Shell v. Henderson et al

Filing 823

ORDER denying as premature 813 Plaintiff's Motion to Compel Defendant AFRA to Respond to Plaintiff's Discovery Requests; denying as moot 820 Plaintiff's Rule 26(c) Motion for Protective Order as to Defendant AFRA, by Magistrate Judge Kathleen M. Tafoya on 08/30/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya

Civil Action No. 09–cv–00309-MSK-KMT
SUZANNE SHELL,
Plaintiff,
v.
AMERICAN FAMILY RIGHTS ASSOCIATION,
LEONARD HENDERSON,
FAMILIES AT RISK DEFENSE ALLIANCE,
FRANCINE RENEE CYGAN,
MARK CYGAN,
ILLINOIS FAMILY ADVOCACY COALITION,
GEORGIA FAMILY RIGHTS, INC.,
NATIONAL ASSOCIATION OF FAMILY ADVOCATES,
CONNECTICUT DCF WATCH,
BRENDA SWALLOW,
RANDALL BLAIR, and
UNKNOWN DEFENDANTS DOE 1-15,
Defendants.

ORDER

This matter is before the court on “Plaintiff’s Motion to Compel Defendant AFRA to
Respond to Plaintiff’s Discovery Requests” (“Mot.Compel”) filed August 28, 2012 [Doc. No.
813] and “Plaintiff’s Rule 26(c) Motion for Protective Order as to Defendant AFRA”
(“Mot.P.O.”) filed August 29, 2012 [Doc. No. 820]. Neither the Motion to Compel nor the
Motion for Protective Order are timely filed since they seek protection from something that has

not yet occurred. However, having reviewed the Plaintiff’s motions it appears that some
direction from the court would be helpful in framing potential discovery issues and in keeping
discovery in this case from once again bogging down in a mire of disputation.
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.” See Fed. R. Civ.
P. 33, Advisory Committee Note. Identifying a “discrete subpart” is often one of the more
difficult tasks presented to a court. While a draconian approach would be to view each
participial phrase as a subpart, see Valdez v. Ford Motor Co., 134 F.R.D. 296 (D. Nev.1991), 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. See e.g. Bottoms v. Liberty Life Assur. Co. of
Boston, Case No. 11-cv-01606-PAB-CBS, 2011 WL 6181423, *6 (D. Colo. Dec. 13,2011);
Kendall v. GES Exposition Services, 174 F.R.D. 684 (D. Nev.1997). But, as another court has
stated, this is anything but a bright-line test. Safeco of America v. Rawstron, 181 F.R.D. 441,
445 (C.D. Cal. 1998). As one court posited by way of example
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
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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.
Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004).
A.

“Plaintiff’s Motion to Compel Defendant AFRA to Respond to Plaintiff’s
Discovery Requests” [Doc. No. 813]

The court has reviewed the discovery requests submitted to AFRA from Plaintiff with
respect to the Motion to Compel and makes the following findings with respect to Fed. R. Civ. P.
33(a)(1) which directs that subparts of questions will be treated as separate interrogatories and I
conclude the following:
Pl. Interrogatory No. 4. DESCRIBE all WEB SITES created, moderated, owned and/or
operated by AFRA between the creation of AFRA and February 13, 2009, identifying
each site by name and URL, providing a descriptive chronology for each site detailing
the date it was created, who created it, who owned it, the purpose of the web site,
describing whether it was publicly accessible or private and why, describing any
membership prerequisites and requirements, how members were solicited, what
demographic population(s) the member or participants consisted of, the membership
numbers, describe the rules of the group and where those rules were published, who
enforced the rules, describe the published or unpublished procedures for member
messages where the content contained potential or real wrongful content including
threats, defamation, advertising, pandering, solicitation of any kind, fraud, abuse or
violation of the group rules, and the date(s) and circumstance(s) where
authority/ownership in the group changed, the date and reason the web site was
terminated and who terminated it and any intervening variations of the aforementioned
information.
The court finds that the first topic is “all web sites created moderated, owned and or
operated by AFRA” during the requested time period. Included in that one interrogatory are
questions concerning name, URL, date of creation, ownership, moderator, public or private
accessibility, whether ownership or authority over the website changed during the relevant

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period, whether the website is ongoing or cancelled, and if cancelled, when the cancellation
occurred. A second topic is “the purpose of each identified website” including why it was either
public or private, the demographic population to which the website was targeted, membership
demographic, methods of soliciting members, numbers of members and prerequisites for
membership in each of the web sites. The court finds these two interrogatories are generally
directed to the make-up or composition of AFRA and therefore count only as two interrogatories
related generally to AFRA directives and whether AFRA should be considered an entity. As to
any other questions about the rules, mandates or requirements concerning any individual web
site, however, Plaintiff would have to interpose questions as to each specific website identified
and each question with related subparts would be counted separately. Therefore, Interrogatory
No. 4 will be counted as two interrogatories and questions concerning rules or regulations on use
of the website, including rules regarding sanctions for abuse, will be stricken with permission to
again propound one or more interrogatories (so long as the interrogatories remain within the
allowed number) with respect to any particular web site at the discretion of the Plaintiff.
Pl. Interrogatory No. 5. For your [sic] each of your responses to Interrogatory no. 4,
please IDENTIFY all individuals to whom AFRA granted authority to moderate, to add
or remove members and/or content or to otherwise administer each web site,
DESCRIBING what authority each person was granted (what actions did they have the
power to perform pertaining to the web site), the dates they had said authority, the web
sites for which they were authorized to exercise said authority, the reason AFRA granted
each person said authority, and the reason said authority was terminated (if applicable).
The court deems this to be one interrogatory as all the subparts are related to the topic of
“authority to administer a particular website,” however, the interrogatory must be directed
separately to each of the web sites which are identified (or whatever portion of the web sites
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about which Plaintiff seeks further information). Therefore, the court will strike this
interrogatory with permission to again propound interrogatories directed to any particular web
site at the discretion of the Plaintiff. The stricken interrogatory will not count against Plaintiff’s
numerical limits on discovery.
Pl. Interrogatory No. 6. DESCRIBE all instances where AFRA was contacted by anyone
alleging that infringed copyrighted content was published on any WEB SITE described in
Interrogatory no. 4, including who published the infringing content, any
communication(s) to anyone else discussing said infringement, identifying the method(s)
of the communication, the communication audience and the basis of any statement(s) you
made or position you took on the subject.
The court deems topic number one in this interrogatory to be “contact with AFRA
concerning copyright infringement on any of its web sites.” This would include the details of
any alleged infringement reported to AFRA including who allegedly published the copyrighted
content, how contact with AFRA was made by the reporter and to whom the copyrighted content
was allegedly published. The second topic contained in this interrogatory is “AFRA’s response
to and position on the contact about alleged copyright infringement” which would include with
whom AFRA shared the infringement allegation as well all positions AFRA took, publically or
privately. Interrogatory No. 6 will therefore count as two interrogatories.
Pl. Interrogatory No. 7. DESCRIBE all instances of communication on any AFRA web
site described in Interrogatory no. 4, where the subject of that communication was any
criminal or illegal act allegedly performed by the plaintiff, including identifying the
author of the communication, the method of the communication, the communication
audience and any official or unofficial act taken by AFRA in response to each identified
communication.
The court deems this to be one interrogatory with the topic “accusations of illegal
conduct engaged in by Plaintiff which were conveyed to AFRA through any of its web sites.”
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The topic is communications to AFRA and is not a question specific to any one web site. The
web sites are only a method of communication in the context of this question and its related
subparts. Therefore this will count as one interrogatory.
Pl Interrogatory No. 8. DESCRIBE all instances of communication that occurred on any
AFRA WEB SITE described in Interrogatory no. 4, where the subject of the
communication was any reference or inference to any report having been made about the
plaintiff to any criminal, administrative or regulatory government agency, including
identifying the author of the communication, the method of the communication, the
communication audience and any official or unofficial act taken by AFRA in response to
each identified communication.
The court deems this to be one interrogatory with the topic “communications to AFRA
through any of its web sites concerning reports made against Plaintiff” to any of the listed
agencies. Again, the interrogatory concerns communications to AFRA – through which of its
web sites the communication was transmitted is only the means of conveying the
communication. Therefore, this will count as one interrogatory.
Pl. Interrogatory No. 9. DESCRIBE all instances of communication that occurred on any
AFRA WEB SITE described in Interrogatory no. 4, where the subject of that
communication was the mental health or mental or emotional state of the plaintiff,
including identifying the author of the communication, the method of the communication,
the communication audience and any official or unofficial act taken by AFRA in
response to each identified communication.
The court deems this to be one interrogatory for the same reasons as expressed in
response to Interrogatories 7 and 8.
Pl. Interrogatory No. 12. DESCRIBE in detail the procedures AFRA created and
implemented to prevent copyright infringement from being committed on AFRA WEB
SITES described in Interrogatory no. 4.

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The court deems this to be one interrogatory which may be responded to on behalf of all
AFRA web sites since it is asking for a general AFRA policy or rule applicable in a general
sense to all web sites. Therefore, it will be counted as one interrogatory.
Finally, as to the Requests for Production of Documents, those requests will be counted
the same way as the interrogatories to which the requests relate for purposes of counting toward
discovery limitations.
B.

“Plaintiff’s Rule 26(c) Motion for Protective Order as to Defendant AFRA”
[Doc. No. 820]

The court has reviewed the discovery requests submitted to Plaintiff from AFRA with
respect to Doc. No. 820 and makes the following findings with respect to Fed. R. Civ. P. 33(a)(1)
which directs that subparts of questions will be treated as separate interrogatories and I conclude
as follows.
Deft. AFRA Interrogatory No. 11. For each seminar listed in your response to
Interrogatory No. 3, please detail:
a. The number of attendees
b. The sponsoring person or organization(s)
c. The amount of money spent by YOU OR ANYONE ACTING ON YOUR
BEHALF on the seminar, including (but not limited to) travel, lodging, materials,
and promotion
d. The amount of money YOU OR ANYONE ACTING ON YOUR BEHALF
received in conjunction with the seminar, and from whom that money was
received
The court deems this to be one interrogatory as all the subparts are related to the topic of
“composition of seminars conducted by Plaintiff, including their net profitability.” However, the
interrogatory must be directed separately to each of the seminars which were identified by the
Plaintiff (or whatever portion of the seminars about which Defendant AFRA seeks further
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information). Therefore, the court will either strike this interrogatory with permission to again
interpose interrogatories directed to any particular seminar at the discretion of the Plaintiff or
will consider this to constitute twenty-five1 interrogatories. If the plaintiff elects to have the
interrogatory stricken, the stricken interrogatory will not count against Defendant AFRA’s
numerical limits on discovery. The Defendant AFRA will notify Plaintiff of its election within
five days of this Order.
Deft. AFRA Interrogatory No. 12. Please IDENTIFY all DOCUMENTS which you
believe were impermissively [sic] copied by AFRA, including evidence of your copyright
for each DOCUMENT.
The court deems this to be one interrogatory directed at the identity of specific
documents as to which Plaintiff is claiming copyright infringement. Therefore, it will be
counted as one interrogatory.
13. Please IDENTIFY all DOCUMENTS evidencing that AFRA had possession of or
published your trade secrets, or any portion thereof.
The court deems this to be two interrogatories. Topic number one is “AFRA’s
possession of Plaintiff’s trade secrets” and specifically in this case, the interrogatory requests
identification of documents which are evidence supporting that AFRA actually possessed
Plaintiff’s trade secrets. Topic number two is “AFRA’s publication of Plaintiff’s trade secrets,”

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Plaintiff represented in the Mot.P.O. that she had identified twenty-five seminars. If
that number is incorrect, the parties should consider the number of interrogatories contained in
this request to be the actual number of separate seminars actually identified by the plaintiff in her
responses to Interrogatory No. 3.
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requesting identification of documents which are evidence supporting the contention that AFRA
published Plaintiff’s trade secrets.
As to the Request for Production of Documents, that request will be counted the same
way as the interrogatories to which the request relates for purposes of counting toward discovery
limitations. Therefore, as to interrogatories number 12 and 13, there are three requests for
production of documents. The request as to interrogatory number 11 will be counted in
accordance with Defendant AFRA’s election.
Therefore, it is ORDERED
“Plaintiff’s Motion to Compel Defendant AFRA to Respond to Plaintiff’s Discovery
Requests” [Doc. No. 813] is DENIED as premature; and
“Plaintiff’s Rule 26(c) Motion for Protective Order as to Defendant AFRA” [Doc. No.
820] is DENIED as moot.
It is further ORDERED
Each party will respond to the propounded discovery, as limited and more precisely
defined in this order, in accordance with the deadlines in place had the two motions which are
the subject of this order not been filed. Pursuant to Fed. R. Civ. P. 33(b)(2), each party’s
responses shall be due no later than 30 days after the party was served with the original
discovery requests.

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As to any newly revised requests submitted pursuant to this order, the responses shall be due
within 30 days of the date those newly revised interrogatories are served.

Dated this 30th day of August, 2012.

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