Skinner v. Moyer et al

Filing 329

LETTER OPINION AND ORDER Resolving Discovery Dispute in ECF No. 309. Signed by Magistrate Judge Gina L Simms on 12/8/2023. (ols, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
GINA L. SIMMS
UNITED STATES MAGISTRATE JUDGE
[e-mail]

U.S. COURTHOUSE
6500 CHERRYWOOD LANE
GREENBELT, MARYLAND 20770
[phone]

December 8, 2023
Re:

Skinner v. Liller, et al.
Consolidated Civil Action No. TDC-17-3262
LETTER OPINION AND ORDER RESOLVING DISCOVERY DISPUTE

This Letter Order addresses Plaintiff Tracy L. Skinner’s request for issuance of a protective
order related to interrogatory requests served upon him in one of his three pending lawsuits
(“Skinner 1”). (ECF No. 309). 1 Attached to the request are Interrogatories served upon him by
ten (10) Individual Defendants in Skinner 1. (ECF No. 309-1). Counsel for the Defendants filed
an opposition. (ECF No. 314).
On December 1, 2023, the undersigned presided over a telephonic discovery hearing,
during which counsel for the parties were given an opportunity to advance additional oral
arguments. (ECF No. 328). Accordingly, no further argument is necessary. See also Local Rule
105.6 (D. Md. 2023). At the conclusion of the hearing, the Court took the matter under advisement.
(ECF Nos. 327, 328).
I. RELEVANT LAW AND RULES OF CIVIL PROCEDURE
It is well settled that Fed. R. Civ. P. 26(b)(1) defines the scope of permissible discovery:
[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible
in evidence to be discoverable.
The term “relevance” has been “broadly construed to encompass any possibility that the
information sought may be relevant to the claim or defense of any party.” O’Malley v. Trader
Joes East, Inc., Civ. No. RDB 19-3273, 2020 WL 6118841, at *3 (D. Md. Oct. 15, 2020)(internal
citations and quotation marks omitted)(emphasis supplied). This is a pretty low threshold. As
Plaintiff has three cases, Case No. 17-3262, Case No. 20-1996, Case No. 22-293, which have been consolidated.
(ECF No. 190).
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applicable to the instant dispute, the relevant inquiry is whether the information sought may
possibly be relevant to the defense.
The undersigned recognizes that there are limits to the production of even relevant
discovery. Namely, “all permissible discovery must be measured against the yardstick of
proportionality.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010).
In other words, something may be discoverable under Fed. R. Civ. P. 26(b)(1), but it is always to
be measured against the proportionality yardstick, which requires the court to consider several
factors. Specifically, Rule 26 requires that “the frequency or extent of discovery” must be limited
if:
(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 proposed discovery is outside the scope permitted by Rule
26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii); Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir.
2004).
Marrying the aforementioned principles, when analyzing whether to limit discovery, the
court is to: (a) consider “the importance of the issues at stake in the action. . . the importance of
the discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” See Rule 26(b)(1). And, (b) whether the discovery sought runs afoul
of Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii).
In addition, pursuant to Fed. R. Civ. P. 26(c), a party may move for issuance of a protective
order even to preclude the production of relevant evidence. According to Rule 26(c), a court “may,
for good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” The protective order may preclude “inquiry into certain
matters, or [limit] the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P.
26(c)(1)(D). A court may exercise its discretion and restrict the scope of a discovery request, but
the court “must be careful not to deprive a party of discovery that is reasonably necessary to afford
a fair opportunity to develop and prepare the case.” Fed. R. Civ. P. 26 Advisory Committee’s
Note (1983). The burden rests with the movant to establish good cause. Baron v. Natanzon, 240
F.R.D. 200, 202 (D. Md. 2006). In determining whether a movant has met its burden to establish
good cause, a court examines “the nature and character of the information sought by. .
.interrogatory,” which shall be “weighed in the balance of the factual issues involved in [the]
action.” Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 124-25 (D. Md. 2009); see also Baron,
supra, 240 F.R.D. at 202 (moving party must demonstrate “that the discovery sought lacks
relevance to the extent that the likelihood and severity of the harm or injury caused. . . outweighs
any need for the information”)(internal quotation marks and citation omitted). Thus, to obtain a
protective order, a party must meet a high burden. Minter, supra, at 125.

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Furthermore, Fed. R. Civ. P. 33(a)(1) provides that “unless otherwise stipulated or ordered
by the court, a party may serve on any other party no more than 25 written interrogatories.” See
also St. Paul Fire and Marine Ins. Co. v. Birch, Stewart, Kolasch & Birch, LLP, 217 F.R.D. 288,
289 (D. Mass. 2003).
II.

ANALYSIS

In his Amended Complaint, Plaintiff Skinner advances nine claims alleging that different
official and individual capacity Defendants violated his federal constitutional and state statutory
rights “to humane treatment, adequate mental health care, due process, and freedom from
retaliation and disability discrimination.” (ECF No. 112). The allegations include that: Plaintiff
was improperly put in segregated confinement for extended periods of time; and the Defendants
acted indifferently to his serious medical needs. (Id.). The sixteen Defendants have answered the
Amended Complaint, denying liability and asserting, amongst other things, that they acted with
the good faith belief that their actions regarding Plaintiff were proper and consistent with lawful
operating procedures. (ECF No. 130). Accordingly, the Court first finds that if there is any
possibility that the information sought by the Individual Defendants may be relevant to their
defenses asserted, then a party is entitled to discovery, subject to the proportionality restrictions
identified above or Plaintiff’s establishment of good cause to limit the total number of
interrogatories issued.
Plaintiff seeks a protective order reducing the number of interrogatories “that the
Defendants may serve on [Plaintiff] to no more than 25.” According to the Plaintiff, the service
of “more than 200” 2 interrogatories upon him “is an abuse of the discovery process and violates
the intent of the 25-interrogatory limit imposed by [Rule 33(a)(1)].” (ECF No. 309). Specifically,
Plaintiff avers that because the Official and Individual-Capacity Defendants are “similarly
situated” and “collectively alleged to be involved in a common fact pattern regarding [his]
unconstitutional confinement in a segregated cell for nearly three years,” then the law requires
imposition of a protective order requiring answers to only 25 interrogatories in order to prevent
the “undue burden and expense” imposed upon Plaintiff and his counsel. (Id.). Yet, even after the
hearing, it is not entirely clear how these requests impose an “undue expense” on Plaintiff, or an
“undue burden and expense” on Plaintiff’s counsel. (ECF Nos. 309, 328).
The Individual Defendants counter that they are entitled to uncover all “facts and evidence
necessary to allow for the Defendants’ respective development of their defenses.” (ECF No. 314).
In addition, the interrogatories “have been narrowly tailored to their respective discovery needs.”
(Id.). According to the Defendants, then, Plaintiff has failed to meet his high burden of establishing
good cause for entry of a protective order. (Id.).
As a preliminary matter, 177 interrogatory requests are before the undersigned for
consideration, namely requests from the following 10 Defendants in the following total numbers:
Bruce Liller (24); Gary Sindy (18); Jason McMahan (14); Jeff Nines (22); Michelle Sawyers (10);
Richard Roderick (20); Susan Johnson (14); Thomas Sawyers (14); Wayne Hill (20); William
It is not entirely clear to the undersigned the number of interrogatories served by the Individual Defendants upon
Plaintiff. Plaintiff contends that the total number is “more than 200,” while the Individual Defendants assert that
“198” were propounded on him. (ECF No. 309, p. 1; ECF No. 314, p.2 (first full paragraph) and n.1).
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Bohrer (21). (ECF No. 309-1, pp. 1-86).
Next, upon reviewing the Amended Complaint, I find that Plaintiff alleges that these 10
Defendants acted in individual capacities in an unlawful manner. (See, e.g., ECF No. 112, ¶¶ 1218, 20-22). I further find that 7 of the 10 Individual Defendants have different job titles/functions,
and are largely alleged to have committed different acts, although those acts are often plead as
interrelated. (See, e.g., ECF No. 112, ¶¶ 12-15, 20-22). I also find that 3 of the 10 Individual
Defendants--Susan Johnson, Jason McMahan, and Gary Sindy--have the same job title
(Correctional Case Manager II), however, their roles are not described identically. For instance,
Defendant Johnson allegedly acted “in her capacities as a member of the [Special Needs
Unit(SNU)] Treatment Team, a member of the Administrative Segregation Review Board(ASRB),
and a participant in Plaintiff’s Weekly Ad/Seg Reviews.” Defendant McMahan allegedly acted
“in his capacities as Plaintiff’s case manager while on administrative segregation, a member of the
ASRB, and a participant in Plaintiff’s Weekly Ad/Seg Reviews.” Defendant Sindy allegedly acted
“in his capacities as Plaintiff’s case manager while in the SNU program, a member of the SNU
Treatment Team, a member of the ASRB, and a participant in Plaintiff’s Weekly Ad/Seg
Reviews.” (See, e.g., ECF No. 112, ¶¶ 16-18). In sum, I interpret the Amended Complaint to
suggest that these 10 Individual Defendants performed different roles and/or exercised different
responsibilities, which are interrelated, over the period of time at issue. My review of the 177
interrogatories before me reveals that the majority of the interrogatories differ from each other.
(ECF No. 309-1, pp. 1-86). In addition, counsel for the Individual Defendants represented that she
crafted the interrogatories based on her review of the Amended Complaint with each Individual
Defendant and his/her roles and duties in mind. (ECF No. 328). Furthermore, Plaintiff does not
argue that Maryland law does not require the Office of the Attorney General to represent the
Individual Defendants. See Md. Code Ann., State Gov’t § 12-304(a)(1). In light of the foregoing,
I do not find that the 10 Individual Defendants are only nominally separate parties, represented by
one attorney, who are “gaming the discovery process” by seeking responses to a total of 177
interrogatories. (ECF No. 309). There are 10 Individual Defendants, and Rule 33(a) allows each
“party” to serve up to 25 requests on the Plaintiff.
Considering the needs of these Individual Defendants to fully develop relevant facts to
mount adequate defenses, and the importance of the issues “at stake in the action,” the benefits of
requiring answers now (rather than later) to most of the interrogatory answers outweigh the
undefined expense on Plaintiff and his counsel. The Court cannot deprive the Individual
Defendants of a fair opportunity to develop and prepare their cases. See O’Malley, supra; Fed. R.
Civ. P. 26(b)(1); and Fed. R. Civ. P. 26 Advisory Committee’s Note (1983). Regarding the burden
on the Plaintiff, in light of his health issues, responding to the interrogatories will likely be a timeconsuming process, which may be of some burden. However, I find that Defendants are entitled
to the information sought, and responding to most of the interrogatories now, with the assistance
of highly-experienced counsel at a time of his choosing, would be less burdensome than being
required to sit for a deposition to respond orally to the same questions contained in the
interrogatories. See Fed. R. Civ. P. 26(b)(2)(C)(i). And, the Individual Defendants have also
agreed that “Mr. Skinner’s answers to interrogatory can refer the requesting party to a specific
answer given by the Plaintiff in a different set of interrogatories.” (ECF No. 314, p. 2).

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I write that the 10 Individual Defendants are entitled to Plaintiff’s answers to “most” of the
177 interrogatories “now,” because at least sixteen (16) of the interrogatories appear to be
“contention interrogatories.” 3 (See, e.g., Bruce Liller (I-20, I-22, I-24); Gary Sindy (I-6, I-13);
Jason McMahan (I-12 through I-14); Jeff Nines (I-3, I-22); Michelle Sawyers (I-9); Richard
Roderick (I-4, I-14, I-18); Susan Johnson (I-8); and Thomas Sawyers (I-1), ECF No. 309-1). I
find at least Pursuant to Fed. R. Civ. P. 33(a)(2), these interrogatories are permissible, but the
court does retain discretion as to when a party is required to answer them. See Lee, 173 F.R.D. at
652 n.2.
In finding that Plaintiff has not met his burden, I necessarily hold that the cases relied upon
by Plaintiff inapposite. They are factually distinguishable. The case of Zito v. Leasecomm Corp.,
233 F.R.D. 395, 399 (S.D.N.Y. 2006) involved interrogatory requests to require 200 plaintiffs to
each respond to more than 150 interrogatories to identify witnesses and documents relevant to their
case. The court held that the interrogatories were tactically spread amongst the different
defendants, despite the fact that the plaintiffs had already named their potential witnesses and the
production of documents was ongoing. The court found that practice of “little additional benefit.”
(Id.). In the instant case, the interrogatories are not duplicative, and I credit counsel’s
representation that they are tailored to aid in forming the defense of each Individual Defendant.
The case of Gucci Am., Inc. v. Exclusive Imps. Int’l, Civ. No. 99-11490, 2002 WL 1870293, *5
(S.D.N.Y. Aug 13, 2002), involved the defendants’ attempt to serve a third set of 150 interrogatories
upon a plaintiff who had already answered 45 interrogatories and who had been deposed, two facts that
are not present here. In the case of Allen v. School Bd. for Santa Rosa County, Fla., Civ. No. 10-142,
2011 WL 1831764, at *3 (N.D. Fla. May 12, 2011) is also factually distinguishable; the court held that
three defendant school board members could not propound 25 interrogatories each because they had
“consistently litigated [the] case as a ‘single unit.’” The case of McCarthy v. Paine Webber Group,
Inc., 168 F.R.D. 448, 450 (D. Conn. 1996) involved defendants who solely sought plaintiffs’ answers
to contention interrogatories rather than interrogatories designed to identify “witnesses or documents
that bear on the allegations.” The court denied as premature the requests, as discovery was ongoing.
(Id.). Finally, the defendants in the case of Fernandez v. North Dakota, Civ. No. 12-161, 2013 WL
6491387, at *4 (D.N.D. Dec. 9, 2013) agreed that they were one party for purposes of Rule 33(a)(1).
In sum, I do not find that Plaintiff has established good cause for issuance of a protective
order, as required by Minter and Barron, to restrict the 10 Individual Defendants to just 25
interrogatories in total. However, the Court is aware of the Plaintiff’s long history of health
challenges, as acknowledged by the parties in pleadings filed in this case. See, e.g., ECF Nos. 317,
326. Accordingly, exercising my discretion, and engaging in my obligation to ensure that the
process does not become burdensome, I will allow the Plaintiff to provide answers to the
interrogatories on a rolling basis, and to provide answers to the contention interrogatories last. See
Fed. R. Civ. P. 33(a)(2)(“a court may order that [a contention] interrogatory need not be answered until
discovery is complete. . .or some other time”). Thus, Plaintiff shall respond to 161 of the
interrogatories before responding to the 16 contention interrogatories, and all answers are due on a
rolling basis.
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A “contention interrogatory” is a question designed to “help pin down an opponent’s legal theories in a case as well
as the primary facts supporting them.” Lee v. Flagstaff Indus. Corp., 173 F.R.D. 651, 652 (D. Md. 1997); see also
BB&T Corp. v. United States of America, 233 F.R.D. 447 (M.D.N.C. 2006)(“contention interrogatories” seek a party’s
explanation of how the law applies to the facts); In re Convergent Technology Securities Lit., 108 F.R.D. 328, 332-33
(N.D. Cal. 1985)(same).

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Finally, my understanding is that Plaintiff’s counsel represents that the only responsive
documents that his client has have already been produced. (ECF No. 309, p. 1). Thus, after the
Defendants receive Plaintiff’s interrogatory responses, the Defendants will have a significant
amount of discovery from the Plaintiff. At that juncture, the undersigned would certainly be
willing to entertain a request from Plaintiff’s counsel to limit the length of time that Plaintiff would
need to sit for a deposition to answer questions that are arguably similar to those raised in these
interrogatories. Indeed, the Court could likely find that the Defendants would have had ample
opportunity to obtain relevant discovery from other sources that are less burdensome and could
find good cause for entry of a protective order. See Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii).
As set forth herein, Plaintiff’s request for a protective order, ECF No. 309, is DENIED.
Although informal, this is an Order of the Court and shall be docketed as such.

/s/
The Honorable Gina L. Simms
United States Magistrate Judge

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