Opinion
Case No. 3:04-cv-568-J-32HTS.
March 15, 2005
ORDER
This cause is before the Court on Deirdre S. Merwin's Motion to Compel Nicholas B. Carter and Border Collie Rescue to Answer Interrogatories 17-23, Request for Attorneys Fees and Costs (Doc. #224; Motion), filed on February 14, 2005. Plaintiffs Border Collie Rescue's and Nicholas B. Carter's Amended Response in Opposition to Deirdre Merwin's Motion to Compel Discovery (Doc. #257; Opposition) was filed on March 9, 2005.
Defendant Merwin (Defendant) requests that the Court direct Plaintiffs to answer certain interrogatories. Motion at 1. Plaintiffs have refused to provide answers to some of the interrogatories served by Ms. Merwin as they argue the number of interrogatories has exceeded the amount allowed pursuant to Rule 33(a), Federal Rules of Civil Procedure (Rule(s)). See Motion at 7; Opposition at 6-7.
Under Rule 33(a) "any party may serve upon any other party written interrogatories, not exceeding 25 in number including all discrete subparts[.]" Regarding that limit, the Advisory Committee stated it cannot be evaded by "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." Rule 33 Advisory Committee Note (1993 Amendment).
Here, Plaintiffs assert questions 1, 2, 3, 4, 5, 10, and 15 contain more than one subpart. Opposition at 7-9. The Court has reviewed the interrogatories at issue and is of the view they do not contain "discrete" or separate and distinct subparts. "[A]n 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." Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 664-65 (D. Kan. 2004) (footnote omitted); see 8A Charles Alan Wright, et al., Federal Practice and Procedure § 2168.1 (2d ed. 1994). The interrogatories at issue in this case each concern a common theme. The subject of the first query is Border Collie Rescue Inc.'s (BCR) board of directors. See Defendant Deirdre S. Merwin's First Set of Interrogatories to Plaintiff Border Collie Rescue, Inc. and Nicholas B. Carter, attached to the Motion as Exhibit A, at 3. Question 2 asks about people who currently work for BCR and those who did so in the past. Id. at 4. Numbers 3 and 4 each seek information about the dogs Plaintiffs have had since 1994. Id. Interrogatory 5 concerns service contracts entered into by Plaintiffs since 1997. Id. at 5. In Interrogatory 10, Defendant seeks specific information relating to an allegation "in paragraph 44 of the First Amended Complaint [(Complaint)]." Id. at 6. Finally, question 15 concerns Plaintiff Carter's background and education. Id. at 8. As such, Plaintiffs' objection on the basis that Defendant has exceeded the permissible number of interrogatories is not appropriate.
Plaintiffs also argue Interrogatories 18, 20, 21, 22, and 23 are overbroad and unduly burdensome. With respect to Interrogatories 20, 21, 22, and 23 this objection is not well taken as it was not raised in Plaintiffs Border Collie Rescue's and Nicholas B. Carter's Responses and Objections to Defendant Merwin's First Set of Interrogatories (Objections), attached to the Motion as Exhibit B. As for question 18, overbreadth and burden were raised in the Objections.
"Under well-settled law, the party resisting [discovery] bears the responsibility of establishing undue burden." Coker v. Duke Co., 177 F.R.D. 682, 686 (M.D. Ala. 1998). "Parties `cannot invoke the defense of oppressiveness or unfair burden without detailing the nature and extent thereof. Simply decrying the expense to plaintiff will not satisfy this obligation.'" Porter v. Nationscredit Consumer Disc. Co., No. Civ.A. 03-3768, 2004 WL 1753255, at *1 (E.D. Pa. July 8, 2004) (quoting Martin v. Easton Pub. Co., 85 F.R.D. 312, 316 (E.D. Pa. 1980)). The party asserting undue burden "must substantiate that position with detailed affidavits or other evidence[.]" Coker, 177 F.R.D. at 686; see Hammond v. Lowes Home Ctrs., Inc., 216 F.R.D. 666, 672 (D. Kan. 2003) ("The objecting party must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, [the] question is overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden."). Further, that party must also "show that the burden or expense is unreasonable in light of the benefits to be secured from the discovery." Hammond, 216 F.R.D. at 674.
With respect to Interrogatory 18, which requests details of the damages claimed in the Complaint, no particulars have been provided as to how Plaintiffs will be burdened if required to respond. As well, it does not appear the question is overbroad on its face as it simply asks Plaintiffs to list and detail their damages. Because the question appears to be permissible, these objections will not serve as a basis to deny the discovery.
Interrogatory 17 requests that Plaintiffs "[i]dentify and describe all `statements and innuendoes published by these third parties' identified in paragraph 102 of the First Amended Complaint." Motion at 3. Plaintiffs argue they should not be required to answer this question as it is unduly burdensome. Opposition at 11. It is argued "[t]he answer to this singular Interrogatory alone would result in a detailed response comprising of more than 1,000-2,000 pages and require on the order of 500 to 1,000 man-hours by the Plaintiffs to prepare[.]" Id. It is unclear from where these numbers are derived and Plaintiffs have provided no evidence or affidavit to support them.
Plaintiffs also assert with respect to this question that by providing documents responsive to Defendant's request for production they "have furnished such information as is available to [Plaintiffs]." Id. at 13. If Plaintiffs have already given all the information they have in a manner consistent with Rule 33, they will not be required to do so a second time. "Only business records may be used in lieu of interrogatory answers." Steven Baicker-McKee, William M. Janssen John B. Corr, Federal Civil Rules Handbook at 665 (2004). However, to the extent Plaintiffs are to use business records as their response to the question, they must provide sufficient information to allow Defendant "to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained." Rule 33(d); see also Middle District Discovery (2001) at 11-12 ("To avoid abuses . . . the party wishing to respond to interrogatories in the manner contemplated by Rule 33(d) should . . . [s]pecify the documents to be produced in sufficient detail to permit the interrogating party to locate and identify the records and to ascertain the answer as readily as could the party" to whom the interrogatory is directed.). If this cannot be accomplished sufficiently by reference to business records previously produced, Plaintiffs must provide for inspection the particular documents they assert are responsive to the interrogatory. If the interrogatory cannot be fully answered by reference to business records, Plaintiffs shall provide a traditional-style interrogatory answer.
Finally, Defendant requests that an answer to question 19 be compelled. That interrogatory seeks the "[i]denti[ty of] all professional persons in the field of airport or airfield safety, operations, or wildlife control who currently consider Nicholas B. Carter the world's leading authority on the training and use of border collie[s] for control [of] wildlife on airfields." Motion at 5. Plaintiffs objected on the basis of having previously provided the information in response to Defendant Murphy's interrogatories. See id. Defendant argues "complete answers to [I]nterrogatory 19 are not found" in those answers. Id. at 8. Plaintiff Border Collie Rescue's Responses and Objections to Defendant Murphy's First Set of Interrogatories is attached to the Motion as Exhibit E but contains no question equivalent to Merwin's Interrogatory 19. It is alleged other responses to Ms. Murphy's interrogatories were not received by Ms. Merwin. Motion at 8. Having considered the positions of the parties, the Court concludes Plaintiffs must provide answers to question 19.
In light of the foregoing, the Motion (Doc. #224) is GRANTED to the extent Plaintiffs shall provide answers to the interrogatories at issue within seven (7) days of the date of this Order. With respect to question 17, if Plaintiffs intend to use business records as their response, they must specifically reference the documents which are to serve as their answer or, if the documents cannot be readily identified within the records already produced, Plaintiffs shall provide documents to Defendant for inspection as detailed above. Otherwise, the Motion is DENIED.