Carbajal v. Warner et al

Filing 712

ORDER by Magistrate Judge Kristen L. Mix on 7/21/15. Motion for Protective Order # 663 is GRANTED in part and DENIED in part. Discovery due by 8/4/2015. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
CAROL WARNER, in her individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
JOEL SMITH, in his individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
DARIN DESEL, Police Officer for the Denver Police Department, in his individual
capacity,
FRED MCKEE, Sheriff for the Delta Sheriff’s Department, in his individual capacity,
PERRY SPEELMAN, Police Officer for the Denver Police Department, in his individual
capacity, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Denver Defendants’ Motion for Protective
Order [#663]1 (the “Motion”). Plaintiff filed a Response [#684] in opposition to the Motion,
1

“[#663]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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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,
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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.2 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
2

The Denver Defendants assert that the objections in the Motion relate only to the multipart nature of Plaintiff’s requests, and that they reserve their right to assert other objections to the
extent this Motion is denied. Motion [#663] at 4 n.5.

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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-RPMMEH, 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
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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 present, and contents be stated separately for
each such communication.” Committee Notes, 146 F.R.D. 401, 675-76 (1993).
With the preceding principles in mind, the Court rules as follows regarding the
requests for production:3
(1) Request for Production No. 2 will not be subdivided solely on the basis that it
involves four incidents, and the request is therefore properly construed as one request.
(2) Request for Production No. 3 will not be subdivided solely on the basis that it
involves four incidents, and the request is therefore properly construed as one request.
(3) Request for Production No. 4 will not be subdivided solely on the basis that it
3

The full text of each request for production and each interrogatory may be found at Docket
No. 664-1. The Denver Defendants do not argue that Request for Production No. 1 has multiple
subparts.

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involves four incidents, and the request is therefore properly construed as one request.
(4) Request for Production No. 5 will not be subdivided solely on the basis that it
involves four incidents and requires production from more than one agency, and the
request is therefore properly construed as one request.
(5) Request for Production No. 6 will not be subdivided solely on the basis that it
requires production from more than one agency, and the request is therefore properly
construed as one request.
(6) Request for Production No. 7 will not be subdivided solely on the basis that it
requires production from more than one agency, and the request is therefore properly
construed as one request.
(7) Request for Production No. 8(a) will not be subdivided solely on the basis that
it requires production from more than one agency, and the request is therefore properly
construed as one request.
(8) Request for Production No. 8(b) will not be subdivided solely on the basis that
it involves four incidents and requires production from more than one agency, and the
request is therefore properly construed as one request.
(9) Request for Production No. 9 will not be subdivided solely on the basis that it
involves four incidents and requires production from more than one agency, and the
request is therefore properly construed as one request.
(10) Request for Production No. 10 will not be subdivided solely on the basis that
it requires production from more than one agency, and the request is therefore properly
construed as one request.
(11) Request for Production No. 11, requesting “[a]ny and all statements recorded
or written in any manner by any party relating to the allegations contained in the Complaint
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and Answer,” is so broad that it contains an indeterminate number of requests, and the
Court therefore grants the Motion seeking a protective order with respect to Request for
Production No. 11. See Bat v. A.G. Edwards & Sons, Inc., No. 04-cv-02225-REB-BNB,
2005 WL 6776838, at *11 (D. Colo. Nov. 18, 2005) (striking requests seeking “all possible
information” concerning the plaintiff and stating that “[t]he indiscriminate use of blockbuster
production requests, such as these, calling for all possible information impose undue
burden, cost, and delay, and are objectionable”).
(12) Request for Production No. 12 will not be subdivided solely on the basis that
it involves four incidents, and the request is therefore properly construed as one request.
(13) Request for Production No. 13 will not be subdivided solely on the basis that
it requires production from more than one agency, and the request is therefore properly
construed as one request.
(14) Request for Production No. 14 will not be subdivided solely on the basis that
it requires production from more than one agency, and the request is therefore properly
construed as one request.
(15) Request for Production No. 15 will not be subdivided solely on the basis that
it requires production from more than one agency, and the request is therefore properly
construed as one request.
(16) Request for Production No. 16 will not be subdivided solely on the basis that
it requires production from more than one agency, and the request is therefore properly
construed as one request.
(17) Request for Production No. 17 will not be subdivided solely on the basis that
it requires production from more than one agency, but the Court agrees with the Denver
Defendants that Plaintiff seeks production in connection with four distinct categories of
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documents here (i.e., documents described in Request for Production Nos. 13, 14, 15, and
16), and the request is therefore properly construed as four requests.
(18) Request for Production No. 18 contains five distinct subparts. As the Denver
Defendants state, “it seeks judgment[s] paid for five different types of claims: (i)
unreasonable searches and seizures; (ii) alleged false arrests; (iii) alleged malicious
prosecutions; (iv) alleged unreasonable and/or excessive force; and (v) alleged retaliation.”
Motion [#663] at 11; see Kline v. Berry, 287 F.R.D. 75, 79 (D.D.C. 2012). The request is
therefore properly construed as five requests.
As noted above, Plaintiff is permitted a total of 30 requests for production with
respect to the Denver Defendants. He used 6 requests for production in his First Set of
Written Discovery. Motion [#663] at 2 n.2. The Court finds that the foregoing consists of
an additional 24 requests for production to which the Denver Defendants must respond.
Therefore, the Denver Defendants need not respond to Request for Production No. 11 (on
the basis provided above) or Nos. 18(v) and 19 (on the basis that they exceed the limit of
permitted requests for production). See Kendall, 174 F.R.D. at 687.
Turning to the interrogatories, the Court rules as follows:
(1) Interrogatory No. 1 will not be subdivided solely on the basis that it involves four
incidents, and the interrogatory is therefore properly construed as one interrogatory.
(2) Interrogatory No. 2 will not be subdivided solely on the basis that it involves four
incidents, and the interrogatory is therefore properly construed as one interrogatory.
(3) Interrogatory No. 3 will not be subdivided solely on the basis that it involves four
incidents, and the interrogatory is therefore properly construed as one interrogatory.
(4) Interrogatory No. 4 will not be subdivided solely on the basis that it involves four
incidents, and the interrogatory is therefore properly construed as one interrogatory.
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(5) Interrogatory No. 5 will not be subdivided solely on the basis that it involves four
incidents, and the interrogatory is therefore properly construed as one interrogatory.
(6) Interrogatory No. 6 will not be subdivided solely on the basis that it involves four
incidents, and the interrogatory is therefore properly construed as one interrogatory.
(7) Interrogatory No. 84 will not be subdivided solely on the basis that it involves four
incidents, but the Court agrees with the Denver Defendants that Plaintiff’s interrogatory has
two distinct subparts relating to (1) Defendants and (2) witnesses, and the interrogatory is
therefore properly construed as two interrogatories.
(8) Interrogatory No. 105 will not be subdivided solely on the basis that it involves
four incidents, and the interrogatory is therefore properly construed as one interrogatory.
(9) Interrogatory No. 11 will not be subdivided solely on the basis that it involves four
incidents, and the interrogatory is therefore properly construed as one interrogatory.
(10) Interrogatory No. 13 will not be subdivided solely on the basis that it requires
production from more than one agency, but the Court otherwise agrees with the Denver
Defendants that it contains six distinct subparts: (a) seeks the identity of the person or
persons responsible for (i) promulgating and (ii) enforcing official policies and regulations
regarding (iii) the use of force and (iv) searches and seizures (i.e., four parts); (b) seeks a
description of the procedures for reviewing and approving these policies by members of the
agencies (i.e., one part), and (c) seeks a description of the procedure for review and
approval of these policies or regulations by any person or persons within the government
of the City and County of Denver, who are not officers or employees of the Denver Police
Department and Denver Sheriff’s Department (i.e., one part). The interrogatory is therefore
4

Plaintiff’s Interrogatories do not include a “No. 7.” See [#664-1] at 7.

5

Plaintiff’s Interrogatories do not include a “No. 9.” See [#664-1] at 7.

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properly construed as six interrogatories.
(11) Interrogatory No. 14 will not be subdivided solely on the basis that it requires
production from more than one agency. The Court further finds that the various subparts
here all have a common theme, i.e., the outside review process regarding the potential
misuse of power by law enforcement officers. See, e.g., Committee Notes, 146 F.R.D. at
675-76. This interrogatory is therefore properly construed as one interrogatory.
(12) Interrogatory No. 15 contains five subparts that all involve a common theme,
despite the Denver Defendants argument to the contrary. See Motion [#663] at 21 (“(i) the
number of lawsuits; (ii) the names of the officers involved; (iii) whether a weapon was used
and what type; (iv) whether an investigation of the incident was performed, and; (v) the
district and precinct where the subject incident took place”). However, the Court agrees
that the portion of the interrogatory pertaining to three different types of lawsuits are
distinct. See Kline, 287 F.R.D. at 79. Accordingly, the interrogatory is properly construed
as three interrogatories.
(13) Interrogatory No. 16 will not be subdivided solely on the basis that it requires
production from more than one agency, but otherwise, there are two discrete subparts
here, the first regarding the use of force, and the second regarding search and seizure.
See Kline, 287 F.R.D. at 79. Each of the other subparts are not discrete and are logical
extensions of the two discrete subparts.

Accordingly, the interrogatory is properly

construed as two interrogatories.
As noted above, Plaintiff is permitted a total of 30 interrogatories with respect to the
Denver Defendants. He used 8 interrogatories in his First Set of Written Discovery. Motion
[#663] at 2 n.3.

The Court finds that the foregoing consists of an additional 22
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interrogatories to which the Denver Defendants must respond. Therefore, the Denver
Defendants need not respond to Interrogatory Nos. 17-21 (on the basis that they exceed
the limit of permitted interrogatories). See Kendall, 174 F.R.D. at 687.
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#663] is GRANTED in part and
DENIED in part, as outlined above.
IT IS FURTHER ORDERED that the Denver Defendants shall respond to Plaintiff’s
Second Set of Written Discovery on or before August 4, 2015. The discovery deadline
is extended to that date for the sole purpose of complying with this Order.
IT IS FURTHER ORDERED sua sponte that the deadline for Plaintiff to file
Responses to the State Defendants’ Motion for Summary Judgment [#694], Defendant
Watts’ Motion for Summary Judgment [#697], and the Denver Defendants’ Motion for
Summary Judgment [#700] is extended to August 25, 2015.

Dated: July 21, 2015

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