The Shaw Group Inc et al v. Zurich American Insurance Company et al

Filing 285

RULING AND ORDER granting in part and denying in part 259 Motion to Compel Responses to Interrogatories; granting in part and denying in part 280 MOTION for Leave to to Serve Excess Requests for Admission and Excess Interrogatory. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 05/05/2014. (CGP) Modified on 5/5/2014 to edit text (CGP).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

THE SHAW GROUP, INC., et al.

CIVIL ACTION

VERSUS

NO. 12-257-JJB-RLB

ZURICH AMERICAN INSURANCE
COMPANY, et al.

RULING AND ORDER
Before the Court is defendant Zurich American Insurance Company’s (“Zurich”) Motion
to Compel Responses to Interrogatories. (R. Doc. 259). This Motion is opposed by plaintiffs
The Shaw Group, Inc. and Shaw Process Fabricators, Inc. (collectively, “Shaw”). (R. Doc. 271).
Zurich has filed a Reply. (R. Doc. 279).
Also before the Court is Zurich’s Motion for Leave to Serve Excess Requests for
Admission and Excess Interrogatory. (R. Doc. 280). The motion is opposed by Shaw. (R. Doc.
281).
I.

Background
This is an insurance dispute. In the underlying action, REC Solar Grade Silicon, LLC

(“REC”) sued Shaw for damages regarding defective pipe spools sold by Shaw to REC for use in
a gas manufacturing plant. Shaw filed an action in the Eastern District of Washington in July of
2011 seeking a declaratory judgment providing that, among other things, Zurich American
Insurance Company (“Zurich”), Shaw’s primary insurer, breached its duty to defend Shaw in the
underlying litigation and did so in bad faith.

According to the Second Amended Complaint, after Shaw tendered Zurich with the
complaint in the underlying action, Zurich responded that “there was no insurance coverage” for
the damages in the Underlying Litigation, but also provided that “it would accept and undertake
the defense of the Underlying Litigation under a full reservation of rights.” (R. Doc. 156,
“SAC,” ¶ 15). Shaw alleges that since undertaking its duty to defend, Zurich has “disputed the
extent to which it was obligated to pay for defense costs” and has “unreasonably breached its
duty to defend by failing to pay for the defense in a timely manner.” (SAC, ¶ 16). Shaw alleges
that Zurich “controlled the defense of Plaintiffs in the Underlying Litigation in the Eastern
District of Washington,” but breached its duty to exercise the degree of reasonable care
applicable to the defense, which proximately caused it harm. (SAC, ¶ 23). Shaw also alleges
that Zurich violated its “duties to engage in good faith settlement negotiations of the Underlying
Litigation by refusing indemnity to Plaintiffs herein prior to the July mediation between the
Plaintiffs and REC.” (SAC, ¶ 23). This court has ruled that Shaw’s extra-contractual claims
against Zurich shall be governed under Washington law. (R. Doc. 132 at 11).
Discovery in this action has been extended multiple times in light of various discovery
disputes between the parties. The current deadline for filing all discovery motions and
completing fact discovery is February 28, 2014. (R. Doc. 236 at 4). The parties have submitted
a joint request to extend fact discovery to May 15, 2014, because of “weather, witness
availability, and the need to continue depositions due to pending discovery motions before the
Court that will impact their scope.” (R. Doc. 260-1 at 3). On April 11, 2014, the court held a
telephone status conference and provided that after rulings were issued on the pending discovery
motions, new discovery deadlines would be set accordingly. (R. Doc. 277).

2

On March 12, 2014, Zurich filed the instant motion to compel responses to its
interrogatories. (R. Doc. 259). Zurich served its Initial Interrogatories on Shaw on December 6,
2013 and its Supplemental Interrogatories on January 2, 2014. Zurich argues that Shaw’s
responses to its initial and supplemental interrogatories are “evasive, incomplete, and
unresponsive.” (R. Doc. 259-1 at 1). More specifically, Zurich argues that Shaw has not
provided sufficient responses to Interrogatories Nos. 4 and 5, and Supplemental Interrogatories
Nos. 2, 3, 4, and 7. Zurich also argues that the court implicitly granted Zurich leave to propound
upon Shaw more than 25 interrogatories by extending the deadline for Shaw to respond to those
interrogatories. (R. Doc. 277). (R. Doc. 259-1 at 12). Shaw counters that its responses are
sufficient and do not rely upon its objection that the interrogatories request legal conclusions.
Shaw also asserts that it properly refused to answer interrogatories in excess of those allowed by
Rule 33 in the absence of leave of court.
On April 15, 2014, Zurich filed its motion to exceed the 25 allowed requests for
admission allowed under L.R. 36.2. (R. Doc. 280). The motion was filed four days after the
court stated it would extend the discovery deadlines after resolving already pending motions. (R.
Doc. 277). Zurich requests leave to serve an additional 35 requests for admissions, as well as an
additional interrogatory related to those requests for admissions. (R. Doc. 280-1). Zurich has
already served 18 requests for admissions and has reached its limit of available interrogatories.
Zurich has not yet served this additional discovery on Shaw. Shaw opposes the motion on the
grounds that Zurich has failed to establish good cause to serve excess requests for admissions
because the majority of proposed discovery seeks either impermissible legal conclusions or
attempts to establish immaterial facts. (R. Doc. 281 at 2-9). Furthermore, Shaw opposes the
additional interrogatory on the ground that it actually amounts to thirty-five additional

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interrogatories because it relates to each of the thirty-five additional requests for admissions, and
Zurich has made no particularized showing of why this additional discovery is warranted.
II.

LAW AND ANALYSIS
A.

Sufficiency of Shaw’s Interrogatory Responses

Zurich claims that Shaw has not provided sufficient responses to Interrogatories Nos. 4
and 5, and Supplemental Interrogatories Nos. 2, 3, 4, and 7. Zurich argues that Shaw’s answers
are “evasive or incomplete” disclosures that “must be treated as a failure to disclose, answer, or
respond” to discovery under Rule 37 of the Federal Rules of Civil Procedure. Zurich argues that
Shaw’s answers are insufficient because they do not specifically identify how Shaw was
allegedly harmed by Zurich’s actions. (R. Doc. 259-1 at 8). Zurich also argues that Shaw
improperly objected, and refused to respond, on the basis that Zurich’s interrogatories sought
legal conclusions.
The interrogatories and answers at issue in Zurich’s motion to compel are as follows:
Interrogatory No. 4:
Please identify each and every act or omission you claim Zurich committed or
omitted which prejudiced you or caused you damage, and the basis for any and all claims
for damages and/or penalties identified in your Complaint (including all amendments
thereto).
Answer:
Shaw objects to this Interrogatory as vague, ambiguous, overly broad and unduly
burdensome. Shaw further objects to this Interrogatory as seeking a legal conclusion, and
as improper under the Federal Rules of Civil Procedure. Subject to these objections and
its General Objections, Shaw answers as follows:
While it is impossible for Shaw to identify each and every act or omission Zurich
committed or omitted that prejudiced Shaw or caused it damage at this time since
discovery is continuing, Shaw offers the following as a non-exhaustive description of
Zurich’s conduct that Shaw is aware of that supports Shaw’s claims and damages sought
in the Second Amended Complaint.

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After Zurich received a copy of the complaint in REC Solar Grade Silicon LLC v.
The Shaw Group, Inc., et al, No. 2:09-CV-188-LRS (the “Underlying Lawsuit”) in June
2009, Zurich breached its duty to defend to [sic] Shaw by failing to retain defense
counsel, by failing to pay defense costs, and by failing to agree to defend Shaw until
approximately 15 months later on September 9, 2010. As a result of this breach of the
duty to defend, Shaw had to retain counsel and pay its own defense costs and was
uncertain whether Zurich would defend its insured against a lawsuit that exposed Shaw to
tens of millions of dollars in damages. During this time, Shaw and its counsel asked
Zurich and its third-party administrator on several occasions whether Zurich was
accepting the defense. Zurich and its third-party administrator FARA failed to
adequately respond to Shaw’s inquiries. After Zurich finally accepted the defense in
September 2010, Zurich and its third-party administrator FARA failed to timely pay
defense costs, which constituted further breaches of the duty to defend. As a result of
Zurich’s failure to timely pay defense counsel, Shaw’s main defense counsel at the time,
Griffith Nixon Davidson, PC, complained about the late payments and threatened to
withdraw as counsel in the Underlying Lawsuit. Because of Shaw’s uncertainty in the
defense to a damage claim made by REC that by July 2011 had ballooned to over $100
million, Shaw hired another firm, Baker Donelson, to take over as lead counsel. Shaw
then had to pay Baker Donelson with its own funds for a period of time until Zurich
eventually agreed the retention of Baker Donelson was appropriate and agreed to pay
those defense costs. In addition, Shaw lost the time value of the money that Shaw was
forced to pay to Baker Donelson and Zurich eventually reimbursed.
In addition, Zurich also breached its duties to Shaw by failing to thoroughly or
timely investigate the claim for insurance benefits arising out of the Underlying Lawsuit
(the “REC Claim”). After receiving the REC Claim in June 2009, neither Zurich nor its
third-party administrator FARA performed a timely or thorough investigation. Moreover,
despite determining at some point that coverage existed for the REC Claim and that Shaw
would be found liable, Zurich then never attempted to negotiate a settlement with the
plaintiff, offer the limits of Zurich’s policy to Shaw, or otherwise offer settlement
authority to Shaw. Instead, Zurich continued to act in furtherance of its own financial
interest instead of those of the insured, Shaw. Because Zurich would not acknowledge to
Shaw that coverage existed for the REC Claim, Shaw’s excess carriers failed to
acknowledge that it owed any duty to Shaw (since the limits of Zurich’s policy had not
been exhausted) and offer settlement authority within the limits of those excess insurance
policies. As a result, Shaw was forced to settle the Underlying lawsuit on its own in
October 2011 for $24.5 million. Only after Shaw settled the Underlying Lawsuit with its
own funds did Zurich acknowledge there was coverage under the Zurich policy and
tender its policy limits for two occurrences in the amount of $4 million. But for Zurich’s
failures to properly investigate and settle the REC Claim, Shaw could have settled the
Underlying Lawsuit for a sum less than $10 million between the period of the fall of 2009
through late spring of 2011 in response to a demand made by plaintiff. Because Zurich
breached these duties, the settlement value of the Underlying Lawsuit substantially
increased, thereby exposing Shaw to even larger substantial damages. Shaw also lost the
time value of funds it used to pay to defense bills and to settle the Underlying Lawsuit.

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Zurich committed other violations of Washington law in its handling of the REC
Claim. Zurich failed to acknowledge its receipt of the notice of claim within 10 days of
being notified in June, 2009. After receiving notice of the claim, Zurich failed to
promptly provide necessary claim forms, instructions, and policy conditions and any
other requirements. Zurich failed to adopt or implement reasonable standards for the
prompt investigation of claims. To the extent Zurich’s Claims Best Practices for
Construction & Defect Claims applied to the handing of the REC Claim, Zurich failed to
follow the standards set forth in that documents. Zurich failed to complete notification of
the claim. Zurich misrepresented pertinent facts and insurance policy provisions to Shaw
in the September 2010 letter it sent to Shaw that reserved its rights and through
communications to Shaw after Zurich performed its investigation of the REC Claim in
July 2001. Zurich also failed to inform Shaw that Zurich had determined coverage under
Shaw’s excess policies would be jeopardized if Shaw accepted $2 million from Zurich as
the limits of the Zurich policy. Shaw also refers Zurich to the pleadings, deposition
testimony, documents, Shaw’s expert reports, and other information produced by the
parties and third parties in this case as further evidence supporting Shaw’s claims and
damages asserted against Zurich in the Second Amended Complaint.
Discovery is continuing in this matter and Shaw reserves its right to further
supplement its answer to this interrogatory as necessary.
Interrogatory No. 5:
Please state the total amount of damages you allegedly suffered and the total
amount of penalties to which you claim entitlement as a result of Zurich’s alleged bad
faith/improper handling of your claim arising out of the REC suit. For each category
(damages and penalties), break down the total value according to each alleged act or
omission by Zurich which you claim caused you damage and each alleged act or
omission that triggered penalties under Washington or Louisiana and the amount of said
penalties.
Answer:
Shaw objects to this Interrogatory as overly broad, and unduly burdensome.
Shaw further objects to this claim as seeking a legal conclusion, and as improper under
the Federal Rules of Civil Procedure. Subject to these objections and its General
Objections, Shaw answers as follows:
Zurich is liable for the entire amount of the $24.5 million settlement of the
Underlying Lawsuit ($20,750,000 in cash, plus the $3,804,520.50 counterclaim that Shaw
Process Fabricators, Inc. released), plus treble damages under Washington bad faith law
for a total amount of $73.6 million, plus prejudgment interest and attorneys’ fees in an
amount to be determined at trial.

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Supplemental Interrogatory No. 2:
Please identify the harm that you contend was suffered as a proximate cause of
Zurich’s allegedly late payment of defense counsel, and explain the causal connection
between the alleged harm and the time of payment.
Answer:
Shaw objects to this Interrogatory as seeking a legal conclusion, and as improper
under the Federal Rules of Civil Procedure. Subject to these objections and its General
Objections, Shaw answers that Washington law presumes Shaw was harmed from
Zurich’s bad faith actions. Shaw also refers Zurich to Shaw’s answer to Interrogatory 4
from Zurich’s Interrogatories to Shaw dated December 6, 2013.
Supplemental Interrogatory No. 3:
Please identify each act or omission of Zurich during the adjustment of the
underlying claim that you contend violated Washington state law, and for each act or
omission, specify the harm or damage that you allegedly suffered as a result.
Answer:
Shaw objects to this Interrogatory as overly broad, unduly burdensome, and vague
and ambiguous. Shaw further objects to this Interrogatory as seeking a legal conclusion,
and as improper under the Federal Rules of Civil Procedure. Subject to these objections
and its General Objections, Shaw answers that Washington law presumes Shaw was
harmed from Zurich’s bad faith actions. Shaw also refers Zurich to Shaw’s answer to
Interrogatory 4 from Zurich’s Interrogatories to Shaw dated December 6, 2013 and to the
Second Amended Complaint.
Supplemental Interrogatory No. 4:
Please identify every fact that you allege Zurich failed to discover but would have
[been] discovered if it had investigated the claim properly, and as to each fact, explain
how you were damaged 1 by Zurich’s alleged failure to discover it.

1

Although Zurich uses the word “damaged” in this Interrogatory, the context of the sentence clearly
requests Shaw to identify the extent it was injured or harmed. In response to this Interrogatory, Shaw
interprets the word “damaged” in the same manner, as it discusses the rebuttable presumption of harm,
not the damages sought as identified in response to Interrogatory No. 5.

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Answer:
Shaw objects to this Interrogatory as overly broad, unduly burdensome, and vague
and ambiguous. Subject to these objections and its General Objections, Shaw answers
that Washington law presumes Shaw was harmed from Zurich’s bad faith actions. Shaw
also refers Zurich to Shaw’s answer to Interrogatory 4 from Zurich’s Interrogatories to
Shaw dated December 6, 2013.
Supplemental Interrogatory No. 7:
As to your allegation that Zurich “did not provide a reasonable explanation of the
basis in the policy in relation to the facts or applicable law in support of the declination of
coverage,” state how you were harmed or damaged by this alleged failure.
Answer:
Shaw objects to this Interrogatory as seeking a legal conclusion, and as improper
under the Federal Rules of Civil Procedure. Subject to these objections and its General
Objections, Shaw answers that Washington law presumes Shaw was harmed from
Zurich’s bad faith actions. Shaw also refers Zurich to Shaw’s answer to Interrogatory 4
from Zurich’s Interrogatories to Shaw dated December 6, 2013.
(R. Docs. 259-2, 259-3).
Although Shaw has objected to the foregoing interrogatories on the basis that they seek
legal conclusions, it has nevertheless provided responses in spite of that objection. Accordingly,
the court will not grant Zurich’s motion on the basis that Shaw failed to answer the
interrogatories at all based on its objections that the interrogatories seek legal conclusions.
Zurich’s argument that Shaw’s answers are incomplete in that they do not specifically
identify how Shaw was harmed by Zurich’s actions raises an altogether different issue. Under
Washington law, the bad faith handling of an insurance claim is a tort, and is accordingly
“analyzed applying the same principles as any other tort: duty, breach of that duty, and damages
proximately caused by any breach of duty.” Mut. of Enumclaw Ins. Co. v. Dan Paulson Constr.
Co., 169 P.3d 1, 8 (Wash. 2007) (quoting Smith v. Safeco Ins. Co., 78 P.3d 1274, 1277 (Wash.
2003)). “[W]here an insurer acts in bad faith in handling a claim under a reservation of rights,

8

the insurer is estopped from denying coverage.” Safeco Ins. Co. v. Butler, 823 P.2d 499, 504–05
(Wash. 1992). An insurer who accepts its duty to defend under a reservation of rights, “but then
performs the duty in bad faith is no less liable than the insurer who accepts but later rejects the
duty.” Id. at 504. “[A]n insurer must make a good faith investigation of the facts before denying
coverage and may not deny coverage based on a supposed defense which a reasonable
investigation would have proved to be without merit.” Indus. Indem. Co. v. Kallevig, 792 P.2d
520, 526 (Wash. 1990).
“In order to establish bad faith, an insured is required to show the breach was
unreasonable, frivolous, or unfounded.” Kirk v. Mt. Airy Ins., 951 P.2d 1124, 1126 (Wash.
1998). “Although a showing of harm is an essential element of an action for bad faith handling
of an insurance claim, [the Washington Supreme Court has] imposed a rebuttable presumption of
harm once the insured meets the burden of establishing bad faith. Id. at 1127 (citing Butler, 823
P.2d 499, 504). “Without the rebuttable presumption of harm, the insurer could defend its
position under the following contract theory—even if there were a duty to defend, our bad faith
breach did not cause injury to the insured because ultimate liability was found to be outside the
scope of coverage.” Id.
Here, Shaw has sufficiently answered Interrogatory 4 and Interrogatory 5. Interrogatory
4 requests Shaw to identify Zurich’s acts and omissions upon which Shaw is seeking damages.
In response, Shaw identifies, with sufficient detail, those alleged acts and omissions, i.e.,
Zurich’s alleged breach in bad faith of its duties to defend, as well as its corresponding duties to
investigate and settle. 2 Interrogatory 5 inquires about the damages and penalties sought by Shaw

2

Shaw’s response also identifies some harm resulting from those alleged breaches. For example, Shaw’s
“uncertainty in the defense to a damage claim made by REC” is sufficient for a showing of harm (or
prejudice) under Washington law. See Dan Paulson, 169 P.3d 1, 12 (uncertainty concerning potential
prejudice to an arbitrator by insurance company’s bad faith acts was harmful and prejudicial to insured);

9

in light of these breaches. Shaw identifies, with sufficient detail, the alleged damages and
penalties it is seeking to recover from Zurich. In response to Interrogatory 5, Shaw does not
specifically identify, as requested, the acts or omissions underlying the requested damages and
penalties. Under Washington law, however, where an insured can establish breach of the duty to
defend in bad faith, the resulting measure of damages may presumptively become the reasonable
settlement amount paid by the insured to settle the underlying claim. See Bird v. Best Plumbing
Grp., LLC, 260 P.3d 209, 211 (Wash. Ct. App. 2011), aff’d, 287 P.3d 551 (2012). Washington’s
Insurance Fair Conduct Act also allows a policyholder to recover up to three times its actual
damages for an unreasonable denial of a claim for coverage or payment of benefits by an insurer
for certain acts delineated in the statute. See RCW 48.30.015. Accordingly, the court concludes
that Shaw need not identify which damages it seeks in light of the specific alleged acts or
omissions of Zurich. 3
Zurich’s Supplemental Interrogatories 2, 3, 4, and 7 inquire into the alleged harm
suffered by Shaw as a result of the alleged breaches in bad faith. This inquiry is distinct from
Zurich’s inquiries into whether Zurich had any duties, whether it breached those duties, whether
it acted in bad faith, and the extent of recoverable damages sought by Shaw. Those inquiries are
addressed by Interrogatories 4 and 5. In contrast, Zurich’s Supplemental Interrogatories 2, 3, 4,
and 7 seek information regarding whether Zurich’s alleged acts and omissions actually and
proximately caused Zurich any harm. Zurich provides some responses regarding its resulting
alleged harm in response to Interrogatory 4, but it is unclear whether, in response to the
but see National Union Fire, 2009 WL 1794041 (uncertainty concerning whether defense counsel would
continue representation during billing dispute with insurer is insufficient to establish cognizable harm to
maintain a bad faith claim unless, as in Dan Paulson, the insured “lost control of the case”). Whether
Shaw must specifically identify the alleged harms provided in Interrogatory 4 in response to the
Supplemental Interrogatories is taken up below.
3
The court is taking no position with regard to whether Shaw has correctly identified its recoverable
damages should it prove its allegations.

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Supplemental Interrogatories, the alleged “harms” found in the response to Interrogatory 4 are
the entire universe of alleged “harms” for which Shaw is seeking damages.
The court recognizes that, under Washington law, if Shaw can establish that Zurich
breached its duties in bad faith, i.e., that those breaches were “unreasonable, frivolous, or
unfounded,” then the court must presume that the element of “harm” is satisfied. Kirk, 951 P.2d
at 1126. Nevertheless, that presumption is rebuttable. Butler, 823 P.2d 499, 506 (“[T]he insurer
can rebut the presumption [of harm] by showing by a preponderance of the evidence its acts did
not harm or prejudice the insured.”); National Union Fire Ins. Co. v. Greenwhich Ins. Co., No.
C07-2065, 2009 WL 1794041, at *5 (W.D. Wash. June 22, 2009) (insurer rebutted presumption
of harm on summary judgment where any damages caused by the insurer had already been
awarded to the insurer’s assignee). In order to rebut the presumption of harm, Zurich is entitled
to seek discovery from Shaw regarding any harm alleged or identified, regardless of any
potentially applicable presumption.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense. . . .” Fed. R. Civ. P. 26(b)(1) (emphasis added). Accordingly, because
Zurich’s Supplemental Interrogatories 2, 3, 4, and 7 seek relevant non-privileged information
regarding Zurich’s ability to rebut any presumption of harm (should Shaw first prove the
existence of bad faith), the court will require Shaw to fully answer those supplemental
interrogatories. Shaw’s response that Washington law presumes harm is insufficient. If Shaw’s
only allegation of harm is Washington law’s rebuttable presumption of harm, then Shaw must
explicitly inform Zurich that it is relying solely on that presumption and no underlying facts.
Similarly, if Shaw believes the presumed harms caused by Zurich’s alleged bad faith is

11

imbedded somewhere in its response to Interrogatory 4, then Shaw must explicitly detail those
alleged harms for Zurich in response to the Supplemental Interrogatories.
In short, the court finds that Shaw’s responses to Zurich’s Supplemental Interrogatories 2,
3, 4, and 7 are insufficient. Although the Washington Supreme Court has recognized a
presumption of harm, it has also made it clear that “[w]hether the insurer’s acts prejudiced the
insured is . . . a question of fact.” Butler, 823 P.2d at 506. Shaw must identify any factual bases
on which it alleges it was harmed as requested in Supplemental Interrogatories Nos. 2, 3, 4, and
7.
B.

Zurich’s Requests for Leave to Serve Excess Requests for Admission and
Interrogatories

Rule 33 of the Federal Rules of Civil Procedure and this Court’s Local Rule 36.2 limit
parties to 25 interrogatories and 25 requests for admission during discovery. See Fed. R. Civ. P.
33(a)(1) (“a party may serve on any other party no more than 25 written interrogatories”); LR
36.2 (“No party shall serve on any other party more than 25 requests for admission . . . .”).
Nonetheless, a court may allow a moving party to exceed the set number of interrogatories and
requests for admission where good cause is shown. See LR 36.2 (“Any party desiring to serve
additional requests for admission shall file a written motion setting forth . . . the reasons
establishing good cause for their use.”); Fed. R. Civ. P. 33(a)(1) (“Leave to serve additional
interrogatories may be granted to the extent consistent with Rule 26(b)(2).”); Fed. R. Civ. P.
26(b)(2) (“By order, the court may alter the limits in these rules on the number of depositions
and interrogatories” or requests for admission.).
A court should consider the factors listed in Rule 26(b)(2)(C) of the Federal Rules of
Civil Procedure to determine the existence of good cause. See Estate of Manship v. U.S., 232

12

F.R.D. 552, 558-59 (M.D. La. 2005). 4 “Frequently, the issue becomes whether the requesting
party has adequately shown that the benefits of additional interrogatories outweigh the burden to
the opposing party.” Id. at 559.
1.

Zurich’s Supplemental Interrogatories Nos. 10-16

Zurich served its Initial Interrogatories on Shaw on December 6, 2013 (R. Doc. 259-2)
and its Supplemental Interrogatories on January 2, 2014 (R. Doc. 259-3). Each set of discovery
contained 16 interrogatories, for a total of 32 interrogatories. Shaw refused to answer the final 7
supplemental interrogatories (Nos. 10-16) on the ground that they were beyond the amount of
written interrogatories permitted under Rule 33. (R. Doc. 259-3 at 5-9). The court finds that
Shaw had no duty to answer written interrogatories in violation of the numerical limit in Rule
33(a)(1). Zurich did not seek leave to serve more than 25 interrogatories prior to serving its
Supplemental Interrogatories.
Contrary to its assertion, the court did not implicitly grant Zurich leave to serve more
than 25 interrogatories in its January 16, 2014 order. (R. Doc. 236). Zurich made no request for
leave to serve additional interrogatories under Rule 26(b)(2). The discovery deadline had
expired on December 31, 2013, and the court simply granted Zurich an extension of the
discovery deadline, requiring Shaw to respond to Zurich’s discovery requests by February 15,

4

Rule 26(b)(2)(C), the scope and extent of discovery should be determined by considering whether:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by
discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties' resources, the
importance of the issues at stake in the action, and the importance of the discovery in
resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).

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2014. (R. Doc. 236 at 4). Nothing in the court’s order somehow remedies Shaw’s violation of
Rule 33(a)(1).
Zurich did not seek leave to serve more than 25 interrogatories until March 12, 2014. (R.
Doc. 259). In support of its request for leave, Zurich suggests that the amount of damages
sought in this action justifies leave to file more than 25 interrogatories. Zurich cites no
supporting authorities and makes no particularized showing why the court should grant it leave
to re-serve the seven interrogatories left unanswered by Shaw. Without such a showing, it has
failed to adequately show that the benefits of these additional interrogatories outweigh any
burden to Shaw. Estate of Manship, 232 F.R.D at 559; see Atkinson v. Denton Pub. Co., 84 F.3d
144, 148 (5th Cir. 1996) (denying request to exceed number of allowed interrogatories where
plaintiff “did not explain why additional interrogatories were necessary, beyond stating that the
information related to [defendant’s] defenses in some unspecified way”). The court will,
therefore, deny Zurich’s request to serve more than 25 interrogatories on Shaw under Rule
26(b)(2).
2.

Zurich’s Second Set of Requests for Admissions and Third Set of
Interrogatories

On April 15, 2014, Zurich moved the court for leave to serve an additional 35 requests
for admissions (Second Set of Requests for Admissions) and an additional interrogatory related
to those requests for admissions (Third Set of Interrogatories). (R. Doc. 280). Zurich has
already served 18 requests for admissions on Shaw. The additional 35 requests for admissions
sought by Zurich would exceed the number allowed by Local Rule 36.2, which limits such
requests to 25, by an additional 17 requests for admissions. The additional interrogatory sought
by Zurich (regardless of whether it is characterized as a single interrogatory or thirty-five
interrogatories) would exceed the number allowed by Rule 33.
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Zurich suggests that it has good cause to serve these additional requests for admissions
and interrogatories “[i]n light of the substantial production of documents (which is still growing),
the complexity of the case, and the substantial amount in controversy.” (R. Doc. 280-1 at 1).
Zurich further contends that it has been unable to obtain the sought information through
deposition and prior discovery and that the additional written discovery “is sought to narrow the
issues and potentially streamline the jury trial currently set in this matter.” (R. Doc. 280-1 at 2).
Given the applicable standard, the Court finds Plaintiffs have not established good cause
to warrant allowing more than the twenty-five requests for admissions allowed by Local Rule
36.2. Shaw claims in a conclusory manner that the complexity and high-stakes of this litigation
warrants additional written discovery. It has failed to adequately show, however, that the
benefits of these additional requests will actually narrow the issues or streamline the trial.
Furthermore, as discussed above, Zurich makes no particularized showing why the court should
grant it leave to serve more than twenty-five interrogatories. Estate of Manship, 232 F.R.D at
559; Atkinson, 84 F.3d at 144. Accordingly, the court will not allow Shaw to serve any requests
for admissions or interrogatories exceeding the amounts allowed by Rule 33 of the Federal Rules
of Civil Procedure and this Court’s Local Rule 36.2.
The court will, however, grant Zurich leave to serve seven additional requests for
admissions, of its choosing, to Shaw. The court finds good cause under Rule 16 for extending
the discovery deadline for the limited purpose of allowing this discovery to proceed.
III.

CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Zurich’s Motion to Compel Responses to Interrogatories (R. Doc.

259) is GRANTED in part and DENIED in part. Shaw shall provide Zurich with

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supplemental responses to Supplemental Interrogatories Nos. 2, 3, 4, and 7 no later than May 4,
2014.
IT IS FURTHER ORDERED that Zurich’s Motion for Leave to Serve Excess Requests
for Admission and Excess Interrogatory (R. Doc. 280) is GRANTED in part and DENIED in
part. Zurich may serve on Shaw seven requests for admissions of its choosing from the Second
Requests for Admissions (R. Doc. 280-2) submitted to the court, no later than May 15, 2014.
Shaw may respond to these additional requests for admissions as allowed by the Federal Rules of
Civil Procedure.
Signed in Baton Rouge, Louisiana, on May 5, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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