UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Ashland Electric Products, Inc.

v. Civil No. 04-cv-291-PB

Bombardier Transportation

Holdings) USA, Inc.

O R D E R

The Court has two motions before it for consideration in the

above-captioned matter. Defendant moves for clarification of

this Court’s endorsed order on Defendant’s motion for extension

of time to answer (document no. 25). Plaintiff moves to compel

discovery responses (document no. 33). Both motions drew

objections from the non-moving party.

I. Motion To Clarify

On September 8, 2005, the Court signed an endorsed order

granting the Defendant’s motion to extend time to answer the

Plaintiff’s amended complaint. The Court included the following

sentence at the conclusion of the order: “Any request to add new

counts must be addressed by separate motion.” Defendant seeks

clarification of the Court’s order stating that it reads the

final sentence to mean that “its answer, affirmative defenses,

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and counterclaim were allowed by the Court’s order, but that if

Ashland wishes to add any counts to its first amended complaint,

or if Bombardier wishes to add any counts to its counterclaim in

the future, then a motion would be required.” Df.’s Mot. to

Clarify at 1, ¶ 2.

Defendant’s motion to clarify is granted. The final

sentence in the Court’s September 8, 2005 endorsed order was not

intended to mean that the Defendant had to file a separate motion

in order to assert counterclaims in its answer to the Plaintiff’s

amended complaint. The parties must file a motion for leave,

however, to file any further amendments to the pleadings. 

II. Motion To Compel Discovery

A. Whether Defendant’s Objections Are Waived

Defendant was served with Plaintiff’s First Request for

Production of Documents and Second Set of Interrogatories on or

about July 21, 2005. Plaintiff argues that Defendant’s

responses, provided on or about September 8, 2005, were untimely

because pursuant to Fed. R. Civ. P. 33(b)(3) and 34(b), Defendant

had until August 23, 2005 to provide its responses and

objections. Thus, Plaintiff argues, since Defendant did not meet

its deadline, the objections included with its discovery

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responses should be deemed waived.

Events preceding Defendant’s discovery responses are

material to the resolution of this issue. The Plaintiff’s

discovery requests sought, among other things, information and

documents pertaining to dealings between the parties that were

not addressed in the Plaintiff’s original complaint. In a letter

dated August 5, 2005, the Defendant asked whether the Plaintiff

wanted the Defendant to provide only a partial response to the

pending discovery requests, since the Plaintiff’s motion for

leave to amend the complaint had not yet been granted, or whether

Plaintiff preferred that the Defendant defer responding until

after the court’s ruling on the motion to amend. Plaintiff did

not respond immediately.

Plaintiff’s motion for leave to amend the complaint was

granted on August 8, 2005. In a letter dated August 9, 2005, the

Plaintiff asserted that the Court’s ruling allowing the amended

complaint rendered Defendant’s inquiry “academic” and that

Plaintiff expected Defendant’s discovery responses to be “timely

and complete.” Without further conferring with Plaintiff,

Defendant recalculated its deadline to respond to Plaintiff’s

discovery requests to 30 days from the date that the amended

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complaint was filed. Defendant served its discovery responses

within 30 days of the filing of the amended complaint.

A trial court has discretion in handling pretrial matters,

including discovery. See Cummings v. Standard Register Co., 265

F.3d 56, 68 (1st Cir. 2001). The Court accepts Defendant’s

assertion that its August 5, 2005 inquiry was made in good faith

and as a matter of professional courtesy. Although the Plaintiff

is correct that the Defendant’s discovery responses were not

served within the period provided in the rules, in the interests

of justice the Court finds that upholding the traditions of

comity in New Hampshire Practice is more important than a strict

application of the federal rules in this instance. See Fed. R.

Civ. P. 1 (the rules are to be “construed and administered to

secure the just, speedy, and inexpensive determination of every

action”). The Court finds that the Defendant’s discovery

responses should be deemed timely. Therefore, the Court denies

the Plaintiff’s request for a finding that Defendant has waived

its objections to the discovery requests.

 B. Plaintiff’s Definition of Terms In Discovery Requests

The Plaintiff argues that it has no way of knowing whether

the Defendant’s discovery responses are complete because the

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Defendant stated generally that it “rejected” the definitions

that Plaintiff incorporated into its discovery requests. 

Plaintiff seeks an order compelling the Defendant serve a

supplemental response applying the Plaintiff’s definitions.

Federal courts have permitted a propounding party to

incorporate instructions and definitions in discovery requests,

and have required the responding party to apply those

instructions and definitions, to the extent that they are

reasonable. See Orgulf Transp. Co. v. Magnolia Marine Transp.,

1998 WL 351845 at *1 (E.D. La. June 25, 1998) (overruling an

objection to definitions used in discovery requests where the

court found the definitions to be helpful and necessary in light

of defendant’s alleged failure to understand rudimentary terms

frequently used in the Federal Rules of Civil Procedure); Nalco

Chem. Co. v. Hydro Tech., Inc., 149 F.R.D. 686, 697 (E.D. Wis.

1993) (finding that certain terms used in plaintiff’s

interrogatories were overbroad and ordering the defendant to

respond in accordance with narrowed terms); Diversified Prods.

Corp. v. Sports Ctr. Co., 42 F.R.D. 3, 4 (D. Md. 1967) (finding

that setting forth standard instructions and definitions before

interrogatories can be helpful in avoiding tedious repetition,

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but can make interrogatories unduly burdensome if they are

unreasonable and finding that defendant’s definitions so expanded

the information requested that many interrogatories were unduly

burdensome). The Court agrees with the Defendant’s argument that

some of the definitions that Plaintiff used are unreasonable, for

instance, defining the term “document” to include “communications

of any type, including telephone conversations.” Defendant

further objects to Plaintiff’s definition of the term “identify”

which Plaintiff instructs that when used in reference to a

document includes identifying “all documents, whenever prepared,

that relate or refer to the document that you are requested to

identify.” Rather than compel the Defendant to serve new

responses to Plaintiff’s discovery requests applying the

Plaintiff’s definitions, the Court orders the Defendant to serve

a supplemental response stating, with respect to each term the

Plaintiff defined, how Defendant defined the terms when

responding to the Plaintiff’s requests. If the Plaintiff

contends that Defendant’s responses were inadequate because of

the definitions that Defendant used, the Plaintiff may file

another motion to compel, describing the deficiencies in the

Defendant’s responses and requesting further supplementation. 

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C. Whether Defendant Met Its Rule 34 Obligations

Included within the Defendant’s response to Plaintiff’s

First Request for Production of Documents Nos. 1 to 17 was an

objection on the grounds that:

Federal Rule 34 requires production of documents, not

repeated re-examination, re-categorization and/or

itemization of documents which have previously been

produced. In addition, the request to separately

identify documents previously produced is unduly

burdensome and duplicative and invades the

attorney/client and work product doctrines, and asks

for attorneys’ thoughts and mental impressions.

Df.’s Response to Pl.’s First Requests For Production of

Documents. Defendant indicated that it was producing responsive

documents that it had not previously produced.

Plaintiff argues that Defendant’s objection is unfounded

because Rule 34 requires that documents produced in response to a

request for production be itemized. Plaintiff further argues

that Defendant’s production of documents pursuant to its

obligations under Rule 26 does not relieve Defendant of its

responsibility to organize and label documents in response to

Plaintiff’s discovery requests under Rule 34.

By its terms, Rule 34 provides that 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

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correspond with the categories in the request.” Fed. R. Civ. P.

34(b). The responding party has the election between the two

options.

A party’s obligations to respond to discovery requests are

distinct from a party’s mandatory disclosure requirements under

Fed. R. Civ. P. 26(a). See Martinez v. U.S., 1998 WL 308021 at

*2 (E.D. La. June 10, 1998) (finding that the defendant confused

the mandatory disclosure requirements of Fed. R. Civ. P. 26(a)(3)

with its separate and distinct obligations to respond to

discovery); Brasic v. Heinemann’s Inc. Bakeries, 1996 WL 495562

*2 (N.D. Ill. Aug. 28, 1996) (the Federal Rules of Civil

Procedure make a distinction between disclosures that must be

made without awaiting a discovery request, and discovery which

need only be made in response to a discovery request). Indeed,

the advisory committee notes to Rule 26(a) indicate that the

disclosure required by Rule 26(a)(1)(B) should assist the

opposing party in framing its document requests. See Fed. R.

Civ. P. 26(a), Advisory Committee’s Note (1993); see also 7 James

Wm. Moore Et Al., Moore’s Federal Practice § 34.02[2] (3d ed.

2004). That a responding party has previously produced documents

that are responsive to a request for production as part of the

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responding party’s Rule 26 disclosures does not, by itself,

satisfy the requirements of Rule 34(b). See Allianz Ins. Co. v.

Surface Specialities, Inc., 2005 WL 44534 at *3 (D. Kan. Jan. 7,

2005) (absent some indication that the requested documents were

produced as they are kept in the usual course of business, a

party is required to identify the particular documents or to

organize and label them to correspond to each Rule 34 request).

Defendant does not assert either in its discovery responses,

or in its objection, that the documents that it previously

provided to Plaintiff were produced as they are kept in their

usual course of business. Therefore, the Court finds that the

Defendant has not met its discovery obligations under Fed. R.

Civ. P. 34(b) since Defendant did not identify the documents that

correspond to the Plaintiff’s requests in its discovery response. 

The Court orders the Defendant to provide the Plaintiff a

supplemental response identifying the particular documents that

are responsive to each of Plaintiff’s document requests by Bates

number.

D. Challenges to Specific Discovery Responses

1. Interrogatory No. 2

Plaintiff’s Interrogatory No. 2 asks Defendant to “Please

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identify all employees, agents, representatives, or persons

otherwise associated with Bombardier who possess any knowledge of

or information concerning the facts and issues raised in this

litigation. In addition, please provide a brief summary of the

knowledge and/or information possessed by each person so

identified.” Defendant objected to this interrogatory as

follows:

Answer: Objection by counsel. This question invades

the province of the attorney/client relationship and

asks for information that is not discoverable. 

Bombardier should not have to guess what the question

means, nor should Bombardier have to guess what facts

and issues are raised in the litigation so as to

determine who has knowledge. The term “knowledge” is

ill-defined. Literally, the answer to this question

could range from the receptionist, who takes phone

calls, to every person in the billing department, and

could certainly encompass attorneys for Bombardier, and

staff.

Plaintiff argues that identity of fact witnesses is not protected

by the attorney/client privilege and that the information sought

is the same information that Defendant should have, but did not,

provide in its initial disclosures under Fed. R. Civ. P.

26(a)(1)(A).

The Defendant has a legitimate objection to the breadth of

Plaintiff’s interrogatory. An interrogatory that blankets the

entire case is objectionable. See Allianz Ins. Co., 2005 WL

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44534 at *8. Furthermore, a party should not be required to

provide a narrative account of its case in response to an

interrogatory. Id. The Court agrees with the Plaintiff,

however, that the Defendant may not simply ignore its obligation

to provide the disclosures required under Rule 26(a)(1)(A). The

Court orders the Defendant to provide the Plaintiff a

supplemental response that identifies: the name and, if known,

the address and telephone number of each individual likely to

have discoverable information that Defendant may use to support

its claims or defenses, and, unless solely for impeachment, the

subjects of the information possessed by each person identified. 

 2. Interrogatory Nos. 7-8

Plaintiff’s Interrogatory No. 7 asks Defendant:

Please describe, in detail and in chronological order,

all communications that Bombardier had with Ultra Fine

Assembly concerning the design, development,

manufacture, and/or sale of tangential air blowers, or

any component thereof, for the MBTA of BART. In

answering this Interrogatory, please identify the date

on which said communication occurred and please

identify the individuals who participated in the

communication.

Defendant responded to this interrogatory as follows:

Answer: Documentation previously provided to Ashland

identified the parties, dates, and communications by

Bombardier to Ultra Fine Assembly. Richard Hock,

Procurement Specialist, was the lead in communications

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with Ultra Fine. Joseph Restanio was the Principal

Engineer involved over the years of communications.

Similarly, Plaintiff’s Interrogatory No. 8 asks Defendant:

Please describe, in detail and in chronological order,

all communications that Bombardier had with Motor

Assembly Corp. concerning the design, development,

manufacture, and/or sale of tangential air blowers, or

any component thereof, for the MBTA or BART. In

answering this Interrogatory, please identify the date

on which said communication occurred and please

identify the individuals who participated in the

communication.

Defendant responded to this interrogatory as follows:

Answer: The dates and all Adtranz personnel, including

Richard Hock as the Procurement Specialist, are named

in the correspondence between the two companies and

shown on all documentation previously given to Ashland.

Plaintiff argues that Defendant’s responses to Interrogatory

Nos. 7 and 8 are not complete and must be supplemented because

Defendant has not produced any invoices, purchase orders or other

documentation, including part drawings that one reasonably would

expect to exist under the facts of this case. As the allegedly

omitted materials are clearly discoverable, the Court orders the

Defendant to provide a supplemental response confirming whether

the additional documents identified by the Plaintiff exist and

producing any such documents if they do exist. 

3. Interrogatory No. 12

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Plaintiff’s Interrogatory No. 12 asks Defendant to “Please

describe, in detail, all ways in which Bombardier claims that the

tangential air blowers supplied by Ashland to Bombardier did not

meet Bombardier’s quality standards. In answering this

Interrogatory, please specifically identify each and every

Bombardier quality standard that Bombardier claims Ashland did

not meet.” Defendant responded to this interrogatory as follows:

Quality Standards is not the correct term to use in

this context. Ashland-supplied equipment was sold to

Bombardier as meeting the Bombardier Engineering

requirements found on the TESE and engineering drawings

given to Ashland during the bidding phase of the two

projects, both BART as well as MBTA. For instance, the

TESE and drawings given to Ashland gave the parameters

of how large a diameter the wheel had to be; they also

gave the parameters of what the speed requirements and

rotational set of the motors had to be in order to meet

the customer’s requirements for their needs.

Plaintiff argues that although Defendant states in response to

Interrogatory No. 12 that the term “quality standards” is not the

correct term to use, Defendant used precisely that term in its

April 17, 1998 letter to Plaintiff. Therefore, Plaintiff argues,

Defendant must answer this interrogatory in light of the meaning

that it ascribed to term “quality standard” in its April 17, 1998

letter. Plaintiff further argues that Defendant’s answer is nonresponsive because although Defendant lists certain “parameters”

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it does not state whether or not Plaintiff met those parameters. 

The Court agrees with Plaintiff’s argument that Defendant’s

answer to Interrogatory No. 12 is non-responsive. The Defendant

is ordered to serve a supplemental response that specifies the

failings in the Plaintiff’s tangential air blowers supplied to

Defendant by reference either to Defendant’s specific engineering

requirements and parameters or by reference to Defendant’s

specifically identified “quality standards.” 

4. Interrogatory No. 15

Plaintiff’s Interrogatory No. 15 asks Defendant: “Does

Bombardier claim that it sustained any damages as a result of any

actions taken by Ashland? If Bombardier answers this

Interrogatory in the affirmative, please provide a detailed

description and a detailed calculation of all damages claimed.”

Defendant responded to this interrogatory as follows:

Yes. Ashland’s failure to work with Bombardier to

resolve issues has caused many problems with our

customers. Ashland purchased and paid for all 100 sets

of blowers on the MBTA contract, and those blowers did

not work. Also, Bombardier was required to retrofit

the defective blowers from Ashland, purchase and/or

manufacture parts to retrofit the defective blowers at

Bombardier’s expense, and pay [for the] labor to

perform the retrofit of the defective Ashland blowers. 

Because Ashland’s provision of non-performing blowers

caused the [MBTA] cars not to function, Bombardier

incurred costs to mitigate the damages claimed by MBTA

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when its cars failed. Bombardier estimates that its

damages resulting from Ashland’s failure to provide

performing blowers total approximately $1.4 million.

Plaintiff argues that Defendant’s response to Interrogatory No.

15 is incomplete because Defendant does not provide a detailed

calculation, or any calculation, for how it arrived at $1.4

million. The Court agrees. The Defendant is ordered to serve a

supplemental response that provides a detailed computation of the

damages it claims it suffered from Plaintiff’s alleged failure to

perform as required by Fed. R. Civ. P. 26(a)(1)(C).

 5. Request For Production No. 1

Plaintiff’s Request For Production of Document No. 1 asks

Defendant:

Please produce all documents that concern the

tangential air blowers that Bombardier supplied to the

Massachusetts Bay Transit Authority (“MBTA”) for use on

the MBTA mass transit railway cars. If Bombardier has

previously produced documents that are responsive to

this request, please identify all such documents by

bates stamp number.

Plaintiff argues that Defendant’s response to this request was

incomplete because Defendant made it clear that it intentionally

withheld all MBTA documents from its initial disclosures and

because the documents that the Defendant produced in response to

Request No. 1 did not include the following types of documents:

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correspondence between Bombardier and Ashland relating to the

MBTA project; quotes or purchase orders relating to the MBTA

project; communications with other suppliers relating to the MBTA

project; any documents dated prior to 1997. The Court orders

Defendant to confirm in a supplemental response whether any

additional responsive documents exist in the categories that

Plaintiff has identified and to produce any such documents.

III. Request for Costs and Attorneys’ Fees

Plaintiff requests that the Court award Plaintiff its costs

and attorneys’ fees incurred in the preparation of its motion to

compel. As the Court finds that some of Defendant’s objections

were justified, and that Plaintiff has not demonstrated that the

Defendant’s responses were in bad faith, the Court finds that an

award to Plaintiff of its costs and attorney’s fees is not

warranted under the circumstances.

IV. Conclusion

For the reasons set forth above, Defendant’s Motion to

Clarify (document no. 25) is granted. Plaintiff’s Motion to

Compel Discovery Responses (document no. 33) is granted in part

and denied in part. The Court denies Plaintiff’s request for a

finding that Defendant has waived its objections to Plaintiff’s

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discovery requests, and denies its request for an award of its

costs and attorneys’ fees in bringing the motion to compel.

The Court orders the Defendant to provide the Plaintiff the

following supplemental responses: (1) a response identifying

Defendant’s definitions of terms that it substituted for

Plaintiff’s defined terms in responding to the Plaintiff’s

interrogatories and document requests; (2) answers to Plaintiff’s

Second Set of Interrogatories Nos. 2, 7, 8, 12 and 15 in

accordance with the Court’s discussion herein; (3) a response to

Plaintiff’s First Request for Production of Documents specifying

by Bates number the documents that are responsive to each of

Plaintiff’s Requests for Production; and (4) a response to

Plaintiff’s Request for Production No. 1 confirming whether

additional documents exist in accordance with the Court’s

discussion herein. Defendant shall serve all supplemental

responses required by this order within 20 (twenty) days from the

date of this order.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 21, 2005 

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cc: Steven E. Grill, Esq.

Donald L. Smith, Esq.

Robert A. Stein, Esq.

George T. Campbell, III, Esq.

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