Amended Motion to Compel Defendants to Answer Interrogatories and Produce Documents

    CRAWFORD & BLACKSHER 

ATTORNEYS AT LAW 

  

1407 DAVIS AVENUE 

MOBILE, ALABAMA 36603 

VERNON Z. CRAWFORD TELEPHONE 432-1691 

JAMES U. BLACKSHER § AREA CODE (205) 

MICHAEL A. FIGURES 

W. CLINTON BROWN, JR. 

GREGORY B.STEIN 

February 17, 1976 

Honorable Allan R. Cameron 
United States Magistrate 
United States District Court 
213 Federal Building 
Mobile, Alabama 36602 

Re: Bolden, et al. wv. City of Mobile, et al. 
Civil Action No. 75-297-P | 
  

Dear Judge Cameron: 

Today I filed an amended Rule 37 motion in the above 
styled case pursuant to the understanding of the 
hearing of February 12th. I have included the question 
regarding beer and liquor licensees solely for the 
convenience of the Court in drawing its' order. 

Sincerely, 

CRAWFORD, BLACKSHER, FIGURES & BROWN 

Ol 
J.B lacksher 

Larry Menefee 
JUB:bm 

Enclosure 

cc: Charles Arendall, Esquire 
S. R. Sheppard, Esquire 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

. SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., 

| Plaintiffs, CIVIL ACTION 

vs. 

CITY OF MOBILE, et al., NO. 75-297-P 

N
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Defendants. 

AMENDED MOTION TO COMPEL DEFENDANTS TO 
ANSWER INTERROGATORIES AND PRODUCE DOCUMENTS 
  

Plaintiffs respectfully show unto the Court as follows: 

1. On or about December 8, 1975 Plaintiffs filed 

"Plaintiffs' Third Discovery Notice" propounding questions 

“pursuant to Rule 33.and asking for production of documents 

pursuant to Rule 34. On or about January 7, 1976 Defendants 

filed answers thereto. On or about January 19, 1976 

Plaintiffs filed "Motion to Compel Defendants to Answer 

Interrogatories and Produce Documents'". A hearing was held on 

Plaintiffs’ motion to compel on Monday, January 26, 1976 

and wguinents were heard on the objections of Defendants to 

supply names of beer and liquor licensees to the Plaintiffs. 

The parties agreed to try to resolve and/or narrow the issues 

and report back to the Court by February 3, 1976. Defendants 

have supplied answers to some of the questions in Plaintiffs’ 

interrogatories and in other cases have satisfied Plaintiffs 

that there are no meaningful answers available. Plaintiffs 

deem defendants'answers insufficient to several remaining 

questions and in response to instructions of this Court, at 

a hearing on this cause held February 12, 1976, hereby amend 

 



  

their motion of January 19, 1976 so as to specify those areas 

where Defendants' response are deemed insufficient: 

2. Plaintiffs have propounded the following 

questions to the Defendants: 

4. For each section of the City of Mobile lying 

within a separate voting ward, state separately: 

a. The number of miles of unpaved streets 

within it; 

b. The number of miles of paved streets 
within it; 

c. The number of miles of streets within it 
paved for the first time in each year 
since 1965; 

d. The number of miles of streets within 
it repaved in each year since 1965; 

f. The number of miles of sewer lying within 
it: 

g. The number of miles of sewer lying 
installed within it since 1965; 

h. The number of miles street gutters 
and/or curbs within it; 

i. The number of miles of street gutters 
and/or curbs installed within it since 

1965; 

u. The number of establishments within it 
which hold licenses granted by the City 
of Mobile to sell intoxicating liquor 
for consumption on the premises; 

y. The number of street lights, of each 
kind used by the City of Mobile 
(incandescent bulbs, mercury vapor, 

florescent bulb, etc.) within it; 

z. The number of street lights of each 

kind used by the City of Mobile, installed 
within it since 1960; 

a.(i) The total amount of money expended 

for recreational facilities and 

services located or rendered within 

it for each year since 1965. 

Defendants, denying such information was available 

but offering pursuant to Rule 33(c) to make applicable records 

available, answered the above questions as follows: 

 



  

3. As to Interrogatory 4.... 

(a) Business records in the City Engineer's 
office as to interrogatories 4a, 4b, 4c, 
4d, Gh, 4i; 

(c) Business records of the Board of Water and 

Sewer Commissioners (which is not a 
department of the City of Mobile) as to - 

interrogatories 4f and 4g; 

(h) Business records of the City's Revenue 

Department as to interrogatories 4u and 

4v; 

(k) Business records of the City's Electrical 
Department as to interrogatories 4y and 4z; 

(1) Business records of the City's 
Recreation Department as to 

interrogatory a. (i). 

4. To the extent, if any, that plaintiffs’ 
interrogatories are intended to call for data, 
extracted by defendants or their counsel, in 
anticipation of trial, from business records 

maintained by the City, defendants object 

pursuant to the provisions of Rule 26(b) (3) 
of the Federal Rules of Civil Procedure. 

These answers on the part of defendants are evasive, 

incomplete and unresponsive. 

3. (a) Defendants, in their answers to interrogatories, 

rely on two separate and mutually exclusive defenses in resisting 

further discovery by Plaintiffs. First, we consider those 

instances where there are no reports or surveys substantially 

responsive to the Plaintiffs' questions and no individuals have 

sufficient knowledge to adequately respond to the Plaintiffs’ 

questions. Defendants, pursuant to Rule 33(c), apparently 

maintain that making business records available is a sufficient 

response. Plaintiffs contend that this is not sufficient. 

Moore's Federal Practice at 933.20 specifically addresses the 
  

question before the Court. Among those factors discussed in 

this paragraph for the Court to consider in determining what 

effort should be expended by the swterrogated party Plaintiffs 

wish to emphasize the following: 

1. The relevancy of these interrogatories 

has not been questioned. 

 



  

2. The basic policy of the federal rules 

favors liberal discovery. 

3. The Defendant has specifically denied 

the unresponsiveness of local government in its pleadings and 

these interrogatories are probative of this defense. These 

questions deal with basic municipal services and defendants 

would necessarily make a similar inquiry. 

4. The information sought is not equally 

available to both parties. The defendants have prepared and 

maintained these records and those employees must necessarily 

interpret them.and lend their unrecorded knowledge. 

5. The costs and burden is,to an extent, 

1/ relative to the resources of the party. 

6. Moore's at pp. 33-113-14, concludes by 

stating: 

One thing seems clear, and that is that the 
courts should not dispose of interrogatories 

on the basis of any broadside generalizations 
as to "burdensomeness' and "expense." All inter- 
rogatories are burdensome and expensive to some 

degree, and the question is just how much burden 

and expense is justified in the particular case. 

If the interrogated party has to go into the matter 

in any event, in order to prepare his own case, 

there is usually no reason why he should not 
furnish the information to his adversary; on the 
other hand, a party should not be compelled to 
prepare his adversary's case for him. -And if 

the expense is so great as to amount to oppression 

or a denial of justice, the court should work out 
some method of obtaining discovery of relevant 
matters at lesser cost. (footnotes omitted) 

(b) This Court has allowed very extensive discovery 

in this case. One set of lengthy interrogatories propounded 

by the Defendants to the Plaintiffs numbered 136 separate 

questions with more than 150 sub-questions and filled 29 pages. 
  
1 | 

37 See Moore's at pp. 33-113 quoting from 

Cinema Amusements, Inc. v. Lowe's,Inc. (D. Del. 1947) 7 FRD 
  

318, 10 FR Serv. 33.353 Case 3. ...The greatness of cost 
is not the sole criterion, for a smaller amount might be 

equally financially disastrous to an interrogated party of 
moderate means... 

 



  

Some of the Plaintiffs are aged and nearly illiterate and live 

throughout the City of Mobile. Some questions required 

substantial investigation on the part of the Plaintiffs. The 

burden on the Plaintiffs to answer these interrogatories was 

enormous. Is the City of Mobile with approximately 2,000 

employees and an annual operating budget of approximately 

twenty-eight million dollars to complain of the burden of these 

twelve questions? Mere size and the accompanying lack of 

specific knowledge by any one individual sufficient to answer 

particular questions would operate to protect all governmental 

agencies and corporations from discovery. The questions have 

been narrowed considerably and are of the utmost relevancy. We 

submit that were the Defendants to make an effort to answer 

these questions similar to the effort made by Plaintiffs £0 

answer the Defendants’ interrogatories we would obtain more 

than satisfactory answers. Defendants’ position makes Rule 

33(c) an effective barrier to discovery for parties of modest 

means. 

4. Where there are reports or surveys that are 

substantially responsive to the Plaintiffs' questions or 

individuals in the employ of the defendants have sufficient 

knowledge to adequately respond to the questions Rule 33(e¢) 

obviously dosen't apply as to the burden is not equal. There 

Defendants apparently rely on Rule 26(b) (3); as in the instance 

of beer and liquor licensees. First, it should be noted, that 

the Court is confronted with a question of "good cause" and 

not one of "work product", see Moore's pp. 26-442 for an example 

of this distinction. Plaintiffs care to emphasize that this 

information is obviously relevant and the information cannot be 

obtained from another source. It is most unlikely that Plaintiffs 

could obtain the same information as the Defendants because of 

the intimate knowledge the Defendants have of the material. It 

would be a practical and financial impossibility for the Plain- 

tiffs to duplicate such work. The fact that such information 

 



  

has already been gathered would render such effort on the part 

of the Plaintiffs to be duplicative and wasteful of time and 

money, contrary to the intent of the Fadoial Rules. This 

information would be extremely probative and beneficial to the 

Court in reaching its decision. Such information should be 

before the Court and not permitted to be secreted away. 

WHEREFORE, Plaintiffs, pursuant to Rule 37, move the 

Court to enter an order compelling the Defendants to fully 

answer the questions propounded and to produce the requested 

documents as herein specifically set forth. 

; ; Z 
Respectfully submitted this / / day of February, 1976. 

CRAWFORD, BLACKSHER, FIGURES & BROWN 
1407 DAVIS AVENUE 
MOBILE, ALABAMA 36603 

ori YL) Lin 
FU. BLACKSOER 7 
LARRY MENEFEE  V 
GREGORY B. STEIN 

  

EDWARD STILL, ESQUIRE 
SUITE 601 - TITLE BUILDING 
2030 THIRD AVENUE, NORTH 
BIRMINGHAM, ALABAMA 35203 

JACK GREENBERG, ESQUIRE 
CHARLES WILLIAMS, ESQUIRE 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, N. Y. 10019 

Attorneys for Plaintiffs 

 



  

CERTIFICATE OF SERVICE 
  
  

I do Hereby certify that on this the 17th day of February, 

1976, I served a COPY of the foregoing AMENDED MOTION TO COMPEL 

DEFENDANTS TO ANSWER INTERROGATORIES AND PRODUCE DOCUMENTS upon 

counsel of record, Charles 5 Arendall, Esquire, David Bagwell, 

Esquire, Post office Box 123, Mobile, Alabama 36601 and S. R. 

Sheppard, Esquire, City of Mobile, Legal Department, Mobile, 

Alabama 36602, by depositing same in United States Mail, 

postage prepaid. 

  

\Kttorhey fof Pfaintiffs