advance its
business objectives other than eliminating or reclassifying 19 positions within the Office of
Community Services’ Congregate Care and Home Study Contract Monitoring Division in
2010”). Instead, they ask Plaintiffs to identify which facts they contend show that the District
lacked business necessity or could have availed itself of methods other than those chosen during
the RIF; at most, they ask for the application of law to fact.
These sorts of inquires fall well within the permissible scope of contention
interrogatories. Fed. R. Civ. P. 33(a)(2) (“An interrogatory is not objectionable merely because
it asks for an opinion or contention that relates to fact or the application of law to fact . . . .”);
Fed. R. Civ. P. 33 advisory committee’s note to 1970 amendment (“As to requests for opinions
or contentions that call for the application of law to fact, they can be most useful in narrowing
and sharpening the issues, which is a major purpose of discovery.”); cf. Saint-Jean v. District of
Columbia, No. 08-CV-1769, 2014 WL 12792681, at *6 (D.D.C. Sept. 8, 2014) (Kay, Magistrate
Judge) (“Plaintiff seeks the facts supporting the District’s theory that the statute of limitations
13
may have run. . . . the affirmative defense has been pled, and Plaintiff is entitled to know what
facts Defendant has at this time that may support the statute of limitations theory. . . . Therefore,
the Court will order that the District answer Interrogatory 22.”). And, because they seek only
contentions about which facts support various aspects of Plaintiffs’ case, they do not implicate
the work product privilege. Barnes v. District of Columbia, 270 F.R.D. 21, 24 (D.D.C. 2010)
(“In answering contention interrogatories the party is only giving the factual specifics which the
party contends supports a claim, and this in no way impinges on the attorney’s impressions or
analysis . . . .” (citation and alteration omitted)); In re Rail Freight Fuel Surcharge Antitrust
Litig., 281 F.R.D. 1, 4 (D.D.C. 2011) (Facciola, Magistrate Judge) (“[A]ny broad claim that an
interrogatory is impermissible because it probes a party’s contentions as to how the law applies
to the facts is wrong. Such probing is perfectly permissible and does not invade the work
product privilege merely because the party’s counsel must disclose the reasoning applying the
law to the facts.”).
Third, Plaintiffs say that the District’s interrogatories asking about contentions related to
non-discriminatory alternatives are unduly burdensome and overbroad because they seek “‘each
and every fact and application of law to fact’ that support[s]” the District’s allegations. Opp’n at
33 (citation omitted). But the challenged interrogatories do not do this; rather, they identify
specific decisions related to the RIF and ask for Plaintiffs’ contentions about any alternative
practices that could have replaced these decisions. See, e.g., Mem. at 6 (Interrogatory No. 6 asks
Plaintiffs to “[i]dentify all non-discriminatory alternatives that [they] contend the District could
have utilized to advance its business objectives other than eliminating the SWA position.”).
These are not overbroad interrogatories that “track[] each allegation in an opposing party’s
pleadings, and request[] ‘each and every fact’ and application of law to fact that the opposing
14
party plan[s] to use in support of its claims.” Saint-Jean, 2014 WL 12792681 at *5–6 (citation
omitted) (compelling response to an interrogatory that asked plaintiffs to “[d]escribe the factual
basis for any affirmative defense asserted in any Answer to any complaint filed in this lawsuit by
Plaintiffs.”).
In sum, the Francois Plaintiffs have not met their burden to show that they should not
have to respond to Interrogatories Nos. 3, 5, 6, 9, 11, 12, 14, 15, 16, 17, 18, and 22, and the
Temple Plaintiffs have not done so with respect to Interrogatories Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13, 14, 15, 16, 17, 18, and 22. The Court orders the Francois Plaintiffs to provide
complete, verified responses to Interrogatories Nos. 3, 5, 6, 9, 11, 12, 14, 15, 16, 17, 18, and 22,
and the Temple Plaintiffs to provide complete, verified responses to Interrogatories Nos. 2, 3, 4,
5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 22, in a manner consistent with this opinion,
within sixty days, on or before April 8, 2022. Finally, the Court orders those plaintiffs who have
not filed any response to Defendant’s Interrogatories, Clarence Evans, Angela Khan Thomas,
Celciel Moore, and Wanda Williams, to show cause within sixty days, on or before April 8,
2022, why their claims should not be dismissed because of their non-responsiveness.
IV. CONCLUSION
For the foregoing reasons, the District’s Motion to Dismiss for Lack of Prosecution and
Motion to Compel Responses to Defendant’s First Set of Interrogatories and Requests for
Production (ECF Nos. 184, 185) is GRANTED IN PART AND DENIED IN PART without
prejudice. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: February 7, 2022 RUDOLPH CONTRERAS
United States District Judge
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