United States District Court, W.D. Arkansas, Fayetteville Division
GARLAND D. MURPHY, III, M.D., and PHYLLIS MURPHY, Individually and on behalf of all others similarly situated PLAINTIFFS
GOSPEL FOR ASIA, INC.; GOSPEL FOR ASIA-INTERNATIONAL; K.P. YOHANNAN; GISELA PUNNOSE; DANIEL PUNNOSE; DAVID CARROLL, and PAT EMERICK DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are a Motion for Leave to Serve Discovery
(Docs. 32, 33) filed by Plaintiffs Garland D. Murphy,
III, M.D. and Phyllis Murphy, a Response in Opposition (Doc.
39) filed by Defendants Gospel for ASIA, Inc.
("GFA"), Gospel for Asia-International, K.P.
Yohannan, Gisela Punnose, Daniel Punnose, David Carroll, and
Pat Emerick (collectively, Defendants), and Plaintiffs'
Reply in Support (Doc. 42). The Court, having previously been
notified of the discovery dispute at the heart of these two
filings, held a telephonic hearing on September 22, 2017, at
which time it had the parties provide more information about
the scope of the present dispute and past efforts to obtain
the information that Plaintiffs now seek to discover through
the proposed Requests for Admission (RFA). For the reasons
given below, Plaintiffs' Motion is
underlying lawsuit in this case concerns Plaintiffs'
allegations that Defendants and their international partners
have defrauded their donors by diverting donations that were
earmarked for specific purposes to different uses without
these donors' knowledge. Plaintiffs seek to represent a
class of such donors and have brought several causes of
action, including civil RICO and fraud, against Defendants.
matter currently before the Court, however, concerns a
discovery dispute that has arisen between the parties
regarding information central to this case: namely,
information regarding where donated monies were sent and for
what purposes they were used. As is obvious given the nature
of this case, Plaintiffs' theory of fraud is premised on
demonstrating that Defendants and their international
partners did not spend the donated money in accordance with
their donors' wishes and, in doing so, violated promises
allegedly made to these donors to do exactly that.
order to demonstrate that these donations were not spent in
conformity with these alleged promises, Plaintiffs served two
prior sets of discovery on Defendants. Both of these sets,
which included interrogatories and, by the Court's count,
at least 75 requests for production, sought to obtain
information and documents that would either establish or
refute Plaintiffs' theory about where the donated money
went. Given the information provided under seal to the Court
and discussed during the September telephone conference, it
is clear that Plaintiffs' prior attempts to discover this
crucial information were only partially successful. In short,
these interrogatories and requests for production provided a
wealth of information that illustrated how much money was
collected by Defendants. But, this discovery information did
nothing to clear up the confusion as to how this accumulated
money was subsequently spent.
such, Plaintiffs now once again seek answers to the same
questions that they have been asking for months: was this
donated money diverted to other causes and do Defendants have
information or documents that would prove how the money was
spent? In an effort to come at the problem from a different
angle, however, Plaintiffs now seek to serve on the
Defendants what amounts to over 1000 RFAs. While startling
upon first read, this sizable number of RFAs consists
entirely of the same six RFAs repeated for each of 179
different codes representing different categories of
donations (e.g. a code for pigs and a separate code for
bicycles). Each of these sets of RFAs is accompanied
by a Request for Production asking for any documents in the
Defendants' possession that would reflect how this
earmarked money was spent.
their Response in Opposition, Defendants object to this
proposed set of discovery on several grounds, including the
sheer number of requests, the improper nature of these
requests given the purpose of Rule 36 of the Federal Rules of
Civil Procedure, and the lack of need for these requests now
that Defendants' field partners have recently committed
to providing information relevant to Plaintiffs'
inquiries. See Doc. 39, pp. 2-11. The Court finds
these reasons unpersuasive. It will address each of
Defendants' concerns in turn.
The Number of RFAs
first objection raised by Defendants concerns the sheer
number of RFAs in the proposed set of discovery. Defendants
cite cases where courts have refused leave to serve or
granted protective orders where the number of requested
admissions was quite large. Indeed, the Court found these
cases as well in its own research. Of course, Defendants
ignored other cases from around the country where courts
allowed a party to serve a large number of requests for
admission. See, e.g., Layne Christensen Co. v. Purolite
Co., 2011 WL 381611, at *1 (D. Kan. Jan. 25, 2011)
(Rushfelt, Mag. J.) (denying a protective order that would
have relieved a party from responding to 626 RFAs); Gen.
Bee. Co. v. Prince, 2007 WL 86940, at *2 (S.D.N.Y. Jan.
10, 2007) (Dolinger, Mag. J.) (denying a protective order for
573 RFAs); Daw's v. Harding, 2013 WL 4509491, at
*1 (W.D. Wis. Aug. 26, 2013) (Crocker, Mag. J.) (denying
motion to quash 826 RFAs); Sequa Corp. v. Gelmin,
1993 WL 350029, at *1 (S.D.N.Y. Sept. 7, 1993) (Dolinger,
Mag. J.) (denying protective order to a party served with
1441 separate RFAs); Heartland Surgical Specialty Hosp.,
LLC v. Midwest Div., Inc., 2007 WL 3171768, at *1-6 (D.
Kan. Oct. 29, 2007) (Bostwick, Mag. J.) (denying in large
part a protective order to a party served with 1351 RFAs).
of the above-cited cases, and in the cases cited by
Defendants where the court prohibited the large number of
RFAs, it was not the sheer number of RFAs that led the courts
to their decisions; rather, it was the number of requests in
light of the complexity of the case and the needs of the
parties. Of course, this weighing of the need for discovery
in light of the complexity of the case should come as no
surprise given that these are the same factors considered
when deciding whether to grant a protective order under Rule
26(c)(1). See also Fed. R. Civ. P. 26(b) (discussing
the proportionality standard used in determining the scope of
reading the briefings by both parties and discussing the case
during the telephone conference, the Court finds that the
complex nature of this case and Plaintiffs' prior
inability to obtain this crucial discovery information using
more traditional interrogatories and requests for production
warrant this large number of RFAs. This proposed class action
lawsuit involves a large charitable organization and many
international partners. As such, this is not a simple case
involving two parties and a limited amount of discoverable
material. The very fact that 179 different categories of
expenditures exist reinforces the Court's finding that
this number of RFAs is warranted.
Purpose of Rule 36
next objection to this proposed discovery is that these RFAs
would flout the purpose of Rule 36. The Court agrees with
Defendants that the purpose of a Rule 36 RFA is "to
expedite the trial and to relieve the parties of the cost of
proving facts that will not be disputed at trial."
Hardy v. Bartmess, 2011 WL 13195971, at *1 (E.D.
Ark. Apr. 1, 2011) (citation omitted). However, the Court
disagrees that the very fact that this issue (i.e. whether
Defendants spent the money the way they allegedly promised
to) will likely be one for trial automatically
precludes this from being the subject of a Rule 36 RFA.
Advisory Committee's Notes to Rule 36 provide a better
interpretation of the purpose of Rule 36. The Notes to the
1970 amendment to Rule 36 state that "[a]dmissions are
sought, first to facilitate proof with respect to issues that
cannot be eliminated from the case, and secondly, to narrow
the issues by eliminating those that can be." It is
clear to the Court that Plaintiffs are attempting through
this proposed set of discovery to do ...