Folz v. Union Pacific Railroad Company et al

Filing 27

ORDER Regarding The Parties' Discovery Letter Briefs Dated January 27, 2014: As to Plaintiff's special interrogatories one, two, three, and four, Plaintiff's request to compel is denied. As to Plaintiff's request for production of documents numbers ten, twelve, thirteen, and eighteen, Plaintiff's request to compel is denied. Signed by Magistrate Judge Peter C. Lewis on 1/29/2014. (mdc)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

9
10
11
12
13
14

Case No. 13-CV-00579-GPC-(PCL)

DELBERT FOLZ,

v.

Plaintiff, ORDER REGARDING THE
PARTIES’ DISCOVERY LETTER
BRIEFS DATED JANUARY 27, 2014

UNION PACIFIC RAILROAD
COMPANY,
Defendant.

15
16
17

I. INTRODUCTION

18

Plaintiff filed his complaint on March 13, 2013, alleging three causes of

19 action, in short: (1) personal injury damages, pursuant to the Federal Employer’s
20 Liability Act 45 U.S.C. section 51, et seq.; (2) damages resulting from wrongful
21 discipline, pursuant to 49 U.S.C. section 20109; and (3) wrongful discharge. (Doc.
22 1.) Defendant answered the complaint on August 16, 2013, raising thirty-nine
23 affirmative defenses. (Doc. 4.)

The parties supplied the Court with letter briefs on the issue of whether

24

25 Defendant should be compelled to answer special interrogatories one through four,
26 or produce documents prior to Defendant’s first deposition of Plaintiff, scheduled
27 for February 4, 2014. Now before the Court is this issue, argued in letter briefs
28 received by the Court on January 27, 2014.

///

1

II. DISCUSSION

2

A. Contention Interrogatories

3

On October 24, 2013, Plaintiff Propounded four special interrogatories

4 pursuant to Fed.R.Civ.P. 33. (See Plaintiff’s Brief, Exhibit 6.)1/ Defendant objected
5 to interrogatories one, two, and four, primarily because, as contention
6 interrogatories propounded early in discovery, they were “premature”; to wit,
7 “Neither substantial discovery nor testimonial discovery has been completed.”
8 (Plaintiff’s Brief, Exhibit 7, at 3-5.) In addition, Defendant claims responding to
9 the third interrogatory would, “necessarily require a legal opinion and the
10 disclosure of work product.” (Id. at 5.)
11

At the outset, it is worth noting that no party has an absolute right to have

12 answers to any kind of interrogatory. Fed.R.Civ.P. 33(b). An interrogatory must be
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1. From Plaintiff’s Brief, Exhibit 6, Plaintiff’s first interrogatory reads: “Please identify any
UNION PACIFIC rule, regulation, safety bulletin, instruction, timetable instruction, order or
direction which YOU contend plaintiff failed to follow which supports YOUR contention that
plaintiff was contributory[sic] negligent in causing or contributing to the happening of the
INCIDENT and, further, state all material facts in support of YOUR contention, the name(s), last
known resident ADDRESS and home and cell number of all PERSON(s) who have knowledge of
any such facts and describe sufficient for their identification all material DOCUMENTS evidencing
and/or constituting any such facts.”
Plaintiff’s second interrogatory reads: “Describe in detail each of your contentions as to how
and why the INCIDENT was caused to occur, giving in chronological order, the details of material
event or sequence of events which YOU contend had any bearing on the cause or manner of the
happening of the INCIDENT, all material facts in support of YOUR contention, the name(s), last
known resident ADDRESS and home and cell number of all PERSON(s) who have knowledge of
any such facts and describe sufficient for their identification all material DOCUMENTS evidencing
and/or constituting any such facts.”
Plaintiff’s third interrogatory reads: “If you contend that plaintiff has said anything which
constitutes an admission against interest regarding the manner in which the INCIDENT was caused
to occur, please state all material facts upon which YOUR contention is based, the date and content
of each such statement, the name(s), last known resident ADDRESS and home and cell number of
all PERSON(s) who have knowledge of any such facts and describe sufficient for their identification
all DOCUMENTS evidencing and/or constituting any such facts.”
Plaintiff’s fourth interrogatory reads: “If YOU contend plaintiff was contributorily negligent
in causing or contributing to the happening of the INCIDENT, please state all material facts in
support of YOUR contention, the name, last known resident ADDRESS and telephone number of
all PERSONS who have knowledge of any such facts and describe sufficient for their identification
all material DOCUMENTS in support of YOUR contention.”
13-cv-00579-GPC-(PCL)

2

1 “otherwise proper,” which is determined by considering, inter alia, whether it is
2 interposed for any improper purpose, or whether it is “unreasonable or unduly
3 burdensome or expensive, given the needs of the case, the discovery already had in
4 the case, the amount in controversey, and the importance of the issues at stake in
5 the litigation.” (See Fed.R.Civ.P. 26(g).)
6

Generally speaking, contention interrogatories ask the receiving party to

7 state the factual bases for its allegations, as Plaintiff’s have done here. (See, e.g.,
8 Plaintiff’s Brief, Exhibit 6, at 3, “state all material facts in support of your
9 contention.”) The purpose of contention interrogatories “is not to obtain facts, but
10 rather to narrow the issues that will be addressed at trial and to enable the
11 propounding party to determine the proof required to rebut the respondent’s
12 position.” Lexington Ins. Co. v. Commonwealth Ins. Co., C98–3477CRB (JCS),
13 1999 WL 33292943, *7 (N.D.Cal. Sept. 17, 1999). Federal Rule of Civil Procedure
14 33 states that “[a]n interrogatory is not objectionable merely because it asks for an
15 opinion or contention that relates to fact or the application of law to fact, but the
16 court may order that the interrogatory need not be answered until designated
17 discovery is complete, or until a pretrial conference or some other time.”
18 Fed.R.Civ.P. 33(a)(2). There is no dispute that, at some time, the party answering
19 contention interrogatories will have to respond fully to these discovery requests.
20 However, many courts have found that, within the framework of Rule 33,
21 contention interrogatories need not be answered until the substantial completion of
22 pretrial discovery. (See, e.g., In re eBay Seller Antitrust Litig., C 07-1882 JF (RS),
23 2008 WL 5212170 (N.D. Cal. Dec. 11, 2008), citing City & County of San
24 Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 222 (N.D.Cal.2003) (determining
25 that plaintiffs need not respond to defendants' broad contention interrogatories at
26 the early stage of litigation) and Fischer & Porter Co. v. Tolson, 143 F.R.D. 93, 96
27 (E.D. Pa. 1992) (denying contention interrogatories where substantial discovery
28 had not been completed).)
13-cv-00579-GPC-(PCL)

3

1

Accordingly, courts are reluctant to allow contention interrogatories,

2 especially when the responding party has not yet obtained enough information
3 through discovery to respond. (See, e.g., In re Convergent Technologies Securities
4 Litigation, 108, F.R.D. 328, 338 (1985) (“the propounding party must present
5 specific, plausible grounds for believing that securing early answers to its
6 contention questions will materially advance the goals of the Federal Rules of Civil
7 Procedure.” accord United States v. Bazaarvoice, Inc., C 13-00133 EMC LB, 2013
8 WL 1739472 (N.D. Cal. Apr. 22, 2013); but c.f., Cable & Computer Tech., Inc. v.
9 Lockheed Saunders, Inc., 175 F.R.D. 646, 652 (C.D. Cal. 1997) (“this Court
10 prefers to consider contention interrogatories in the same manner it would consider
11 any interrogatory, placing the burden on the party opposing discovery.”) Courts
12 recognize, however, that contention interrogatories, when served after substantial
13 discovery is complete, may be appropriate. See, e.g., Tennison v. City & Cnty. of
14 San Francisco, 226 F.R.D. 615, 618 (N. D.Cal.2005) (granting motion to compel
15 responses to contention interrogatories where “discovery is nearly complete, and
16 hence Plaintiff is in a position to provide meaningful answers”); Lexington Ins.
17 Co., supra (“courts have also recognized that properly timed contention
18 interrogatories may in certain cases be the most reliable and cost-effective
19 discovery device, which would be less burdensome than depositions at which
20 contention questions are propounded”) (quotation omitted).
21

Further, even when contention interrogatories are permitted, they “are often

22 overly broad and unduly burdensome when they require a party to state ‘every fact’
23 or ‘all facts' supporting identified allegations or defenses.” Haggarty v. Wells
24 Fargo Bank, N.A., 10–2416 CRB (JSC), 2012 WL 4113341, *2 (N.D.Cal. Sept. 18,
25 2012) (quoting Mancini v. Insurance Corp. of New York, 2009 WL 1765295 *3
26 (S.D. Cal. June 18, 2009). In such cases, ‘all facts’ is generally construed as those
27 facts which are material. See Mancini, 2009 WL 1765295, supra.
28

Here, each of Plaintiff’s interrogatories asks for “all material facts upon
13-cv-00579-GPC-(PCL)

4

1 which [Defendant’s] contention is based.” (See Plaintiff’s Brief, Exhibit 6.)
2 Plaintiff agrees that his interrogatories, “may be understood to refer to ‘the
3 principle or material facts’ that support the allegation referenced by the
4 interrogatory.” (Plaintiff’s Brief, at 2.) Therefore, Plaintiff’s interrogatories fit
5 within one of the many general forms of contention interrogatories. (See In re
6 Convergent, 108 F.R.D., 332.)
7

Plaintiff argues that Defendant would glean “an unfair litigation advantage”

8 by taking Plaintiff’s deposition before answering the contention interrogatories it
9 propounded, and that Defendant has a duty to investigate and respond. (Plaintiff’s
10 Brief, at 4.) Further, Plaintiff argues that early disclosure of factual bases will
11 narrow the issues. (Id.) Lastly, Plaintiff argues that Federal Rule of Civil Procedure
12 11 requires that Defendant must have some factual basis for its affirmative defense
13 of contributory negligence at this time. (Id.)
14

Defendant argues that its discovery and investigation are nascent, and there

15 is no pretext in delaying its answer to Plaintiff’s contention interrogatories.
16 (Defendant’s Brief, at 2.) For example, Defendant states that it has not had the
17 opportunity to take Plaintiff’s deposition or medical examination, and therefore it
18 would be “impossible” to state all facts which support its contentions. (Defendant’s
19 Brief, at 2.) Further, Defendant correctly points out that, because there are eight
20 more months of discovery in which it may supplement its responses, there is no
21 reason to be “hemmed into a fixed position without adequate information.”
22 (Defendant’s Brief, at 2, citing Weiss v. Nat’l Westminster Bank, PLC (E.D.N.Y.
23 2007) 242 F.R.D. 33, 64.)
24

This Court agrees with Defendant that Plaintiff’s contention interrogatories

25 need not be answered until “substantial discovery” has been completed, given the
26 proposition that Defendant will adequately answer and/or supplement its responses
27 in the future. Because Defendant claimed, and responded accordingly in its
28 answers, that discovery and investigation were currently inadequate and ongoing
13-cv-00579-GPC-(PCL)

5

1 (see Plaintiff’s Brief, Exhibit 7), this Court finds “substantial discovery” currently
2 remains. In light of the remaining eight months to complete discovery, Defendant
3 will have more than adequate time to supplement his answers. (C.f. County of
4 Santa Clara v. Astra USA, Inc., No. 05–cv–3740 WHA (EMC), 2009 WL
5 2868428, at *2 (N.D.Cal. Sept. 3, 2009) (in which the court refused to delay
6 contention interrogatories when less than two months of discovery remained); see
7 also In re NCAA Student-Athlete Name & Likeness Licensing Litig.,
8 09-CV-01967 CW NC, 2012 WL 4111728 (N.D. Cal. Sept. 17, 2012).) At this
9 stage, if Defendant is unable to supply the requested information, “the party may
10 not simply refuse to answer, but must state under oath that he is unable to provide
11 the information and ‘set forth the efforts he used to obtain the information.’ ”
12 (Sevey v. Soliz, No. 10–cv–3677 LHK, 2011 WL 2633826, at *4 (N.D.Cal. July 5,
13 2011) (citations omitted).) Defendant has satisfied that burden. Therefore,
14 Plaintiff’s request to compel in regards to special interrogatories one, two, and four
15 is denied.
16

As to Plaintiff’s third interrogatory, the Court agrees with Defendant that the

17 statements are privileged by work-product. The party claiming the privilege has the
18 initial burden of “establishing the preliminary facts necessary to support its
19 exercise, i.e., a communication made in the course of an attorney-client
20 relationship.” (Costco Wholesale Corp. v. Superior Court (Randall), 47 Cal.4th
21 725, 733 (2009).) Once that is established, “the communication is presumed to
22 have been made in confidence and the opponent of the claim of privilege has the
23 burden of proof to establish the communication was not confidential or that the
24 privilege does not for other reasons apply.” (Id.) Here, any identification of
25 Plaintiff’s statements against interest are necessarily legal opinions, and therefore
26 privileged. Plaintiff has failed to satisfy its burden of proof establishing that
27 Defendant’s privilege does not apply. Therefore, Plaintiffs request to compel
28 answer to its third interrogatory is denied.
13-cv-00579-GPC-(PCL)

6

1

B. Request for Production of Documents

2

On December 13, 2013, Defendant responded to Plaintiff’s request for

3 production of documents. (Plaintiff’s Brief, Exhibit 8.) Defendant objected: to
4 Request No. 10, on the basis of the work-product doctrine; Request No. 12, on the
5 basis of overbreadth, privacy concerns, and relevance; Request No. 13, on the basis
6 of the work-product doctrine and attorney-client privilege; and Request No. 18,
7 because of inability to respond prior to deposition of the Plaintiff, lack of medical
8 records, and lack of adequate discovery. (Id.)
9
10

1. Requests No. 10 and No. 13
Request No. 10 asks Defendants to produce logs that accompanied

11 photographs, which the Plaintiff asserts identifies the photographs and describes,
12 “in neutral language where the photographs were taken at.” (Plaintiff’s Brief, at 6.)
13 Defendants argue that the photo log was, “made at the direction of an attorney in
14 preparation for trial.” (Defendant’s Brief, at 4.) Request No. 13 asks for: “any/all
15 documents which constitute, comprise, refer to and/or evidence photographs...
16 Taken of plaintiff by any of your agents or employees since February 7, 2012.”
17 (Plaintiff’s Brief, Exhibit 8, at 8.) Essential, these requests are both aimed at the
18 photo log Defendant ostensibly possesses.
19

Work product is not a privilege, but rather a qualified protection limiting

20 discovery of “documents and tangible things” prepared by a party or his
21 representative in anticipation of litigation or trial. (Admiral Ins. Co. v. United
22 States Dist. Court, 881 F.2d 1486, 1494 (9th Cir.1989).) A party asserting work
23 product privilege must show that the materials withheld are: (1) documents and
24 tangible things; (2) prepared in anticipation of litigation; and (3) the materials were
25 prepared by or for the party or attorney asserting the privilege. (Garcia v. City of El
26 Centro, 214 F.R.D. 587, 591 (S.D.Cal.2003).) A document is prepared “in
27 anticipation of litigation” if “in light of the nature of the document and the factual
28 situation in the particular case, the document can be fairly said to have been
13-cv-00579-GPC-(PCL)

7

1 prepared or obtained because of the prospect of litigation.” (United States v. Torf,
2 357 F.3d 900, 907 (9th Cir.2003) (citation omitted) (emphasis added).)
3

Even if a document is work product, Fed.R.Civ.P. 26(b)(3)(A) (ii) permits a

4 party to obtain discovery of work product only on a showing of “substantial need”
5 for the documents and an inability to obtain equivalent information from other
6 sources. Even when a court orders disclosure of work product, it must insure that
7 “mental impressions, conclusion, opinions, or legal theories of a party's attorney or
8 other representative concerning the litigation” are not disclosed. (Fed.R.Civ.P.
9 26(b)(3)(B).) The party claiming work-product protection bears the burden of
10 establishing that it applies. (Heath v. F/V Zolotoi, 221 F.R.D. 545, 549
11 (W.D.Wash.2004) (Zilly, J.); see also Hernandez v. Tanninen, 604 F.3d 1095, 1102
12 (9th Cir.2010).)
13

Defendant states that the photo log was, “made at the direction of an attorney

14 in preparation for trial.” (Defendant’s Brief, at 4.) The Court therefore agrees with
15 Defendant that the photo log is work product. Further, the Plaintiff fails to argue,
16 and the Court does not find, that a “substantial need” for the documents has arisen.
17 Therefore, Plaintiff’s request to compel Request For Production of Documents No.
18 10 and 13 is denied.
19

2. Request No. 12

20

Request No. 12 asks for documents referring to earnings records for five

21 employees, from 1974 to present. (Plaintiff’s Brief, Exhibit 8, at 9.) Defendant
22 objected on the grounds that such production violates the privacy rights of the
23 employees, is irrelevant, and is grossly overbroad in time and scope. (Id.)
24

The Court agrees with Defendant that the salaries of employees other than

25 the Plaintiff are irrelevant. Generally, lost wage calculations are completed not by
26 other employee’s earnings over the last thirty years, but by considering, inter alia,
27 the injured party’s current salary, life expectancy, potential future years as an
28 employee, and expert opinion. (See, e.g., Jones & Laughlin Steel Corp. v. Pfeifer,
13-cv-00579-GPC-(PCL)

8

1 462 U.S. 523; Baltodano v. Wal-Mart Stores, Inc., 2011 WL 3859724 (2011).)
2

3. Request No. 18

3

Request No. 18 seeks documents which would be identified in Plaintiff’s

4 third interrogatory. The Court has ruled against compelling the Defendant to
5 answer that interrogatory, and therefore the issue in Request No. 18 is moot.

III. CONCLUSION

6
7

Based on the foregoing, the Court orders:

8

1. As to Plaintiff’s special interrogatories one, two, three, and four,

9 Plaintiff’s request to compel is denied.
10

2. As to Plaintiff’s request for production of documents numbers ten, twelve,

11 thirteen, and eighteen, Plaintiff’s request to compel is denied.
12
13

IT IS SO ORDERED.

14
15 DATED: January 29, 2014
16

Peter C. Lewis
United States Magistrate Judge

17
18 cc:

The Honorable Gonzalo P. Curiel
All Parties and Counsel of Record

19
20
21
22
23
24
25
26
27
28
13-cv-00579-GPC-(PCL)

9