1 Formerly known as the United States Customs Service.

Slip Op. 04-80 UNITED STATES COURT OF INTERNATIONAL TRADE Before: Judge Judith M. Barzilay

_____________________________________ : UNITED STATE S, : : Plai ntiff, :

: Court No. 02-00646 v. : : OPTREX AMERICA, INC., : : Defendant. : ____________________________________ :

MEMORAN

DUM OP INION ANDORDER Before the court is a Motion to Compel Discovery by Defe ndant Optrex America, Inc ., dated F ebruar

y 27 , 2004, (s ee also t

he compa nion opinion and ord

er issue d in this case on Plaintiff’s Motion to Compel Discovery) . This case involves Defendant Optrex’s alleged neglige

nt misclassification of imported liquid crystal display (“LCD”) pane ls and modules e

vidence d by

enterin g incor rect HT SUS item numb ers onto e ntry document s submitted to Plaintiff United States Bureau of Customs and Border Protection 1 (“Customs” or “government”). Defendant desires the court (1) to overr ule the government’s “Genera l Objections” to Defendant’s I nterrogatories; (2) to overrule its “Specif ic Objections,” which are delineated in separate a nswers; (3) to overrule the objections and claims of privilege Plaintiff asserts in its Answers to Defendant’s I nterrogatories and Requests forCourt No. 02-00646 Page 2

Production, as wel l as Plainti ff’s Priv ilege L og; and (4) to co mpel the g overnme nt to provide new, comp lete Answ ers to the Inte rroga tories an d to produc e and spe cifical ly correlate, with their respective I nterrogatories and Answers, all docume nts the
gover nment cite s in its Answ ers and d ocumenta ry producti on. Defe

ndant als o desire s to receive an additional 30 days to depose Mr. Jeffrey Reim and any informants identified in the Answers given in response to the requests above

. Def.’s Mot. to Compel , 41-42

. Plaintiff counter s with a cr

oss-motion

for a Pro tective Order for informa tion that it consider s privileg ed, as ev

idenced in a document it cal ls a Privile ge L og. This log lists documents under the headings “Document Number ,” “Date,” “Author,” Descr iption,” and “Priv ilege, ” and pur

ports to a ssert pri

vilege d status for docume nts relat ing to Plaintiff’s answers to Defendant’s I nterrogatories as well as information Def endant seeks from Mr. Reim. First, the court notes that “[t]he purpose of discovery procedures are (1) to narr ow the issues; (2) to obtain evidence for use at trial; and (3) to sec ure information as to the existence of evidence that may be used at trial.” Wood v. Todd Shipyards , 45 F.R.D. 363, 364 (S.D. T ex. 1968). “Mutual k nowledg e of all the relev ant fac ts gathe red by both parties is essential to proper litigation.” Hickman v. Taylor , 329 U.S. 495, 507 (1947). Thus the sp irit of the

rules is vi olated when advoc ates atte mpt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discove ry or unnec essary use

of defensi ve weap ons or eva sive res ponses. All of this r

esults in excessively costly and time-consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values a t stake. Advisory Committee’s Note to 1983 Amendment to F ED
. R. C IV
. P. 26; see also U.S.C.I.T. R. 26 (U.S.C.I.T. discove ry rule de tailing the scope of discovery at the court).Court No. 02-00646 Page 3

In light of court rules a

nd precedent governing

discovery, the c ourt partially g rants and partially denies De fendant’s Motion to Compel Discovery. (1) Befor e reply ing to De fendant ’s In

terrog atories, Plaintiff

attache d an eig

htpage list of General Objections that rec ites various grounds for opposing Defenda nt’s Interroga tories without referring to specific I nterrogatories or subjects of dispute. Def.’s Mot. to Compel , App. B, 1-7. As Defendant corre ctly asserts, in this court Gene ral Objections are not allowed. In othe r words, in this court “[a]ll grounds for an objection to an interrogatory

shall be stated with specificity,” U.S.C.I.T. R. 33(b)(4), and “[e]ach interrogatory

shall be answered separately and fully . . .” U.S.C.I.T. R. 33(b)(1) (emphas is added) ; see NEC Am., Inc. v. United States , 10 CIT 323, 325, 636 F. Supp. 476 (1986). Plaintiff insists it used the General Objections “[f]or convenience.” Pl.’s Opp . to Def.’s Mot. to Compel , 7. However, such claim is irrelevant because blanket objections are universally

considered “improper.” In re Folding Carton Antitrust Litig. , 83 F.R.D. 260, 264 (N.D. Ill. 1979). Some courts have e ven construed use of General Objections as a waiver of objections in their entirety

. Id. ; White v. Belog inis , 53 F.R.D. 480, 481 (S.D.N.Y. 1971). Thus, the court overrules Plaintiff’s Genera l Objections. (2) Plaintiff’s Specific Objections mirror its General Objections, except that they appear in individual answers. Defendant notes that these obje ctions offer “conclusory statements” without explanation. Def.’s Mot. to Compel , 9-10. As s tated ab ove, a pa rty must support objections with specificity rather than sweeping statements, especially since the objecting par

ty c arries t

he burde n of demon strating

the rea sonableness of itsCourt No. 02-00646 Page 4

2 See Att. A for a specific explanation of the error(s) c ontained within each overruled Answer. objections. See United States v. 58.16 Acres of Land , 66 F.R.D . 570, 572- 73 (E.D. I ll. 1975). “Objections to interrogatories must be specific a nd be supported

by a detailed explanation as to why interrog atories or a class of interrogatorie s is objectionable.” Id. at 572 (emphasis adde d); see U.S.C.I.T. R. 33(b)(4) (All gr ounds for an objection to an interrogatory

shall be s tated wit

h specif icity . . .); s ee also U.S.C.I.T. R. 26(g)(2) (listing improper grounds for objections). “[M]ere assertion that interrog atories are overly broad, burdensome, oppressive, or irrelevant is not adequate to constitute a suc cessful objection . . . .” Sellick Equip. Ltd. v. United States , 18 CIT 352, 354 (1994). Likewise,
no answer may

“refer to the pleadings, depositions, documents, or other inter rogatories.” Id. at 356 (quot ing NEC Am. , 10 CIT at 325). In su m, a succ essful ob

jection o ffers a recognized reason for objection buttressed by substantiated, detailed proof of the claim. The government responds by blaming the allegedly

“vague” and/or repe

titive nature of Defendant’s questions for its use of Specific O bjections. Pl.’s Opp. to Def.’s Mot. to Compel , 8-9. How ever, U .S.C.I .T. Rules 3 3(b)(1) , (4) and 26(g)(2), and c ase precedent disallow complaints of vagueness a nd repetition as objections. Because Answers to I

nterrogatories 1, 1(a), 1(b), 1( c), 2, 2(a), 2(b), 2(c), 2(d), 2(f), 3(b), 3(d), 4(b), 5(h), 6(a) , 7(a), 8, 9, 9(a), 11, and 12-21 raise unsound, unsubstan

tiated ob jections, the cour

t overru les both th e answe

rs and the Specific Objections cited w

ithin them. 2 The court also orders the government to re submit answers to Defendant in accordance with this opinion and this court’s rules and c ase law.Court No. 02-00646 Page 5

3 USCIT Rules closely

mirror the Federal Rules of Civil Procedure, and thus case s under FRCP are applicable in our court. (3) Defendant correctly

asserts that Plaintiff has not met its burden in asserting privileges to object to Defendant’s I nterrogatories. Def.’s Mot. to Compel , 12. Plaintiff cites the grounds for most of these claims in its Privilege Log. However, information contained in that document is inadequate to support Plaintiff’s claims. With respect to all privilege claims, U.S.C.I.T. Rule 26(b)( 5) 3 deems tha t in
gener al, [w]hen a party withholds information otherwise discover able under these rules by c laiming that it is privileged or subject to protection as tr ia l p re pa ra ti on ma te ri al , t he pa rt y sh al l m ak e t he cl ai m e xp re ss ly and shall describe the nature of the documents, communications, or thin gs not produ ced or d isclo sed in a mann er that , wit hout reveal ing information itself privileged or protected, will enable other parties to assess the applicability of the pr ivilege or protection. See also Burns v. Imagine Films Entm’t , 164 F.R.D. 589, 593-594 (W.D.N.Y. 1996) (noting that “where Defenda nts . . . claimed that information requested and material sought were privileged but did not state nor demonstrate the underlying

facts or circumst ances of the privil ege or

protect ion . . . suc

h privileg e is denie d”); In re Shopping Carts Antitrust Litig. , 95 F.R.D. 299, 306 (S.D.N.Y. 1982). Plaintiff’s invocation of the investigative files privilege to object to I nterrogatory 2(e) doe s not eff

ectively show that “

the sourc es [of the i

nformati on Defe

ndant see ks] provided [the] infor

mation und

er an expr ess assur ance of confide ntiality or in circumstances from which such an assuranc e could be reasonably inferred,” as use of the privilege requires. R. C. O. Reforesting v. United States , 42 Fed. Cl. 405, 408 (1998).Court No. 02-00646 Page 6

The government may

intend the court to passively ac cept its claim that the relevant documents “contain sensitive information relating to the Government’s investig ative techniques and procedures . . .” Pl.’s Opp. to Def.’s Mot. to Compel , 16. To gr ant this privileg e claim w ould have the cour t and Def endant pl ace the ir comple te trust in Plaintiff ’s asser tions witho

ut corro borating proof. T hus, Plaint

iff’s An swer to Interroga tory 2(e) a

nd its claim of investigatory privilege are overruled. Plaintiff ’s asser tions of de liberati

ve proce ss privile ge in its objectio ns to Interroga tories 7 and 7(a) do not demonstrate, as necessar y, that answer

ing the Interroga tories would expose the government’s “decision-making pr ocesses” rather than merely pure ly factual infor mation. Abramson v. United States , 39 Fed. Cl. 290, 293-95 (1997); see Seafirst Corp. v. Jenkins , 644 F. Supp. 1160, 1163 (W.D. Wash. 1986) (Communications are not within the purview of the privilege unless they are both (1) “predecisional” in that they have been generate d prior to an agency ’s adoption of a policy or decision and (2) “deliberative” in that they reflect the give-and-take

of a deliberative decision -making

process ). The g overnme nt may not deny Defend ant acc ess to discoverable information by citing deliberative process privilege unless the information fits into this narrow rubric. Because the court c annot determine if the information for which the government claims this privilege meets these standards, the court overrules Plaintiff’s assertion of deliberative process privilege and its Answers to 7 and 7(a). Further, Plaintiff’s Privilege Log does not meet the standards required to assert the privileges claimed because it contains only rudimentary infor

mation. See Pl.’s Opp. to Def.’s Mot. to Compel , App. E. To meet th ese stan dards, th e log mus tCourt No. 02-00646 Page 7

contain a brief de scription

or summar

y of the conte nts of the document , the date the document was prepared, the pe rson or persons who prepared the document, the person to whom the document was directed, or for whom the document was prepared, the purpose in pre paring the document, the privilege or privileges a sserted with respect to the document , and how e ach ele ment of the

privileg e is met as

to that document

. Burns , 164 F. R.D. a t 594 (quot ing F ED
. R. C IV
. P. 26(b)(5 ), Advisory Committee N otes, 1993 Amendments). The government’s log c ontains only skeletal information and opaque descriptions of the documents’ contents. Due to the frag mentary natur

e of the Priv ilege Log, neith er Defen dant n or the court can det ermin e the v alidi ty of the p rivil ege claims. Thus, the court overrules Plaintiff’s Privilege L og along with the answers that depend upon it for support: 8, 9, 11, 12, and 16-19. The cour t orders gover nment cou

nsel to ag ain revi ew the do cuments c ontained in Plaintiff’s current Privilege L og, mindful of the admonitions concerning the use of privileg e as set f

orth in this

opinion. A fter re

view, sho uld there be any document s remaining that Plaintiff continues to assert are privileg ed, Plaintiff will submit a new Privileg e Log

to Defen dant and t his court with infor

mation ad equate t o support i

ts remaining claims. (4) Defend

ant seek s to depose

Customs Assi stant Chie f Counsel Je ffrey Reim because it believes he “may have acted outside of the scope of his duties as an attorne y when he assumed the roles of special ag ent during the underly ing investigation.” Def.’s Mot. to Compel , 13. To support this move, Defendant highlights that attorney -client
pr iv il eg e a pp li es on ly (1) [w]here legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relatingCourt No. 02-00646 Page 8 to that pur

pose, (4) made in c onfidenc e (5) by the clien t, (6) ar e at his [sic ] in st an ce pe rm an en tl y pr ot ec te d ( 7) fr om di sc lo su re by h im se lf or by the legal adviser, (8) except the protection be waived. Id. at 14 ( quot ing United Sta tes v. Lawle ss , 709 F.2d 485, 487 (7th Cir. 1983)). In response, the g overnment dismisses Defendant’s assertion as “provid[ing] no detail concerning the nature of [the] claim” and not “identify [ing] any evidence supporting” it. Pl.’s Opp. to Def.’s Mot. to Compel , 18. While both parties’ arguments prove factually correct, they

overlook the two crucial issues at stake: Did Mr. Reim provide Plaintiff with discoverable information, and if so, does this information fall within attorney-c lient privilege? Currently, the court cannot determine the nature of the information Mr. Reim may have provided the government, let alone whether it deserve s privileged status. The court will hear counsels’ arguments on this issue as described below. Plaintiff’s Privilege Log

discloses too little information for the court to judge the merits on this issue as well. See supra part (3). Therefore, the court orders government’s counsel to review again the documents in the Privileg e Log, mindful of the cour t’s admonitions concerning the use of privilege a s set out in the opinion. Should Plaintiff continue to assert privilege with rega rd to any re

maining documents concerning Mr. Reim’s deposition or attorney-c lient privilege, those documents must be submitted to the court for the cou

rt’s in camera review. ( 5) Because most of the government’ s Answers to Defendant’s I nterrogatories should be resubmitted to Defendant in accordance w ith court rules, the government should also reformulate its Answers that depend upon the overruled one s. The AnswersCourt No. 02-00646 Page 9

requirin g revis ion includ

e 1(c), 2(c), 3( e), 8(a

), 9(a) , 10, and 1 1(a). Pla intiff sho uld also produce and spec ifically

correl ate with i

ts respe ctive I

nterrog atories a

nd Answe

rs all documents cited in its answers and documentary production for Defendant. At oral argument, the court would also have government’s counsel explain why government’s counsel should not be sanctioned for deliver ing to Defendant’s counsel thirteen boxes of unorganized documents (later reduce d to three) during discovery and for providing answers to Defendant’ s Interroga tories that persistently violate cour t rules and case law. See U.S.C.I .T. R. 37; Burns , 164 F.R.D. at 600-601; In re Folding Carton Antitrust Litig. , 83 F.R.D. at 264; White , 53 F.R.D. at 481. For all the foregoing r

easons, it is hereby ORDERED that Plaintif

f’s Cross -Motion for a Prote ctive Or der is DE NIED ; it is further ORDERED that Plaintiff’s General Objections to Defendant’s I nterrogatories are overruled; it is further ORDERED that Plaintiff’s Specific Objections in and Answers to I nterrogatories 1, 1(a), 1(b), 1(c), 2, 2(a), 2(b) , 2(c), 2(d), 2(f), 3(b), 3(d), 4(b) , 5(h), 6(a), 7(a), 8, 9, 9(a), 11, and 12-21 are overruled ( see App. A); it is further ORDER ED tha t Pla inti ff’s P rivil ege Log and a ll of P laint iff’s claim s of pr ivil ege are overruled, as are Plaintiff’s Answe rs to Interroga

tories 2(e), 7, 7(a), 8, 9, 11, 12, and 16-19, wh ich rely upon these

privileg e claims (

see App. A); it is further ORDERED that Answers to Interrogatories 1(c), 2(c), 3(e), 8(a ), 9(a), 10, and 11(a) a re over ruled be cause th eir valid

ity d epends on alrea

dy overrule d Answers ( see App. A); it is furtherCourt No. 02-00646 Page 10

ORDERED that for a

ll Answers overru

led for w hatever reason, Plaintiff

must provide D efenda

nt with new

Answers in accor dance w ith court r ules withi n 30 day s; it is further ORDERED that discovery f or Defendant be reopened for 60 days afte

r this order; it is further ORDERED that if Plain

tiff inte nds to main

tain its cl aims of pr

ivilege s with respect to any

information, it must present a new privilege log to Defe ndant and the court within one

week of this orde r; if the c ourt ag ain finds

the log d eficien t, it may waive us e of all privileges invoked therein ( see U.S.C.I.T. R. 37; Burns , 164 F.R.D. at 600-601; In re Folding Carton Antitrust Litig. , 83 F.R.D. at 264; White , 53 F.R.D . at 481); it is further ORDERED that within one week of this ord

er Plainti ff turn o ver to the court al l documents for which Plaintiff plans to claim privilege related to the de position of Mr. Reim for in camer

a review; it is further ORDERED that on July

14, 2004, t

he court will hear oral ar guments specific ally and only in refe

rence to Defendant’s Motion to Depose Mr. Reim and to allow Plaintiff’s counsel to explain why the court should not sanction the g overnment for its discovery actions which violate court rules and case law tea chings. If counse l so desire, the court will hold oral argument via telephone. Counsel are to consult and inform c hambers within one week of the date of this order.

Da te d:

__ Ju ly 1 st , 2004_______ /s/ Judith Barzilay

_________________________ New York, New York Ju di th M. Ba rz il ayCourt No. 02-00646

Appendix A Interroga tory Number Reaso n(s) f or Over rulin g* 1 RD 1(a) RD 1(b) RD 1(c) RD, OA 2 RD 2(a) RD 2(b) RD 2(c) RD, OA 2(d) RD 2(e) B ( see supra part (3)) 2(f) RD 3(b) RD 3(d) RD 3(e) OA 4(b) RD 5(h) R, V, AH 6(a) RD 7 B ( see supra part (3)) 7(a) V, B ( see supra part (3)) 8 AH, B, PL 8(a) OA 9 R, AH, PL 9(a) R, AH, OA 10 OA 11 R, PL, AHCourt No. 02-00646

11(a) OA 12 RD, PL, AH 13 RD 14 RD 15 I 16 R, PL, AH 17 R, RD, PL, AH 18 RD, R, PL, AH 19 RD, R, PL, AH 20 I 21 RD

* Explanation o f the Abbre viations for

Overruli ng R - Answer inappropriately objects to Interrog atory for be ing repetitive. V - Answer inappropriately objects to Interrog atory for be ing vague. RD - Answer inappropriately refers to documents not in Answer. I - Answer incomplete. AH- Answer i

nappropriately

claims De fendant

has requ ested doc uments in it s possession. B- Burden

of proof for privilege i

nvoked in Answer n

ot met. PL- Answe r obje cts to Interroga tory base d on ov errul ed Pri vilege Log. OA- Answer depends on another overruled Answe r.