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Fair Housing Center of Central Indiana, Inc. v. Welton

United States District Court, S.D. Indiana, Indianapolis Division

June 10, 2019

FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., et al., Plaintiffs,
v.
MARSHALL WELTON, et al., Defendants, MARSHALL WELTON, et al., Counter Claimants,
v.
FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., et al., Counter Defendants.

          ORDER ON PROTECTIVE ORDER

          Doris L. Pryor United States Magistrate Judge

         This 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.

         As an 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.

         I. Background

         This 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 claims.”).

         Here, 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.]

         II. Legal Standard

         Discovery 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).

         III. Discussion

         The 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.

         A. Interrogatories

         Defendants 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.[1] In response, the Plaintiffs maintain that they have only served 96 interrogatories, [2] and that their use of interrogatories complies with the discovery rules and the Magistrate Judge's December 2018 directive.

         The 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 rules.

         i. Number of Interrogatories

         Federal 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.”[3] “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. N.C. 1998).

         One 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.

         ii. Burdensomeness of Plaintiffs' Interrogatory Practice

         The 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 Federal Rules.

         When a 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[1]); 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 allowable interrogatories).

         Pursuant 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' Interrogatories ...


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