United States District Court, S.D. Indiana, Indianapolis Division
FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., et al., Plaintiffs,
MARSHALL WELTON, et al., Defendants, MARSHALL WELTON, et al., Counter Claimants,
FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., et al., Counter Defendants.
ORDER ON PROTECTIVE ORDER
L. Pryor United States Magistrate Judge
matter comes before the Court on the Defendants' Motion
for Protective Order (Dkt. 176). The Defendants filed this
Motion on March 11, 2019, requesting that the Court enter a
protective order requiring the Plaintiffs to seek leave to
serve additional interrogatories and submit a verified
statement with each new request for production. The
Defendants are also requesting to stay all discovery related
to the personal financial information of Marshall Welton and
Natalia Villanueva until after the Court has ruled on
Defendants' forthcoming motion for summary judgment.
[Dkt. 177 at 28.] Fair Housing Center of Central Indiana,
Inc. (“FHCCI”), in its capacity as Counterclaim
Defendant, filed a response brief on March 25, 2019. The
Plaintiffs filed their response on March 26, 2019, and the
Defendants filed a reply on April 1, 2019.
initial matter, the Court notes that the Plaintiffs'
March 26, 2019 response is untimely pursuant to Southern
District of Indiana Local Rule 7-1(c)(2)(A), and Plaintiffs
did not seek leave to file their response after the deadline
had passed. Pursuant to Local Rule 7-1(c)(4), the Court may
summarily rule on a motion if an opposing party does not file
a response within the deadline. Plaintiffs' counsel is
reminded to review the Southern District of Indiana's
Local Rules and advised that any future untimely responses
may result in the Court summarily ruling.
action was filed on April 10, 2018, and since that time this
case has been plagued with numerous discovery disputes. On
December 18, 2018, the Undersigned conducted a discovery
conference to address the Defendants' concern regarding
the number of interrogatories the Plaintiffs had served on
the Defendants. During that conference, the Court
acknowledged that discovery would be extensive by virtue of
the number of parties, claims, and counterclaims involved in
the case. In an effort to strike a balance between adequate
discovery and keeping litigation costs down, the Magistrate
Judge required the Defendants to answer fifty-six (56) of the
Plaintiffs' general interrogatories. The parties also
agreed that the Plaintiffs would be allowed to serve five (5)
specific interrogatories for each individual Plaintiff. Once
a party served its five specific interrogatories, it would be
required to obtain leave of court to serve additional
interrogatories. (Pls.' Mot. for Order Directing Answer
to Interrog.; [Dkt. 137 at 1-2]) (“at yesterday's
discovery conference the Court directed that defendants will
answer interrogatories 28-56, that each plaintiff will have
an additional five interrogatories, and that plaintiffs may
submit additional interrogatories for preclearance by the
Court.”); (Defs.' Br. in Opp'n to Pls.'
Mot. to Compel; [Dkt. 201 at 2]) (“It is
Defendants' understanding that the Court ruled that out
of the Interrogatories Plaintiffs had served, Defendants were
only required to respond up to Interrogatory No. 56. Then,
each Plaintiff would have 5 additional interrogatories to
address the unique circumstances surrounding his or her
the Defendants argue that since that December discovery
conference, the Plaintiffs have drastically inflated the
Defendants' discovery costs and unnecessarily stalled
this litigation by serving 183 interrogatories, 231 requests
for production, and 98 requests for admission, which prompted
the Defendants to request a protective order to limit
discovery. [Dkt. 27 at 27.]
is a mechanism to avoid surprise, disclose the nature of the
controversy, narrow the contested issues, and provide the
parties a means by which to prepare for trial. 8 Wright &
Miller, Federal Practice and Procedure § 2001,
at 44-45 (2d ed. 1994). To effectuate these purposes, the
federal discovery rules are liberally construed. Spier v.
Home Ins. Co., 404 F.2d 896 (7th Cir. 1968). See also 8
Wright & Miller, Federal Practice and Procedure
§ 2001, at 44 (2d ed. 1994). However, the Court must
restrict the frequency and extent of discovery otherwise
permitted under the rules if it determines that “(i)
the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive . . .
or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
Magistrate judges enjoy extremely broad discretion in
controlling discovery. Jones v. City of Elkhart,
Ind., 737 F.3d 1107, 1115 (7th Cir. 2013).
Defendants have requested that the Court enter a protective
order (1) requiring Plaintiffs to seek leave of the Court
before serving additional Interrogatories and Requests for
Production; (2) requiring Plaintiffs to submit a verified
statement with each new request for production that states
they have reviewed Defendants' previous productions, and
the new request does not seek documents already contained in
Defendants' previous productions, and (3) staying the
production of all discovery related to the personal financial
information of Marshall Welton and Natalia Villanueva until
after the Court has ruled on Defendants' forthcoming
motion for summary judgment. [Dkt. 177 at 28.] The
Undersigned will address each argument in turn.
seek a protective order preventing Plaintiffs from serving
any additional interrogatories without leave of the Court.
Defendants assert that, when accounting for subparts, the
Plaintiffs have served 183 interrogatories and that the
Plaintiffs' use of interrogatories has become excessive,
abusive, and overly burdensome and disregards the Magistrate
Judge's December 18, 2018 discovery
directive. In response, the Plaintiffs maintain that
they have only served 96 interrogatories,  and that their
use of interrogatories complies with the discovery rules and
the Magistrate Judge's December 2018 directive.
Court will first address and determine the number of
interrogatories that have been served and then discuss
whether Plaintiffs' interrogatory practice exceeds the
boundaries set by the Magistrate Judge and the discovery
Number of Interrogatories
Rule of Civil Procedure 33 governs the use of
interrogatories. Rule 33(a)(1) expressly forbids a party from
serving more than 25 interrogatories upon another party
“[w]ithout leave of court or written
stipulation.” “This limitation is not meant
‘to prevent needed discovery, but to provide some
judicial scrutiny before parties make potentially excessive
use of this discovery device.'” Illiana Surgery
& Med. Ctr. LLC v. Hartford Fire Ins. Co., No. 2:07
CV 3, 2008 WL 5111358, at *2 (N.D. Ind. Dec. 1, 2008) citing
(8A Wright & Miller, Federal Practice and
Procedure § 2168.1, at 262 (2d ed. 1994) (quoting
Advisory Committee Notes, 146 F.R.D. 401, 676). Moreover,
this limit increases the efficiency of the interrogatory
practice by forcing parties to make prudent and constructive
use of their 25 written interrogatories. Capacchione v.
Charlotte-Mecklenburg Sch., 182 F.R.D. 486, 492 (W.D.
issue that has arisen in implementing the numerical limit
contained in Rule 33(a) is how interrogatories should be
counted. This Court and other district courts in this Circuit
often follow the rule that each subpart of an interrogatory
is treated as an individual interrogatory unless it is
“logically or factually subsumed within and necessarily
related to the primary question.” Slabaugh v. State
Farm Fire & Cas. Co., No. 1:12-cv-01020-RLY-MJD,
2013 WL 4777206, at *3 (S.D. Ind. Sept. 5, 2013) (citing
Bell v. Woodward Governor Co., No. 03 C 50190, 2005
WL 3829134, at *1 (N.D. Ill. June 30, 2005); Kendall v.
GES Exposition Servs., Inc., 174 F.R.D. 684, 685 (D.
Nev. 1997)); see Eckweiler v. NiSource, Inc., No.
2:17-CV-434-JTM-JEM, 2018 WL 6011872, at *3 (N.D. Ind. Nov.
16, 2018); C & N Corp. v. Kane, No. 12-C-0257,
2013 WL 74366, at *2 (E.D. Wis. Jan. 7, 2013). Extensive use
of subparts, whether explicit or implicit, could defeat the
purposes of the numerical limit contained in Rule 33(a) 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. Safeco of Am. v.
Rawstron, 181 F.R.D. 441, 443 (C.D. Cal. 1998). The
Court has reviewed Plaintiffs' interrogatories and
determines that, when accounting for subparts, Plaintiffs
have served 131 interrogatories.
Burdensomeness of Plaintiffs' Interrogatory Practice
Defendants argue that the Plaintiffs' interrogatories, no
matter whether the number totals 96, 131, or 183, have become
burdensome, excessive, and cumulative and request that this
Court limit any further service of interrogatories without
leave. The Plaintiffs assert that their discovery requests
are necessary to their discovery strategy and comply with the
party is confronted with what it believes to be an excessive
number of interrogatories, the appropriate course of action
is to either move for a protective order before answering any
interrogatories or “answer up to the numerical limit
and object to the remainder without answering.”
Capacchione, 182 F.R.D. at 493 n.4 (W.D. N.C. 1998)
(citing 7 Moore's Federal Practice §
33.30); Paananen v. Cellco P'ship, No.
CO8-1042, 2009 WL 3327227, at *5 (W.D. Wash. 2009)
(“[T]he best rule, and the one this Court applies here,
is that a responding party must answer the first 25
interrogatories.”). If a party, instead, decides to
answer some or all of the allegedly excessive
interrogatories, it waives its objection that the requesting
party has violated Rule 33's limit on the number of
interrogatories a party may serve. Knit With v. Knitting
Fever, Inc., 2010 WL 11474937, at *1 n.2 (E.D. Pa. Jan.
22, 2010) (“Notwithstanding [d]efendant's
non-waiver statement, it remains established that if a party
selectively answers interrogatories, it has waived its
objections [under Rule 33(a)] as to the remaining
interrogatories.”); Capacchione, 182 F.R.D. at
492 (“Yet, CMS, by responding to Interrogatories 21-25
without moving for a protective order, waived any objection
on grounds of the twenty-interrogatory limit.”);
Herdlein Techs., Inc. v. Century Contractors, Inc.,
147 F.R.D. 103, 104-05 (W.D. N.C. 1993) (finding that
answering interrogatories in excess of the numerical limit
constituted a waiver of an argument based on the number of
to the December 2018 discovery conference and the Court's
January 2019 Order, [Dkt. 143], the Defendants agreed to
answer Plaintiffs' Interrogatories 1-57, 60-63, and five
(5) specific interrogatories from each Plaintiff. The
Plaintiffs confirmed that the Defendants followed this agreed
approach and responded to Interrogatories 1-57 and 60-63.
[Dkt. 192 at 10.] Moreover, the Defendants have responded to
additional written interrogatories, including Plaintiffs'