The United States of America et al v. Safeway, Inc.
Filing
118
OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Relator Thomas Proctor's Motion to Compel Answers to Interrogatories 19 Through 25 115 is ALLOWED. Defendant Safeway is ordered to answer Interrogatories 19-25 by December 7, 2018. See written order. (LB, ilcd)
E-FILED
Wednesday, 14 November, 2018 04:17:29 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
UNITED STATES, et al. ex rel.
THOMAS PROCTOR,
Plaintiffs,
v.
SAFEWAY, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 11-cv-3406
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Relator Thomas Proctor’s
Motion to Compel Answers to Interrogatories 19 Through 25 (d/e 115)
(Motion). For the reasons set forth below, the Motion is ALLOWED.
BACKGROUND
The parties agreed to a limit of 30 interrogatories each. Joint Report
of the Parties and Proposed Scheduling and Discovery Order (d/e 74), at 2;
Scheduling Order entered February 3, 2017 (d/e 76), at 2. On May 11,
2017, Defendant Safeway, Inc. (Safeway), responded to Proctor’s First Set
of Interrogatories. Motion, Exhibit A, Defendant’s Responses to Relator’s
First Set of Interrogatories (First Set). Proctor posed Interrogatories 1
through 8 in this First Set. On October 19, 2017 Safeway responded to
Page 1 of 11
Proctor’s Second Set of Interrogatories. Motion, Exhibit B, Defendant’s
Objections and Responses to Relator’s Second Set of Interrogatories
(Second Set). Proctor posed Interrogatories 9 through 11 in this Second
Set.1 On August 31, 2018, Safeway responded to Proctor’s Third Set of
Interrogatories. Motion, Exhibit C, Defendant’s Objection and Responses
to Relator’s Third Set of Interrogatories (Third Set). Proctor posed
interrogatories 12 through 15 in the Third Set.
On September 10, 2018, Safeway responded to Proctor’s Fourth Set
of Interrogatories. Motion, Exhibit D, Defendant’s Objections and
Responses to Relator’s Fourth Set of Interrogatories (Fourth Set). Proctor
posed Interrogatories16 through 25 in the Fourth Set. Safeway responded
to Interrogatories 17-25 as follows:
OBJECTIONS: Defendant objects to this discovery request
because Relator’s total number of interrogatories, together with
their discrete subparts, exceeds the maximum allowable
number under this Court’s Feb. 23, 2017 scheduling order. See
Scheduling Order at d/e 76, ¶ 3 (“Each side shall be allowed to
propound upon the other side up to a total of 30
interrogatories”).
RESPONSE: Relator had exceeded the maximum allowable
interrogatories starting with Interrogatory No. 17. Because this
Court’s Feb. 23, 2017 scheduling order limits the number of
interrogatories propounded on each side to 30 total
1
Safeway numbered its responses to Interrogatories 10 and 11 as responses to Interrogatories 11 and
12.
Page 2 of 11
interrogatories, Relator is not entitled to a response to this
interrogatory.
Id., at 7.
The parties met and conferred regarding Safeway’s objections to
these interrogatories. Safeway asserted that Interrogatories 3, 4, 6, 10, 12,
16, and 18 had multiple discrete subparts that counted as separate
interrogatories under the Rules. Safeway stated that Proctor’s
Interrogatories 17-25 exceeded the agreed upon limit of 30 interrogatories.
After the parties completed their attempts to resolve this dispute, Safeway
agreed to count Interrogatories 3 and 4 as single interrogatories, and to
answer Interrogatories 17 and 18. The parties, however, still disagreed on
whether Safeway exceeded the limit of 30 interrogatories. See Defendant’s
Response to Relator’s Motion to Compel Responses to Interrogatories 19
Through 25 (d/e 117), at 4. Proctor brings this Motion to compel Safeway
to answer Interrogatories 19-25.
ANALYSIS
Absent an agreement of the parties or court order, a party may serve
no more than 25 written interrogatories, including all discrete subparts.
Fed. R. 33(a)(1). Proctor and Safeway agreed to 30 interrogatories, and
the Court incorporated that limit into the Scheduling Order. Safeway claims
that Interrogatories Nos. 6, 10, 12, 16, and 18 include discrete subparts
Page 3 of 11
that are counted as separate interrogatories under the rules. Safeway
claims that it has thereby answered the agreed upon number of 30
interrogatories and objects to answering any more. Proctor claims that he
has not yet asked 30 interrogatories, and therefore, Safeway must answer
Interrogatories 19-25. Proctor further argues that Safeway waived its
objection to discrete subparts in Interrogatories 6 and 10, and so, any
discrete subparts in those interrogatories should not count toward the
maximum of 30.
Safeway did not waive its objections to Interrogatories 19-25. A party
must raise objections in a timely manner or the objections are waived. Fed.
R. Civ. P. 33(b)(4). Here, Safeway objected to answering Interrogatories
19-25 because Safeway believes Proctor has already posed the maximum
allowed 30 interrogatories when discrete subparts are counted separately.
Proctor posed Interrogatories 19-25 in its Fourth Set. Safeway objected to
Interrogatories 19-25 in its timely response to the Fourth Set. Safeway did
not waive these objections.
Proctor argues that Safeway waived the objections to Interrogatories
19-25 because Safeway did not object to Interrogatories 6 and 10 on the
grounds that Interrogatories 6 and 10 had discrete subparts that counted as
separate interrogatories. Proctor cites a District Court opinion to support
Page 4 of 11
that position. Hansen v. Savage Arms Co., 2017 WL 6376342, at *7 (N.D.
Iowa Dec. 13, 2017). This Court respectfully disagrees with the Hansen
opinion. Rule 33 does not prohibit including discrete subparts in an
interrogatory. Rule 33 only sets a maximum number of 25 interrogatories,
including discrete subparts, which maximum may be changed in a case by
stipulation or court order. Fed. R. Civ. P. 33(a)(1). Thus, Safeway did not
have a basis to object to Proctor’s inclusion of discrete subparts in an
interrogatory unless Subway believed that the total number exceeded the
maximum in this case of 30.2 Safeway did not believe that the First,
Second, and Third Sets exceeded the 30-interrogatory limit, and so, did not
have a basis to object at that time.
Proctor argues that Safeway should have put him on notice of its
interpretations of Interrogatories 6 and 10 “in view of the fact that subparts
are notoriously open to interpretation.” Memorandum in Support of
Relator’s Motion to Compel Responses to Interrogatories 19 Through 25, at
4. The Court disagrees. Rule 33 does not require such notice.
Furthermore, this Court’s Scheduling Order put Proctor on notice that he
was limited to 30 interrogatories. He knew he could not exceed the limit
2
The Court does not address whether a party may object to discrete subparts that render an interrogatory
vague, ambiguous, or otherwise improper. The Court only addresses the use of discrete subparts in
calculating the limit on the number of interrogatories that a party may ask in a given case.
Page 5 of 11
and he knew discrete subparts counted separately toward the maximum of
30. Finally, the Court decides whether interrogatories contain discrete
subparts, not the parties.3 Safeway did not waive its objections to
Interrogatories 19 through 25 as exceeding the limit of 30 interrogatories.
In deciding whether an interrogatory contains discrete subparts under
Rule 33, the Court must determine whether an interrogatory seeks a single
set of information, or distinct and separate sets of information. The
analysis is fact-specific to the interrogatory and the context of the case.
Many courts determine the primary theme or primary question posed in an
interrogatory, and then analyze whether a subpart seeks details responsive
to the primary question or distinct from the primary question. See
Synopsis, Inc. v. Atoptech, Inc., 319 F.R.D. 293, 294-98 (N.D. Cal. 2016);
Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315 F.R.D. 191, 19497 (E.D. Tex. 2016) (and cases cited therein for an extended discussion of
this topic); Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 68586 (D. Nev. 1997) (discussing the primary question analysis); Advisory
Committee Notes to 1993 Amendments to Fed. R. Civ. P. 33, 146 F.R.D.
401, 675–76 (1993); 8B Charles Allen Wright, Arthur R. Miller & Richard L.
3
The Court would not have ruled on the merits of an objection to discrete subparts in Interrogatories 6
and 10 because Safeway did not claim that Proctor exceeded the maximum of 30 at that time. The Court
would have ordered Safeway to answer without reaching the merits of such premature objections. The
Court does not give advisory opinions.
Page 6 of 11
Marcus, Federal Practice and Procedure (Wright & Miller), § 2168.1, at 3940 (2010) (discussing primary theme analysis).4 Some courts also analyze
the grammar of the interrogatory to determine whether a subpart
grammatically can stand on its own as a separate and independent
question. See Kendall, 174 F.R.D. at 686. All these methods seek to
determine whether an interrogatory seeks a single set of information or
distinct and separate sets of information, “[U]ltimately the issue turns on a
case-by-case assessment of the degree to which the subpart is logically
related to the primary question in the interrogatory, as opposed to being
separate and distinct.” Erfindergemeinschaft, 315 F.R.D. at 197. The
Court examines Interrogatories 6, 10, 12, and 18 considering these
principles. The Court has carefully considered each party’s arguments that
disagree with the Court’s conclusions and finds them unpersuasive.
Interrogatory 6
6.
Identify the approximate relative prescription sales and
claims volume (as a percentage of overall total sales and
claims across all banners on an annual basis) of those
stores for which: data was stored in (a) the "compliance
databases" known as RXHR2 and RXDB, (b) in the
"McKesson Acert" database, (c) in the corporate-hosted
live PDX server, and (d) in none of the databases
identified in (a) through (c).
4
The cases also discuss interrogatories that ask for “facts, documents, and witnesses” related to an issue
in a case. Many courts treat the “facts, documents, and witnesses” request as three discrete subparts.
See Synopsis, Inc., 319 F.R.D. at 296-98. The interrogatories at issue in this case do not contain
requests for “facts, documents, and witnesses,” so this issue does not arise here.
Page 7 of 11
First Set, Answer to Interrogatory 6. The primary question of this
interrogatory asks for the approximate prescription sales and claims
volumes of stores. The subparts (a) through (d) identify where to locate the
information sought. The subparts are related to the primary question.
Interrogatory 6 is one interrogatory for purposes of the 30-interrogatory limit
in the Scheduling Order.
Interrogatory 105
11.
Identify and describe all efforts you made to set, charge,
or report different Usual & Customary or Negotiated Price
values in different pharmacy transactions involving the
same National Drug Code (“NDC”) at any given time; and,
identify the contractual, statutory, or regulatory basis for
any such efforts.
Second Set, Answer to Interrogatory 11.
The parties agree that Interrogatory 10 asks two distinct questions.
The primary question seeks information on Safeway’s efforts to set, charge,
and report certain prices. The last clause asks for the contractual,
statutory, or regulatory basis for the action. The last clause does not ask
for details or additional information about the effort or process to set prices.
5
Safeway erroneously identified Interrogatories Nos. 10 and 11 as Interrogatories Nos. 11 and 12.
Page 8 of 11
The last clause asks a separate question. Interrogatory 10 is two distinct
interrogatories for purposes of the 30-interrogatory limit.
Interrogatory 12
12.
Describe how to conclusively identify price overrides in
the PDX transaction data produced to Relator from the
RXHR2 database. If this Interrogatory cannot be
answered by reference to a discrete field identifying price
overrides, describe the methodology by which price
overrides can be identified in the RXHR2 data produced
by Safeway to Relator. If the methodology described
identifies an approximate number of overrides, rather than
a firm, conclusive number, please indicate why this is so.
Third Set, Answer to Interrogatory 12.
Interrogatory 12 is a single interrogatory. The primary question asks
how to identify price overrides conclusively in certain transactions called
“PDX” from a specific database produced in discovery called “RXHR2.”
The second sentence provides additional explanation of the information
sought. The sentence asks for either the specific field in the database that
has the information or the methodology methods to identify the price
overrides from the data base. The last sentence asks why the price
overrides cannot be conclusively identified from the data produced in
discovery, if the available methodology cannot provide conclusive
identification. The entire question seeks information necessary to
manipulate the RXHR2 database to secure relevant information about price
Page 9 of 11
overrides. The inquiries are logically related to the primary question and
are a single interrogatory for purposes of the 30-interrogatory limit.
Interrogatory 18
18.
Identify by store number, date range, and Discount Program every
time You submitted any price match prices, $4 generic program
prices, membership club or membership club price match prices, 10%
off brand prices, 20% off generic prices, or any other Discount
Program prices as Your U&C price to any GHP payers, including
State Medicaid Programs, Tricare, FEP or Medicare Part D plans.
Fourth Set, Answer to Interrogatory 18.
Interrogatory 18 asks a single interrogatory. The interrogatory asks
the primary question of the identification of every time Safeway reported a
discount price as its Usual and Customary (U&C) price to a federal
government third-party payor. All the clauses in the interrogatory seek
details related to this single question. The first set of clauses ask for details
about the store, date, and discount program; the second set of clauses ask
for details about the specific type of discount program reported as
Safeway’s U&C price; and the last set of clauses asks for details about the
specific federal government third-party payor to which Safeway reported a
discount price as its U&C price. Interrogatory 18 is a single interrogatory
for purposes of the 30-interrogatory limit.
Proctor, therefore, has propounded 26 interrogatories on Safeway,
including the two discrete subparts in Interrogatory 10. Safeway has
Page 10 of 11
answered or agreed to answer Interrogatories 1 through 18. The parties
agreed and the Court ordered a limit of 30 interrogatories. Proctor has not
reached that limit as the Court has determined only 26 interrogatories have
been propounded by Proctor. Safeway’s objections to Interrogatories 1925 as over the 30-interrogatory limit is overruled. This Court orders
Safeway to answer Interrogatories 19-25.
THEREFORE, IT IS ORDERED that Relator Thomas Proctor’s
Motion to Compel Answers to Interrogatories 19 Through 25 (d/e 115)
(Motion) is ALLOWED. This Court orders Safeway to answer
Interrogatories 19-25 by December 7, 2018.
ENTER: November 14, 2018
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE
Page 11 of 11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?