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ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PETER TILTON, 

Plaintiff,

v.

THE MCGRAW-HILL COMPANIES, INC.,

et al.,

Defendants.

Case No. C06-0098RSL

ORDER GRANTING IN 

PART AND DENYING IN 

PART MOTION TO COMPEL

I. INTRODUCTION

This matter comes before the Court on plaintiff’s motion to compel (Dkt. #47). Plaintiff

alleges that defendants have failed to respond fully to his discovery requests and have refused to

provide witnesses in response to his Federal Rule of Civil Procedure 30(b)(6) deposition notice. 

For the reasons set forth below, the Court grants the motion in part and denies it in part.

II. DISCUSSION

As an initial matter, defendants have alleged that plaintiff has filed this motion for an

improper purpose, perhaps to divert the Court’s attention away from their pending motion to

dismiss. There is no evidence that plaintiff filed this motion for an improper purpose. Instead,

the parties have been unable to agree about several areas of discovery.

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1

 Counsel had additional discussions regarding discovery issues during depositions on

November 30, 2006. Those discussions, however, are not considered Rule 37 conferences

because conversations between counsel during recorded depositions are typically more about

posturing and getting one’s position on the record than a good faith effort to resolve issues.

ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 2

Plaintiff served two sets of Interrogatories and Requests for Production on August 11 and

August 23, 2006, respectively. Defendants served responses to the first set on September 11,

2006 and supplements to the same on October 13 and 19, November 6 and 10. Defendants

served their responses to the second set of discovery requests on September 22, 2006.

Plaintiff’s attorney has certified that counsel conferred in good faith prior to bringing this

motion. They were unable to resolve the issues, although they conducted a telephone

conference on November 3, 2006.1

 As set forth below, the parties continue to disagree about

numerous issues.

A. The August 11 Discovery Requests.

1. Request for Production Nos. 4, 6, 21, 22, 24, 27 and 28.

Request No. 4 seeks non-privileged communications among defendants regarding

plaintiff and/or this lawsuit. Request No. 6 seeks a copy of all articles written by defendant

Conlin and copies of “all related letters to the Editor and any critique of any of the articles

received by defendants.” Defendants have provided plaintiff with a list of articles Ms. Conlin

published in BusinessWeek and all letters to the editor related to the May 10, 2004

BusinessWeek article about plaintiff (the “article”). Requests Nos. 21, 22, and 24 ask for

documents regarding plaintiff’s admissions against interest, plaintiff’s failure to mitigate

damages, and comparative/contributory negligence. Request No. 27 seeks all documents that

support defendants’ affirmative defenses. Request No. 28 requests all of defendant Conlin’s email or other documents about plaintiff. Defendants claim that they have already produced all

documents responsive to these requests. Plaintiff objects to the responses because defendants

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2

 In a related issue, the correspondence shows that defendants produced some

supplemental documents to plaintiff without identifying to which requests they were responsive. 

Plaintiff should not have to guess. When producing documents, the parties must identify the

request to which the documents are responsive.

3

 The Court does not mean to imply that parties will always be required to provide the

Bates numbers of previously produced documents. In some cases, if only a small number of

documents have been produced, a party could, instead of providing the Bates numbers, identify

the responsive documents with sufficient particularity so as to leave no doubt as to which

documents they are referencing (for example, “August 21, 2006 letter from John Doe”). In this

ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 3

have refused to identify the previously-produced documents by Bates numbers.2

Federal Rule of Civil Procedure 34(b) states in relevant part, “A party who produces

documents for inspection shall produce them as they are kept in the usual course of business or

shall organize and label them to correspond with the categories in the request.” Plaintiff should

not be required to guess regarding which previously-produced documents defendants believe are

relevant to the requests. Defendant counters that the purpose of Rule 34 is served because

plaintiff has received the responsive documents. Defendants’ argument, if accepted, would

obviate Rule 34’s specific requirements regarding the manner of production. 

Defendants also argue that it would be unduly burdensome for them to “catalog” all of

plaintiff’s admissions against interest in response to Request No. 21. As an example, defendants

reference the e-mails they submitted with their motion to dismiss, which include approximately

one hundred pages. Although defendants claim that the e-mails are merely “the tip of the

iceberg,” they have not supported that statement. Nor have they shown that providing the Bates

numbers or re-producing the e-mails and other statements would be unduly burdensome.

Accordingly, the first time defendants produce documents, they must produce them in

one of the two manners set forth in Rule 34. If the documents are responsive to subsequent

requests and defendants choose not to produce the documents again in either of the manners set

forth in Rule 34, then they must provide the Bates numbers of the previously produced

documents.3

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case, however, where a substantial number of documents have already been produced,

defendants must provide the Bates numbers if they choose not to re-produce the documents.

ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 4

2. Request for Production No. 5.

Plaintiff seeks a copy of defendant Conlin’s and her editors’ personnel files. Defendants

responded that they have reviewed the files and determined that they contain “no discoverable

documents.” That broad contention is insufficient to satisfy defendants’ obligation to respond. 

Plaintiff specifically requested the personnel files, so defendants must specify why they should

not be required to produce them. 

Plaintiff argues that the credibility, background, and experience of Conlin and her editors

are relevant in this case. As for whether the relevance outweighs the individuals’ privacy

concerns, the Court will review the files in camera to make that determination.

Plaintiff also alleges that defendants have not yet provided a privilege log or stated that

there were no privileged documents responsive to Request Nos. 5, 18 and 19. Defendants assert

that they have provided a privilege log and stated that no documents are being withheld based on

privilege for Request Nos. 5, 18 and 19. Accordingly, it appears that those issues have been

resolved.

3. Request for Production Nos. 8 and 9.

Plaintiff has requested copies of all documents that generally and specifically

demonstrate the gross and net income (after the deduction of all related expenses) derived by

BusinessWeek for the issue in which the article was published. Plaintiff argues that how much

defendants profited from the article is relevant, but he has not explained why. The request does

not appear to be reasonably calculated to lead to the discovery of admissible evidence,

particularly because plaintiff’s damages will be measured by the harm to plaintiff, not by

defendants’ profits from the article. Plaintiff has not sought punitive damages, and they do not

appear to be available for the claims asserted. Accordingly, defendants will not be required to

produce documents in response to these requests.

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ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 5

4. Request for Production Nos. 11 and 12.

Plaintiff seeks copies of pleadings and settlements in which defendants were named as

defendants since January 1, 2001 that involved the torts asserted in this lawsuit, including breach

of contract, breach of promise, negligent infliction of emotional distress, outrage, invasion of

privacy, and negligent performance of contract. Defendants agreed to provide documents only

related to actions involving an alleged breach of a promise of confidentiality. Defendants

responded that other than this case, no lawsuits have been brought against The McGraw-Hill

Companies, Inc. involving BusinessWeek and any claims of breach of confidentiality during the

relevant time. No lawsuits have been filed against defendant Conlin, except this lawsuit, during

the relevant time.

Plaintiff counters that documents regarding lawsuits involving his other claims may be

admissible under Evidence Rule 406, which provides that evidence of the habit of a person or of

the routine practice of an organization may be relevant to prove that the conduct of the person or

organization on a particular occasion was in conformity with the habit or routine practice. 

However, the only relevant habit or practice in this case is a breach of a promise of

confidentiality. All of plaintiff’s claims and damages flow from that alleged breach. 

Accordingly, the requests for documents regarding lawsuits involving other claims are not

reasonable calculated to lead to the discovery of admissible evidence. 

5. Interrogatory No. 13 and Request for Production No. 14.

These requests ask for the identity of the web host for www.businessweek.com and all

persons involved with putting the article on the website and related documents. Plaintiff has not

explained how the requests are reasonably calculated to lead to the discovery of admissible

evidence, so the motion to compel responses to these requests is denied.

6. Request for Production No. 15.

In response to this request, which asks for the identification of people with relevant

knowledge, defendants listed approximately 70 people, including plaintiff’s counsel. Plaintiff’s

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ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 6

counsel understandably objects to his inclusion. There was no need for defendants to take this

provocative step, but at this point, the issue is not ripe for the Court’s review. Defendants have

not moved to disqualify plaintiff’s counsel as a trial witness, or suggested any other action that

would require adjudication at this time. The Court hopes that defendants will voluntarily

remedy this mistake without Court action.

7. Interrogatory No. 17 and Request for Production No. 18.

These requests seek information regarding defendants’ trial experts. The deadline for

providing the information was December 11, 2006, after plaintiff filed this motion. Defendants

were required to comply with the Court’s scheduling order and were not required to provide the

information early in response to the discovery requests.

8. Request for Production No. 19.

This request asks defendants to provide all unprivileged documents relevant to this

lawsuit. Defendants responded that they have already provided all responsive documents. 

Plaintiff argues that defendants did not identify them by Bates number. However, because the

request would arguably require defendants to list the Bates numbers of all previously produced

documents, the Court will not require defendants to provide the Bates numbers of the documents

responsive to this request.

B. The August 23 Requests for Production.

Request Nos. 1 and 2 ask for post January 1, 2000 BusinessWeek and Conlin authored

articles that refer to an anonymous source. Plaintiff asserts, “The journalistic practice of

utilizing, and respecting, anonymous sources is critical to this case.” Motion at p. 8. 

Defendants’ assertion of an undue burden is well taken. BusinessWeek articles during the

relevant time are publically available. Plaintiff is equally able to comb through the articles to

search for references to anonymous sources. Furthermore, defendants have provided plaintiff

with a list of articles that Conlin published in BusinessWeek. Accordingly, the motion to

compel an additional response to these requests is denied.

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ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 7

C. The Fed. R. Civ. P. 30(b)(6) Deposition.

On October 27, 2006, plaintiff served a Rule 30(b)(6) deposition notice on defendants,

who served their objections on November 10, 2006. Counsel conferred on November 13, 2006

but were unable to resolve certain issues. Depositions were conducted on November 29 and 30,

2006, but defendants refused to provide a witness to testify about the topics below.

1. Items 1, 5 and 6: Revenue and Advertising Information.

Item 1 seeks a witness who can testify about the income derived from the article. Items 5

and 6 seek a witness who was responsible for placing advertising on the BusinessWeek website

containing the article and who can provide information about revenue generated from

advertising accompanying the article on the website. As set forth above, plaintiff has not shown

that information about the amount of revenue generated by the article is reasonably calculated to

lead to the discovery of admissible evidence. Accordingly, the Court will not compel defendants

to produce a witness on these topics.

2. Item 2: Circulation.

This item seeks a witness to testify about the circulation of BusinessWeek (for example,

the number of printed and circulated copies, geography where it is circulated, and to whom or

what it is circulated) in general and from the May 10, 2004 article in particular. Defendants

argue that they have already provided circulation information for the issue in dispute and the 12

months ending June 2004 in response to an interrogatory. The circulation information about the

article is relevant to show how broadly the article was disseminated. Plaintiff has not shown the

relevance of circulation information for other issues or years. 

As for circulation regarding the article, plaintiff has not alleged that he needs additional

information from a live witness or identified what that information might be. Accordingly, the

Court will not compel defendants to produce a witness on this topic.

3. Item 3: Code of Ethics.

This item seeks a witness who can testify about BusinessWeek’s codes of ethics and

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4

 In his letter, plaintiff requested that the Court consider his improperly filed “Joint

Submission” on an expedited basis even though motions to shorten time have been abolished in

ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 8

guidelines. Defendant objects to providing a witness to testify regarding code provisions that

went into effect after the article was written. Although evidence of subsequent remedial

measures is generally inadmissible, it is admissible for certain purposes. Furthermore, even

though a fact witness has testified about later changes, that is not the same as producing a Rule

30(b)(6) witness to testify on behalf of the company. Therefore, defendants must produce a

witness to testify about item number 3.

4. Items 4 and 7: Website Issues.

Item 4 seeks a witness who can testify about why the article remains on the

BusinessWeek website. Item 7 seeks a witness who can testify about the number of “hits” to the

website containing the article and the identity of persons who accessed the website. 

Defendants counter that they have responded to the same inquiries in response to

interrogatories. In general, a party’s response to written discovery requests does not

automatically excuse it from its obligation to provide witnesses to testify in depositions. In this

case, however, plaintiff has not explained what, if any, additional information he seeks from the

deposition or why he needs to question a live witness about the same topics. Therefore, the

Court will not require defendants to produce a witness on these topics.

D. The Parties’ Lack of Compliance with the Local Rules.

The Court must note the parties’ continued lack of compliance with the Local Rules. It

seems that nearly every filing contains a violation of the Local Rules, and the instances are too

numerous to go unmentioned. In the most egregious example, plaintiff filed a document

captioned as a “CR 37 Joint Submission” and styled it as such, but the filing was not, in fact, a

joint submission. (Dkt. #50). Both parties then sent letters to the Court regarding the “Joint

Submission,” even though nothing in the Local Rules authorizes or contemplates submitting

arguments to the Court via letters.4

 In another example, plaintiff filed the instant 14-page

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this district.

5

 Defendants filed the declaration as a “Supplemental Statement of Authority Regarding

Defendants’ Motion to Dismiss” and stated therein, without any further explanation, that the

attached declaration “was not available” until after defendants filed their reply. (Dkt. #84).

ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 9

motion to compel, even though the Local Rules include a 12-page limit. Defendants received

permission to file 20-page memoranda in response to the motion to compel and in reply to their

motion to dismiss, but both times, they filed 21-page memoranda. In connection with

defendants’ motion to dismiss, currently pending before the Court, defendants improperly filed a

motion to file an overlength memorandum on the same day that the memorandum was due. 

Plaintiff filed an “objection” to certain evidence submitted with defendants’ reply in support of

their motion to dismiss, even though the Local Rules do not provide for such “objections” except

when filed as a proper surreply. In another egregious example, defendants recently filed a

“supplemental” declaration two weeks after the close of briefing for its motion to dismiss

without seeking permission to file the document late, without giving plaintiff any opportunity to

respond, and without showing good cause5

 for the extensive delay. The Court will not consider

that late filed declaration. 

The Court has the right to expect better from experienced civil practitioners such as the

attorneys in this case. Especially in a lawsuit where the parties are parsing the rules and ethics

of another profession (journalism), the Court has the right to expect the officers of the court to

read and follow the Local Rules and to be mindful of the oath all members of the bar took when

they received the privilege of appearing in the United States District Court. Any further

violation of the Local Rules, or of the Court’s prior orders requiring the prompt provision of

chambers’ copies, will result in the imposition of sanctions.

III. CONCLUSION

For all of the reasons set forth above, plaintiff’s motion to compel (Dkt. #47) is

GRANTED IN PART AND DENIED IN PART. The Court ORDERS defendants to provide to

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ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO COMPEL - 10

the Court, within 20 days of the date of this Order, defendant Conlin’s and her editors’

personnel files for an in camera review. The files shall be hand-delivered to the Chambers of

Judge Lasnik, not filed with the Clerk’s office.

 

DATED this 5th day of January, 2007.

A

Robert S. Lasnik

United States District Judge

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