Plaintiffs' Response to Defendants' Motion to Compel

    IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA 
TALLAHASSEE DIVISION 

JOHN HUTLEY, WITT CAMPBELL, 

Plaintiffs, 

7 TCA NO. 73-177 

GADSDEN COUNTY SCHOOL BOARD, 
et al, 

Defendants. 

PLAINTIFFS' RESPONSE TO 
DEFENDANTS' MOTION TO COMPEL 

INTERROGATORIES NUMBER 14 AND 15 

This action has been certified as a class action. While 

there is a general rule that certification of the class is 

subject to re-opening, the presumption against re-opening in the 

instant situation should be even greater than normal because the 

case has been appealed as a class action and no question was 

raised concerning the propriety of representation in that appeal. 

Secondly, the defendant has not moved to decertify the class in 

this case. 

The most important reason that Plaintiffs' objections to 

Interrogatories 14 and 15 are well-taken is that the inquiry of 

Defendant is beyond the scope of legitimate discovery. In 

In re: Toilet Seat Anti-trust Litigation, 1976-1 Trade Cases 

160,915 (ED Mich. 1976), the Court held that the plaintiffs need 

not ''prove'" their financial ability. It was held that requiring 

such proof would be beyond the requirements of Rule 23. 

In Kleinman v. Sibley, 21 F.R. Serv2d 62 (ED Pemn.) 

the judge absolutely barred any inquiry into the plaintiffs 

financial condition. He ruled that such was not relevant to 

the plaintiff's adequacy to represent the class under Rule 23(a) (4). 

In McLain v. Honeywell Information Systems, Inc., 20 F.R. 

Serv2d 1015 (D. Mass.), the Court stated that the plaintiffs 

financial resources and fee arrangements are irrelevant. The 



Court said that the only possible legitimate issue would be that 

of notice. However, in the instant case, being under subsection 

(b) (2), there is no issue of notice. 

In Sanderson. v. Winner, 507 F.2d 477 (10th Cir. 1974), the 

10th Circuit granted a writ of mandamus in ruling that the 

defendant's discovery request into plaintiff's ability to bear 

litigation expenses were irrelevant to the case. 

As to the alternative ground for the Defendants' position, 

i.e., the ability of the Plaintiffs to pay for the Defendants' 

attorney's fees if the Defendant's are successful and the position 

of the Plaintiffs is deemed frivolous, the position of the 

Defendants fails for two reasons. First, the inquiry is premature 

because the Defendants have not prevailed. Second, attorney's 

fees would only be owing to the Defendant in the situation where 

the Defendant would prevail and the Plaintiffs would be deemed 

to have been frivolous in bringing the original action. It is 

not legally sufficient for an award of attorney's fees to the 

Defendant that the Defendant merely ''prevail.! See United States 

Steel Corporation v. United States, 519 F.2d 359, 364 (3rd Cir. 

1975); Carxion«v. Yeshiva University, 535 7.24 722 (2nd Cir. 1976): 

Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975); 

see also Richardson v. Hotel Corp. of America, 332 F.Supp. 519 

(E.D. La. 1971), aff'd without published opinion, 468 F.2d 951 

(3th Cir. 1972). 

As the Defendant well knows, the NAACP Legal Defense Fund 

has been at all times represented in this case and has the ability 

to pay for all costs. There is of course no question of the 

ethical propriety of such an arrangement. ABA Committee on Ethics 

and Professional Responsibility, Informal Opinion 1361 (1976). 

INTERROGATORIES NUMBER 5, 6, 7 AND 10 

The rule of reason should apply to discovery in a case which 

is on remand. Discovery should be to assist the discovering party 

to dinf out the facts as known to the adverse party. It should 

not merely be a tool for harassing the adverse party. The 



answers to the above interrogatories are abundantly clear from 

the testimony adduced at the first trial and the legal arguments 

submitted by counsel to the United States District Court and the 

Court of Appeals. 

INTERROGATORIES 11, 12 AND 13 

The Defendant argues that the Plaintiff cannot answer an 

interrogatory with regard to election statistics by indicating 

that in point of fact they have no current knowledge. Obviously, 

there are situations in which the party from whom discovery is 

sought may have custody of certain kinds of records and they do 

of course have a duty to look at those records before stating 

that they have no knowledge. In the instant case, however, the 

defendant is speaking of records which are public in nature and 

which are in the custody of neither party. They have not cited 

any authority for the proposition that the party from whom 

discovery is sought has a legal duty to go to an independent 

agency, do research and report it as part of their interrogatory 

answers. 

POSTSCRIPT 

The Defendants, in their Motion, move this Court for a 

Motion to Compel an answer to each and every one of the sixteen 

interrogatories which they propounded to the Plaintiff. Not 

only do they move to compel, they seek an award of expenses with 

regard to that Motion to Compel. They have stated in the Request 

for Expenses that ''there can be no substantial justification for 

opposing the instant motion because plaintiff and his counsel 

have openly defied the rules of discovery." This is strong 

language. 

Faced with these facts and the letter and spirit of Local 

Rule 6(F), it is amazing that the Defendant does not even make 

any argument whatsoever as to Interrogatories 1, 3, 8, 9 and 16. 

Not having stated any grounds for their motion for these five 

interrogatories, such should be denied. Further, if one is to 

talk about blatant disregard for the rules of this Court, a 



discussion should begin with the Defendants failure to even 

discuss those five interrogatories which it still feels impelled 

to move to compel. 

Respectfully submitfed, 

* 

NJ 
KENT SFRMGGS Y: 
Attorney for Plaintiffs 
324 West College Avenue 
Tallahassee, FL 32301 

Jack Greenberg 
Charles Williams 

. Legal Defense Fund 
10 Columbus Circle 
New York, NY 10019 

ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a copy of the foregoing was mailed 

to Mr. C. Graham Carothers and Michael Pearce Dodson of Ausley, 

McMullen, McGehee, Carothers and Proctor, Post Office Box 391, 

Tallahassee, FL 32302, and to Mr. Richard J. Gardner, 201 Quincy 

State Bank Building, Quincy, FL 32351, Attorneys for Defendants, 

KENT SPRYGGS 

this: Lr dovioti. Ture 2 ~l