United States District Court, D. Colorado
KRISTEN L. MIX MAGISTRATE JUDGE
This matter is before the Court on the Denver Defendants’ Motion for Protective Order [#663] (the “Motion”). Plaintiff filed a Response [#684] in opposition to the Motion, and the Denver Defendants filed a Reply [#696]. The Court has considered the Motion, the Response, the Reply, the case record, and the applicable law, and is fully advised in the premises.
The Denver Defendants argue that Plaintiff has exceeded the permitted number of interrogatories and requests for production. They concede that “Plaintiff’s individually numbered requests are below the limit imposed by the Court, ” but argue that the number of discrete subparts included exceeds the number of permitted interrogatories and requests for production. Motion [#663] at 2-3.
First, as an initial matter, to the extent that Plaintiff argues that he is permitted by the Federal Rules of Civil Procedure to serve 25 interrogatories and 25 requests for production on each Defendant, he is incorrect. See Response [#684] at 2. For example, Fed.R.Civ.P. 33(a) states in part: “Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” (emphasis added). At the Scheduling Conference held in this case, the Court divided the numerous Defendants in this matter into four groups and permitted Plaintiff to serve 25 written interrogatories on each group of Defendants. See Minutes [#413]; see also Fed. R. Civ. P. 26(b)(2)(A) (“By order, the court may alter the limits in these rules on the number of . . . interrogatories . . . .”). Plaintiff was later permitted an additional five interrogatories per Defendant group (except for the Delta Defendants). See Minutes [#643]. The same is true with respect to requests for production. See Id. Thus, Plaintiff was permitted to serve a total of 30 interrogatories on the Denver Defendants and 30 requests for production on the Denver Defendants.
“Identifying a ‘discrete subpart’ is often one of the more difficult tasks presented to a court.” Shell v. Am. Family Rights Ass’n, No. 09-cv-00309-MSK-KMT, 2012 WL 3778285, at *1 (D. Colo. Aug. 30, 2012).
When Rule 33(a) was amended to limit the number of interrogatories that can be propounded, the draftsmen appreciated that the numerical restriction could be evaded by joining as ‘subparts' questions that seek information about discrete separate subjects. . . While a draconian approach would be to view each participial phrase as a subpart, the courts have instead attempted to formulate more conceptual approaches, asking whether one question is subsumed and related to another or whether each question can stand alone and be answered irrespective of the answer to the others. But, as another court has stated, this is anything but a bright-line test.
Id. (internal citations and quotation marks omitted). As an example of how to view the difference between separate interrogatories:
Lawyers, sensitive to the numerical restriction, also subdivide interrogatories so that after they introduce a topic, they demand to know in detail all the particulars about it, frequently introducing their specific demands with the phrase “including but not limited to.” Thus, they may ask their opponent to state whether a particular product was tested and then demand to know when the tests occurred, who performed them, how and where they were conducted and the result. In such a situation, all the questions relate to a single topic, testing, and it would unfair and draconian to view each of the demands as a separate interrogatory. This approach ends, however, the moment the interrogatory introduces a new topic that is in a distinct field of inquiry. Thus, in the “testing” example, asking how the results of the tests were used in any advertising about the product’s fitness for a particular purpose would have to be viewed as a separate interrogatory.
Id. (quoting Banks v. Office of Senate Sergeant–at–Arms, 222 F.R.D. 7, 10 (D.D.C. 2004)).
The bulk of the Denver Defendants’ objections revolve around two concerns. First, they argue that “Plaintiff seeks information and documents relating to four separate encounters . . . with Denver Police officers. These incidents do not involve the same officers nor do they take place in the course of one day. Rather, these are discrete incidents that occurred over a period of approximately two years and involve nine different officers and four different locations.” Motion [#663] at 4. Second, the Denver Defendants generally argue that any request for production that requires production from two or more distinct agencies (e.g., the Denver Police Department and the Denver Sheriff’s Department) constitutes two or more discrete subparts. See, e.g., id. at 6.
While the Denver Defendants provide general case law regarding Fed.R.Civ.P. 33(a), they direct the Court’s attention to only one unpublished trial court decision supporting their specific arguments that these types of written discovery requests should be considered as multiple interrogatories or requests for production. See Wildearth Guardians v. Pub. Serv. Co. of Colo., No. 09-cv-01862-ZLW-MEH, 2010 WL 5464313 (D. Colo. Dec. 29, 2010) (“The Court finds that the information requested is related (identity of harm, persons affected and supporting evidence) . . . but is sought for three separate events. Thus, Interrogatory No. 8 contains separate and distinct subparts that shall be counted as three separate interrogatories.”). Plaintiff’s Third Amended Complaint [#254] discusses all four incidents at issue here, which the Denver Defendants do not contest. Plaintiff therefore has a right to conduct discovery with respect to all four incidents, and the Denver Defendants provide no binding authority supporting their contention that each discovery question need be limited to only a single incident, especially here where Plaintiff has asserted a conspiracy claim connecting all four of these incidents. See Order [#390] at 8-9. The same reasoning is true regarding requests that may require a response from more than one agency.
As the Denver Defendants note, many decisions in this district cite to and adopt the test stated in Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684 (D. Nev. 1997). Motion [#663] at 3 (citing Jaramillo v. Adams Cnty. Sch. Dist., No. 09-CV-02243-RPM-MEH, 2010 WL 1839329, *3 (D. Colo. May 6, 2010); Kovacs v. Hershey Co., No. 04-cv-1881-WYD-BNB, 2006 WL 1980291, *4-5 (D. Colo. July 13, 2006), rev’d on other grounds). The Kendall court stated:
[T]he more difficult question is determining whether the subparts are logically or factually subsumed within and necessarily related to the primary question. . . . [T]he mere inclusion of “and” or “also” in a question (or double question) does not automatically mean the questions are separate or “discrete” and not subsumed within the initial or primary question. Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. However, discrete or separate questions should be counted as separate interrogatories, notwithstanding they are joined by a conjunctive word and may be related.
Kendall, 174 F.R.D. at 685-86 (internal quotation marks omitted). In other words, subparts “directed at eliciting details concerning a common theme should be considered a single question.” 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2168.1 (3d. ed. 2010). For example, “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 ...