Summary
explaining that "subparts directed at eliciting details concerning a 'common theme' should generally be considered a single question," while "subparts that inquire into discrete areas should, in most cases, be counted as more than one interrogatory"
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Civil Action No. 01-2005-JAR
August 28, 2002
MEMORANDUM AND ORDER
Pending before the Court are the following motions: (1) Plaintiff's Motion to Allow Additional Interrogatories (doc. 132); and (2) Defendants' Motion for Extension of Certain Discovery Deadlines and Assignment of Number One Trial Setting (doc. 135).
• Plaintiff's Motion to Allow Additional Interrogatories (doc. 132)
A. Factual Background
The Scheduling Order in this case states that no party may serve more than thirty interrogatories on any other party. Plaintiff has served three sets of interrogatories on Defendant Home Depot USA, Inc. ("Home Depot"). The first set contained twenty-five numbered interrogatories. Home Depot did not assert any objections to the first set based on numerosity.
See doc. 13, ¶ II.c.
The second set consisted of twenty-three numbered interrogatories. Accompanying the second set was a letter from Plaintiff's counsel stating: "If you feel I have asked more interrogatories than allowed, please advise immediately and I will seek leave of Court to do such if you will not voluntarily agree to such." Home Depot's counsel never responded to Plaintiff's letter. Approximately two months after serving the second set of interrogatories, Plaintiff served a third set of interrogatories consisting of two numbered interrogatories.
See Feb. 27, 2002 letter attached to doc. 132.
After receiving several extensions of time, Home Depot served its objections to the second and third sets of interrogatories. The only objection asserted to each set was numerosity. Specifically, Home Depot stated that the Scheduling Order only allowed Plaintiff to serve thirty interrogatories and that Plaintiff had served twenty-five interrogatories in her first set. Although Home Depot effectively admitted that the limit of thirty had not yet been exceeded, Home Depot did not respond to any of interrogatories contained in either the second or third set.
Plaintiff is now before the Court requesting leave to serve the interrogatories contained in her second and third sets of interrogatories. In support of her request, Plaintiff states that she has chosen to conduct discovery in this case through the use of interrogatories and requests for production of documents rather than through more costly Rule 30(b)(6) depositions. She argues that additional interrogatories should be allowed because they are a cost-effective way of conducting discovery. In addition, Plaintiff states that she relied to her detriment on the fact that defense counsel never responded to her counsel's letter about the number of interrogatories served. It was not until shortly before the close of discovery that Plaintiff learned that Home Depot was objecting to the number of interrogatories served. By then, it was too late for Plaintiff to take any depositions or pursue any other avenues of discovery.
B. Issues
The ultimate issue before this Court is whether Plaintiff should be granted leave to propound interrogatories exceeding the thirty-interrogatory limit set forth in the Scheduling Order. Before addressing that issue, however, the Court must determine the number of interrogatories that Plaintiff has actually served on Home Depot.
C. Calculating the Number of Interrogatories
• Applicable law
As noted above, the Scheduling Order in this matter provides that each party may not propound more than thirty interrogatories, inclusive of subparts, to any other party. In addition, Fed.R.Civ.P. 33(a), by its express terms, makes it clear that each interrogatory served, including any "discrete subparts," is to be counted against the numerical limit of interrogatories to be served. Rule 33(a) does not define the term "discrete subparts," and courts have struggled to interpret the term's meaning.
See doc. 13, ¶ II.c.
Fed.R.Civ.P. 33(a) ("Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 25 in number including all discrete subparts, to be answered by the party served.")
In Williams v. Board of County Commissioners of the Unified Government of Wyandotte County and Kansas City, Kansas, this Court addressed this issue, stating as follows:
192 F.R.D. 698, 701 (D.Kan. 2000).
Interrogatories often contain subparts. Some are explicit and separately numbered or lettered, while others are implicit and not separately numbered or lettered. Extensive use of subparts, whether explicit or implicit, could defeat the purposes of the numerical limit contained in Rule 33(a), or in a scheduling order, by rendering it meaningless unless each subpart counts as a separate interrogatory. On the other hand, if all subparts count as separate interrogatories, the use of interrogatories might be unduly restricted or requests for increases in the numerical limit might become automatic.
Id.
The Court noted that the Advisory Committee had addressed this issue in amending Rule 33 and had provided some guidance as to when subparts should and should not count as separate interrogatories:
Each party is allowed to serve 25 interrogatories upon any other party, but must secure leave of court (or stipulation from the opposing party) to serve a larger number. Parties cannot evade this presumptive limitation through the device of joining as "`subparts" questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.
Id. (quoting Advisory Committee Note, 146 F.R.D. 401, 675-76 (Fed. 1993)).
Finally, the Court observed that an interrogatory containing subparts directed at eliciting details concerning a "common theme" should generally be considered a single question. On the other hand, an interrogatory which contains subparts that inquire into discrete areas should, in most cases, be counted as more than one interrogatory.
Id. (quoting 8A Charles A. Wright, Arthur R. Miller Richard L. Marcus, Federal Practice and Procedure, § 2168.1 at 261 (2d ed. 1994)).
Id. (quoting 8A Charles A. Wright, Arthur R. Miller Richard L. Marcus, Federal Practice and Procedure, § 2168.1 at 261 (2d ed. 1994)).
• How many interrogatories has Plaintiff propounded?
By Home Depot's own admission, Plaintiff's first set of interrogatories consisted of only twenty-five interrogatories. Plaintiff was therefore allowed to propound five more interrogatories. The Court has reviewed Plaintiff's second set of interrogatories, and, applying the rules set forth above, finds that Interrogatory Nos. 1, 3, and 4 each consist of one interrogatory and that Interrogatory No. 2 consists of two interrogatories. Thus, Interrogatory Nos. 1-4 of the second set consist of five interrogatories and bring the total of Plaintiff's interrogatories to thirty.
The Court has reviewed Interrogatory Nos. 5-23 of the second set and finds that they consist of twenty interrogatories. The Court has also reviewed Interrogatory Nos. 1-2 of the third set and finds that they consist of two interrogatories. Thus, the Court finds that Plaintiff has served twenty-two interrogatories over the limit.
D. Should Plaintiff Be Granted Leave to Propound the Additional Twenty-Two Interrogatories?
1. Applicable law
D. Kan. Rule 33.1 provides that requests for leave to serve interrogatories exceeding the limit shall "set forth the proposed additional interrogatories and the reasons establishing good cause for their service." Thus, Plaintiff must persuade the Court that good cause exists for allowing these additional twenty-two interrogatories.
2. Has Plaintiff shown good cause to propound the additional interrogatories?
The Court finds that Plaintiff has demonstrated good cause for exceeding the numerical limit of interrogatories. The use of additional interrogatories in lieu of Rule 30(b)(6) depositions is a cost-effective method of conducting discovery. Furthermore, Plaintiff was placed at a disadvantage by defense counsel's failure to respond to Plaintiff's counsel's letter regarding the number of interrogatories. For these reasons, the Court holds that Plaintiff should be allowed to propound the additional twenty-two interrogatories, i.e., Interrogatory Nos. 5-22 of the second set and Interrogatory Nos. 1-2 of the third set. The Court finds this to be reasonable number of interrogatories, which should not place an undue burden on Home Depot to answer.
The Court also holds that Home Depot's numerosity objection to Interrogatory Nos. 1-4 of the second set was invalid, inasmuch as Home Depot admitted that the first set contained only twenty-five interrogatories. (As noted above, Interrogatory Nos. 1-4 of the second set are deemed to be five interrogatories.) The Court will therefore require Home Depot to answer Interrogatory Nos. 1-4 of the second set.
E. Conclusion
Plaintiff is hereby granted leave to submit Interrogatory Nos. 5-22 of the second set and Interrogatory Nos. 1-2 of the third set. Home Depot shall respond to those interrogatories within twenty (20) days of the date of filing of this Order. By that same date, Home Depot shall also respond to Interrogatory Nos. 1-4 of the second set. Home Depot is not precluded from asserting any additional objections to any of these interrogatories.
• Defendants' Motion for Extension of Certain Discovery Deadlines and Assignment of Number One Trial Setting (doc. 135).
For good cause shown, Defendants' motion will be granted in part and denied in part. The Court does not find the entire amount of additional time requested by Defendants to be necessary, nor does the Court find that a number one setting is required.
The Court hereby amends the Scheduling Order as follows:
1. All discovery shall be commenced or served in time to be completed by September 30, 2002.
2. Discovery may continue after this September 30 deadline so long as it does not delay the briefing of or ruling on dispositive motions or other pretrial preparations and so long as all parties are in agreement to engage in such discovery. The Court, however, will not be available to resolve any disputes that arise during the course of this extended discovery.
3. The parties shall submit their joint, proposed pretrial order to the Magistrate Judge on or before October 8, 2002. Given that the parties participated in a pretrial conference on July 24, 2002, an additional pretrial conference may not be needed. Out of an abundance of caution, however, the Court will schedule a pretrial conference for October 15, 2002 at 11 a.m. If the parties are in agreement as to the proposed pretrial order and do not desire to participate in this second pretrial conference, counsel shall notify the Court on or before October 8, 2002, and the pretrial conference will be canceled.
4. All dispositive motions shall be filed by November 1, 2002.
5. After consultation with the District Judge, the case is set for trial on a trial calendar that will begin April 8, 2003. This is not a number one trial setting.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Allow Additional Interrogatories (doc. 132) is granted. Plaintiff is hereby granted leave to submit Interrogatory Nos. 5-22 of Plaintiff's second set of interrogatories and Interrogatory Nos. 1-2 of Plaintiff's third set of interrogatories. Home Depot USA, Inc. shall respond to those interrogatories within twenty (20) days of the date of filing of this Order. By that same date, Home Depot shall also respond to Interrogatory Nos. 1-4 of Plaintiff's second set of interrogatories.
IT IS FURTHER ORDERED that Defendants' Motion for Extension of Certain Discovery Deadlines and Assignment of Number One Trial Setting (doc. 135) is granted in part and denied in part, as set forth herein.
IT IS SO ORDERED.