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Percell v. Commonwealth, Kentucky Department of Military Affairs

United States District Court, W.D. Kentucky, Louisville Division

September 28, 2018

ANDREA PERCELL PLAINTIFF
v.
COMMONWEALTH OF KENTUCKY KENTUCKY DEPARTMENT OF MILITARY AFFAIRS, et al. DEFENDANTS

          ORDER AND OPINION

          Lanny King, Magistrate Judge

         Judge Rebecca Grady Jennings referred this matter to Magistrate Judge Lanny King for resolution of all litigation planning issues, entry of scheduling orders, consideration of amendments thereto, and resolution of all non-dispositive matters, including discovery issues and discovery motions. (Docket # 37). Defendant, Commonwealth of Kentucky, Kentucky Department of Military Affairs, filed a Motion to Compel complete responses to several written interrogatories. (Docket # 35). Plaintiff, Andrea Percell, filed her Response in opposition, and Defendant filed its Reply. (Docket # 42, 43). This matter is ripe for adjudication. For the reasons set forth below, Defendant's Motion to Compel is granted in part and denied in part. (Docket # 35).

         Background

         This action was brought pursuant to provisions of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., provisions of the Kentucky Civil Rights Act, and Kentucky Revised Statutes 344.010, et seq. Plaintiff filed her initial Complaint on November 15, 2016. (Docket # 1). On February 15, 2017, Defendant filed its Motion for Judgement on the Pleadings (Docket # 12), which Judge Russell denied on May 15, 2017 (Docket # 16). On May 15, 2017, Plaintiff filed her First Amended Complaint. (Docket # 17). On June 5, 2017, Defendant filed a Motion to Dismiss for Failure to State a Claim (Docket # 18), which Judge Russell denied on December 12, 2017 (Docket # 21). On December 18, 2017, Plaintiff filed her Second Amended Complaint. (Docket # 22). On December 21, 2017, Defendant filed a second Motion to Dismiss for Failure to State a Claim. (Docket # 23). After filing the second Motion to Dismiss and during a telephonic status conference with Magistrate Judge King on March 16, 2018, Defendant orally requested to stay discovery until after the pending Motion to Dismiss (Docket # 23) was resolved. (Docket # 29). Magistrate Judge King denied the oral motion to stay. (Id.).

         Under the Amended Scheduling Order, fact discovery closed on August 31, 2018. (Docket # 34). Defendant asserts that it propounded its First Set of Interrogatories and Requests for Production on July 11, 2018. (Docket # 35). Plaintiff served her responses to the interrogatories by first class mail on August 15, 1018, which Defendant received on August 17, 2018. (Docket # 35, 35-1). On August 24, 2018, Defendant filed this Motion to Compel pursuant to Rule 37 of the Federal Rules of Civil Procedure. (Docket # 35). Also, on August 24, 2018, Defendant filed a Motion to Amend/Correct the Scheduling Order. (Docket # 36). On September 4, 2018, Magistrate Judge King held a telephonic status conference and entered an expedited briefing schedule for the pending motions. (Docket # 41).

         Legal Standard Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . .” Fed.R.Civ.P. 26(b)(1). Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense. Albritton v. CVS Caremark Corp., No. 5:13-CV-00218-GNS-LLK, 2016 WL 3580790, at *3 (W.D. Ky. June 28, 2016) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted)). However, the scope of discovery is not unlimited. “On motion or on its own, the court must limit the frequency or extent of discovery . . . if it determines that . . . the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Id. (quoting Fed.R.Civ.P. 26(b)(2)(C)(iii)). The determination of “the scope of discovery is within the sound discretion of the trial court.” Cooper v. Bower, No. 5:15-CV-249-TBR, 2018 WL 663002, at *1 (W.D. Ky. Jan. 29, 2018), recons. denied, 2018 WL 1456940 (W.D. Ky. Mar. 22, 2018) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)).

         Federal Rule of Civil Procedure 33(b)(3) requires the responding party to answer each interrogatory “to the extent it is not objected to.” Fed.R.Civ.P. 33(b)(3). Federal Rule of Civil Procedure 33 is structured such that, in combination with Rule 26(g)(1), both the requesting party and the court may be assured that all responsive, non-privileged materials are being produced, except to the extent a valid objection has been made. Heller v. City of Dall., 303 F.R.D. 466, 487 (N.D. Tex. 2014) (citing Evans v. United Fire & Cas. Ins. Co., 2007 WL 2323363, at *1, 3 (E.D. La. Aug. 9, 2007) (emphasis in original)). A party seeking discovery may move for an order compelling an answer under Rule 33. Fed.R.Civ.P. 33(B)(iii).

         Pursuant to Rule 37 of the Federal Rules of Civil Procedure, “a party may move for an order compelling disclosure or discovery, ” provided that the party certifies to the Court that it has, in good faith, conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Fed.R.Civ.P. 37(a)(1); see Id. at (a)(3)(B)(iii)-(iv) (providing that a party may move to compel answers to interrogatories submitted under Rule 33). The party who files a motion to compel discovery “bears the burden of demonstrating relevance.” Albritton v. CVS Caremark Corp., No. 5:13-CV-00218-GNS-LLK, 2016 WL 3580790, at *3 (W.D. Ky. June 28, 2016).

         Analysis

         Defendant filed this Motion to Compel pursuant to Rule 37 of the Federal Rules of Civil Procedure. (Docket # 35). At issue are Interrogatory Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, and 16, propounded upon Plaintiff on July 11, 2018 (First Set of Interrogatories and Requests for Production, Docket # 35-1). Plaintiff responded to each of the requests.

         Each of the contested discovery requests are “contention” interrogatories that “seek to clarify the basis for or scope of an adversary's legal claims.” Starcher v. Corr. Med. Sys., Inc., 144 F.3d 418, 421 n.2 (6th Cir. 1998) aff'd sub nom. Cunningham v. Hamilton Cnty., Ohio, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). The Sixth Circuit Court of Appeals has stated that the “general view is that contention interrogatories are a perfectly permissible form of discovery, to which a response ordinarily would be required.” Starcher, 144 F.3d at 421 n.2. “It is widely accepted that ‘contention interrogatories' which ask a party to state the facts upon which it bases a claim or defense, are a permissible form of written discovery.” Davis v. Hartford Life & Accident Ins. Co., No. 3:14-CV-00507-TBR, 2015 WL 7571905, at *5 (W.D. Ky. Nov. 24, 2015) (quoting Alexander v. Hartford Life & Acc. Ins. Co., No. 3-07-CV-1486-M, 2008 WL 906786, at *4 (N.D. Tex. Apr. 3, 2008)). Furthermore, Rule 33(a)(2) of the Federal Rules of Civil Procedure states that “[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact.” Fed.R.Civ.P. 33(a)(2). When a party is asked to provide “contention type discovery [the party] must identify the witnesses and documents he/she has marshaled . . . and to help illuminate the issues to be resolved as the responses and answers are due.” Davis, 2015 WL 7571905, at *5 (W.D. Ky. Nov. 24, 2015) (quoting Burnett & Morand P'ship v. Estate of Youngs, No. 3:10-CV-3-RLY-WGH, 2011 WL 1237950, at *3 (S.D. Ind. Apr. 4, 2011)).

         In her responses to most[1] of the contention interrogatories, Plaintiff objects as they require her to provide a lengthy explanation that can be explored through deposition(s). Defendant argues that the opportunity to discuss the matters further in a deposition is not an appropriate objection as set forth in the Federal Rules of Civil Procedure. Plaintiff fails to explain or cite any authority for the proposition that she is not required to answer written discovery, despite its broad scope, because those questions may be better explored through deposition.

         Instead, Plaintiff repeatedly relies on three cases where courts have either affirmed a magistrate judge's order that denied a motion to compel responses to contention interrogatories due to prematurity or outright denied a motion to compel responses to contention interrogatories because of prematurity. See e.g. FDIC v. Butcher, 116 F.R.D. 203, 204 (E.D. Tenn. 1987); In re Convergent Techs. Sec. Litig., 108 F.R.D. 328, 334 (N.D. Cal. 1985); Penn Cent. Transp. Co. v. Armco Steel Corp., 27 Ohio Misc. 76, 80, 271 N.E.2d 877 (Ct. Com. Pl. 1971). However, Plaintiff fails to show how these contention interrogatories are premature when they were sent less than two months before discovery was set to close. “The general policy is to defer contention seeking interrogatories until discovery is near an end in order to promote efficiency and fairness.” See e.g., Thomas & Betts Corp. v. Panduit Corp., No. 93 C 4017, 1996 U.S. Dist. LEXIS 4494, 1996 WL 169389, at *2 (N.D.Ill. Apr. 9, 1996); Everett v. USAir Group, Inc., 165 F.R.D. 1, 3 (D.D.C. 1995); Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 110-11 (D.N.J. 1990). Therefore, Plaintiff's objections that these “lengthy explanations” may be better explored through deposition(s) are overruled.

         In addition to the blanket objection that Plaintiff is not required to respond to the interrogatories because they may be explored through deposition, Plaintiff raises objections and arguments to specific interrogatories.

         For Interrogatories Nos. 1 and 2, Defendant seeks the facts surrounding Plaintiff's claims for sex and race discrimination.

Interrogatory No. 1: Describe in detail the facts surrounding the claim in paragraph 29[2] of your Second Amended Complaint that the Kentucky Department of Military Affairs (“KDMA”) has discriminated against you on the basis of your sex, including but not limited to:
a) the substance of allegations;
b) the dates of occurrence;
c) the identity of all persons engaging in conduct that you believe constituted such discrimination; and
d) the identity of any witness involved.
Interrogatory No. 2: Describe in detail the facts surrounding the claim in paragraph 29 of your Second Amended Complaint that the KDMA has discriminated against you on the basis of your race, including but not limited to:
a) the substance of allegations;
b) the dates of occurrence;
c) the identity of all persons engaging in conduct that you believe constituted such discrimination; and
d) the identity of any witness involved.

(Docket # 35-1). Plaintiff points to the allegations in the Second Amended Complaint that she requested to be placed into higher pay Grades but was denied on the basis of her sex and race, respectively. (Id.; see Docket # 22). In the Response, Plaintiff specifies that, at least for Interrogatory No. 1, paragraphs 12, 13, 15, and 16 in the Second Amended Complaint sufficiently respond to the request. (Docket # 42). Plaintiff fails to specify which paragraphs in the Second Amended Complaint respond to Interrogatory No. 2.

         For Interrogatory Nos. 1 and 2, Plaintiff argues that, to the extent Defendant may be seeking additional information, such a request would be asking her to provide a narrative account of her case, which is overbroad and unduly burdensome. In High Point SARL v. Sprint Nextel Corp., No. 09-2269-CM-DJW, 2011 U.S. Dist. LEXIS 103118, at *58 (D. Kan. Sep. 12, 2011), the court noted that “[i]nterrogatories should not require the answering party to provide a narrative account of its case. The court will generally find them overly broad and unduly burdensome on their face to the extent they ask for ‘every fact' which supports identified ...


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