Ellis et al v. Hobbs Police Department et al
ORDER by Magistrate Judge Gregory B. Wormuth denying 67 Motion to Compel Defendant McCall's Responses to Written Discovery. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BRANDON ELLIS, et al.,
Civ. No. 17‐1011 WJ/GBW
HOBBS POLICE DEPARTMENT, et al.,
ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL DEFENDANT
MCCALL’S RESPONSES TO WRITTEN DISCOVERY
THIS MATTER is before the Court on Plaintiffs’ Motion to Compel Chief
Christopher McCall’s Responses to Written Discovery (doc. 67) and the attendant
briefing (docs. 77, 93). Defendant McCall objected in his Answers to all of Plaintiff’s
interrogatories and requests for production on several grounds, including relevancy
and proportionality, constitutional zone of privacy, existence of a collective bargaining
agreement, and numerosity. See generally docs. 72‐5, 72‐6. Because the Court finds that
the interrogatories directed to Defendant McCall exceeded the total number allowed, it
hereby DENIES Plaintiffs’ Motion to Compel and reserves ruling on Defendant’s other
objections until Plaintiffs have amended their interrogatories.
By order of the Court,1 each side in this case is limited to fifty (50) interrogatories
and fifty (50) requests for production to serve or notice on the other side. Doc. 26 at 1.
Plaintiffs submitted thirteen numbered interrogatories to Defendant McCall. See doc.
72‐5. However, Defendant McCall contends that Plaintiffs exceeded the interrogatory
limit in Interrogatory No. 8 by using subparts that constitute discrete questions and
should therefore count as separate interrogatories. Doc. 77 at 15–16.
Courts have recognized that, while interrogatory subparts are permissible,
“[e]xtensive use of subparts, whether explicit or implicit, could defeat the purposes of
the numerical limit contained…in a scheduling order, by rendering it meaningless
unless each subpart counts as a separate interrogatory.” Williams v. Board of County
Commissioners, 192 F.R.D. 698, 701 (D. Kans. 2000). Accordingly, parties “cannot evade
[interrogatory limitations] through the device of joining as ‘subparts’ questions that
seek information about discrete separate subjects.” Soseeah v. Sentry Ins., 2013 WL
11327129, at *6 (D.N.M. Nov. 4, 2013) (quoting Fed. R. Civ. P. 33 Advisory Committee
Notes (1993 Amendment)).
The Court’s Order Setting Pretrial Deadlines and Briefing Schedule (doc. 26) supersedes the default
limitations of the Federal Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 33(a)(1) (“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.”).
Determining which subparts of an interrogatory constitute discrete questions is a
“case‐specific assessment” not reducible to a “crisp verbal formula.” Synopsys, Inc. v.
Atoptech, Inc., 319 F.R.D. 293, 295 (N.D. Cal. 2016) (internal citation omitted). See also
Burget v. Capital W. Secs., Inc., 2010 WL 11508643, at *2 (W.D. Okla. Mar. 30, 2010) (“The
difficulty with the numerical limitations of interrogatories lies with how to count both
the discrete and natural subparts to interrogatories,” which courts generally resolve “on
a case‐by‐case basis”). However, courts have developed some general principles for
counting interrogatories. Subparts directed toward a “common theme” should
generally be counted as a single interrogatory, while “subparts inquiring into discrete
areas” are generally counted as multiple interrogatories. Williams, 192 F.R.D. at 701
(quoting Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 2168.1, at 261 (2d ed. 1994)); see also Meadows v. Home Depot USA, Inc., 2002
WL 31374956, at *2 (D. Kans. August 29, 2002) (explaining that “subparts directed at
eliciting details concerning a ‘common theme’ should generally be considered a single
question,” while “subparts that inquire into discrete areas should, in most cases, be
counted as more than one interrogatory”). Parties may not evade discovery limitations
“through the device of joining as ‘subparts’ questions that seek information about
discrete separate subjects.” Meadows, 2002 WL 31374956, at *2.
More specifically, some courts have held that “[s]ubparts count as one
interrogatory…only if they are logically or factually subsumed within and necessarily
related to the primary question.” EEOC v. New Mexico Corrections Dep’t, Civ. No 15‐879
KG/KK (D.N.M. Sept. 30, 2016) (quoting Rodriguez v. Chavez, 2013 WL 1444183, at *1 (D.
Colo. Apr. 9, 2013)). Put another way, subparts are considered discrete “if the first
question can be answered fully and completely without answering the second
question.” Paananen v. Cellco P’ship, 2009 WL 3327227, at *2 (W.D. Wash. Oct. 8, 2009)
(quoting Estate of Manship v. U.S., 232 F.R.D. 552, 555 (M.D. La. 2005)) (internal
quotation marks omitted). Conversely, subparts are considered discrete when the
second question is fully independent of the first:
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?
Kendall v. GES Exposition Servs., 174 F.R.D. 684, 685 (D. Nev. 1997).
As explained below, the Court has counted Plaintiffs’ interrogatories under the
guidance of these general principles and concludes that Plaintiffs’ interrogatories to
Defendant McCall alone exceed the Court‐ordered limit of fifty. Notably, however,
Defendant asserts that Plaintiffs have also submitted requests to other individual
defendants. See doc. 77 at 15 (“At the same time that Plaintiffs propounded their
requests to Chief McCall, they sent requests to Defendant J.J. Murphy.”), doc. 45, doc. 46.
It appears that, at least in the case of Defendant J.J. Murphy, these requests included
interrogatories. See doc 46 (“Plaintiffs’ First Set of Interrogatories to Defendant City
Manager J.J. Murphy” sent on August 10, 2018). The scheduling order in this case limits
interrogatories to fifty per side to serve or notice on the other side. Doc. 26 at 1.
Therefore, Plaintiffs’ interrogatories to any Defendant are counted and must not exceed
Interrogatory No. 1
By the Court’s count, Interrogatory No. 1 contains three (3) discrete questions.
Subpart (a) is directed at evaluations “to improve the working environment as it
relates to minority communities.” Doc. 72, Ex. 5 at 2. This is thematically distinct from
the other questions, which ask about racially derogatory remarks.
Subparts (b), (c), and (d) inquire about HPD’s policies and procedures regarding
racially derogatory remarks and ask for information about any discipline of HPD
officers for violation of such policies.
Subparts (e) and (f) ask Defendant McCall about his individual conduct,
including whether Defendant McCall has ever used derogatory remarks/conduct
(regardless of whether he was disciplined for it—indeed, this question is not specifically
limited to the workplace). While related to the broader theme of racially derogatory
remarks, subparts (f) and more particularly (e) diverge from the focus on HPD’s policies
and procedures, and so constitute a discrete area of inquiry.
Interrogatory No. 2
Because all questions within Interrogatory No. 2 are directed at a common theme
(HPD’s affirmative action plan), it is counted as a single interrogatory.
Interrogatory No. 3
Because all questions within Interrogatory No. 3 are directed at a common theme
(a COMSTAT‐like program requiring the presence of reasonable suspicion and probable
cause for every detention), it is counted as a single interrogatory.
Interrogatory No. 4
The Court counts Interrogatory No. 4 as two (2) separate interrogatories.
Subparts (a) and (b) are directed at eliciting information about HPD’s statistics
analyzing arrest and charging practices.2 Subpart (c) asks what measures Defendant
McCall has taken as Chief of Police to ensure that HPD officers’ arrest or charging
practices do not negatively impact minority communities in Hobbs. This subpart,
which has nothing to do with analyzing statistics or data, is thematically separate from
subparts (a) and (b), can be fully answered without reference to subparts (a) and (b),
and must therefore be counted separately.
Interrogatory No. 5
By the Court’s count, Interrogatory No. 5 contains forty‐five (45) discrete
inquiries that will be counted as separate interrogatories.
Subpart (a) asks for documents dating back to June of 2001. Though the Court does not rule here on any
of Defendant’s objections except numerosity, it is skeptical about the relevance and proportionality of
discovery requests focused on information from more than a year prior to the employment of Plaintiffs.
Subpart (a) inquires about Internal Affairs (“IA”) investigations from 2008–2012
concerning HPD policies with a negative impact on minority communities, and is
counted as one interrogatory.3
Subpart (b) asks Defendant McCall to identify any Internal Affairs (“IA”)
investigations and files, final reports, and summary of evidence related to thirty‐two
separately listed employees. Because subpart (b) asks about “any” such investigations
and lacks a common theme tying the IA records of these thirty‐two employees together,
the Court counts it as thirty‐two (32) separate interrogatories.
Subparts (c) and (d) inquire about discipline of HPD officers for using the “N‐
word” or other racial epithets.
Subpart (e) asks why Plaintiff Ellis was not provided with Garrity warnings
during an IA investigation, a topic wholly separate from any other in Interrogatory No.
Subpart (f) asks about discipline of officers for making quota‐based detentions or
arrests, a topic wholly separate from any other in Interrogatory No. 5.
Though the Court does not here rule on any of Defendant’s objections except numerosity, it has serious
concerns about subpart (a)’s overbreadth and vagueness in asking for “any” IA investigations and files
concerning “any” policies having a “negative impact on minority communities.” See, e.g., Burget v. Capital
W. Secs., Inc., 2010 WL 11508643, at *2 (W.D. Okla. Mar. 30, 2010) (“Because defendant’s interrogatories
and requests for production call for ‘each and every’ or ‘any and all’ item of evidence, the Court finds
these discovery requests are not reasonably calculated to lead to the discovery of relevant evidence
because they request items which may be wholly unrelated to a claim or defense in this case.”).
Subpart (h) asks why Plaintiff Ellis did not receive an exit interview, a topic
wholly separate from any other in Interrogatory No. 5.
Subpart (g) and subparts (i) through (o) each address whether complaints were
made against a specific officer in a specific instance. Every one of these subparts elicits
information about a factually distinct subject area and can be fully answered without
reference to any other subpart. Therefore, each is counted as a separate interrogatory for
a total of eight (8) interrogatories.
As of Interrogatory No. 5 (and not counting any additional interrogatories served
on other defendants), Plaintiffs have already exceeded their limit of fifty. For
instructive purposes, however, the Court will continue to count the remainder of the
Interrogatory No. 6
Because all questions within Interrogatory No. 6 are directed at a common theme
(the “Training Officer” program to review complaints of police misconduct), it is
counted as a single interrogatory.
Interrogatory No. 7
Because all questions within Interrogatory No. 7 are directed at a common theme
(“Cultural Diversity” training), it is counted as a single interrogatory.
Interrogatory No. 8
The Court identifies several interrogatories within Interrogatory No. 8, though
the divisions are not precisely consistent with the divisions between subparts.
One common theme is the knowledge of various individuals (specifically Officer
Brendan Ast, Officer Robert Hammer, Officer Crystal Marin, Officer Herndon;
Lieutenant Chad Wright; Jeremy Kirk; and Jeremey Shimer) about the supervision of
Plaintiffs. These questions constitute one interrogatory.
A factually distinct area of inquiry is Jeremy Shimer’s knowledge of the
supervision of Defendant Jeremey Kirk. This is a freestanding question that can be fully
answered without reference to various individuals’ knowledge of Plaintiffs’ supervision,
and therefore is not tied to that line of questions by a sufficiently common theme.
The portion of subpart (b) requesting Defendant to identify all records related to
Lieutenant Chad Wright’s eligibility to oversee the Field Training Program counts as a
single, distinct interrogatory.
Another distinct area of inquiry involves the formal eligibility criteria for training
instructors/Field Training Officers (“FTOs”), contained in subpart (a), and the eligibility
of particular FTOs. Because this same question is asked twice with respect to Jeremy
Kirk and Jeremy Shimer, the Court counts these questions only as they are contained in
subpart (e). As currently written, it is unclear whether subpart (e) should be construed
as one interrogatory or as thirty‐three (33) separate interrogatories. If the thirty‐two
listed individuals are members of the class of “any Field Training Officer who
supervised or trained Plaintiffs,” then the subpart elicits information about a common
theme and should be counted as a single interrogatory. If, however, the thirty‐two
listed individuals are not Field Training Officers who supervised or trained Plaintiffs,
then the subpart lacks a common theme and the request for records about each
individual, as well as the request for records related to any Field Training Officer who
supervised or trained Plaintiffs, must be counted separately for a total of thirty‐three
interrogatories. Plaintiffs are advised to clarify this question in their amended
Depending on the construction of subpart (e), therefore, Interrogatory No. 8 must
be counted as either four (4) or thirty‐six (36) separate interrogatories.
Interrogatory No. 9
Interrogatory No. 9 nominally relates to the systematic analysis that the 2001
Stipulated Agreement required HPD to conduct, on a quarterly basis, for each officer.
Plaintiff alleges that this analysis was supposed to include statistics by race in uses of
force, field contacts, detentions, searches, and citizen’s complaints, use of racial epithets,
and other indicators of possible racial bias.
Subpart (a) does not directly relate to this systematic analysis. It asks Defendant
to identify “any data” showing evidence of racial bias by either the Chief of Police or
the City Manager from 2001 to 2018. This question is not limited to any particular kind
of data, nor is it related to the “systematic analysis on a quarterly basis for each officer,”
since the Chief of Police and City Manager are not officers. Owing to the lack of a
common theme to tie these two questions to one another or any of the other subparts,
they constitute two (2) distinct interrogatories.
Subparts (b) and (c) both appear to relate to the systematic analysis and review of
each officer mandated by the Stipulated Agreement. These questions ask for any
documents, for any HPD officer, relating to these reviews. Because they elicit
information about a common theme, they are counted as one interrogatory.
Subpart (d) inquires whether Defendant McCall, as Chief of Police, has
conducted a systematic analysis of each officer to detect racial bias trends. Such an
analysis could be, but is not necessarily, related to the kind of systematic analysis
mandated by the Stipulated Agreement. Accordingly, as written, subpart (d)
constitutes a separate interrogatory, bringing Interrogatory No. 9 to a total of four (4)
Interrogatory No. 10
Because all questions within Interrogatory No. 10 are directed at a common
theme (the independent monitor/mediator intended to assist in carrying out the
Stipulated Agreement), it is counted as a single interrogatory.
Interrogatory No. 11
Throughout several subparts, Interrogatory No. 11 asks Defendant McCall to
identify whether certain named individuals currently working for HPD are the same
individuals mentioned in a particular set of data compiled from 2001–2002 and cited in
a 2004 Memorandum Opinion and Order.4 Plaintiffs then inquire about what remedial
actions were taken in response to the conduct of those individuals. Subpart (c) asks
Defendant to identify any documents concerning this data that show evidence of
conduct with a disparate racial impact. Assuming that subpart (c) refers to the
referenced set of data only, these questions all elicit details about a common theme (the
set of data compiled from 2001–2002) and are properly counted as one interrogatory.
Subpart (f) asks Defendant to identify any documents where Defendant was
disciplined for use of force, citizen complaints, any violations of the Stipulated
Agreement, or HPD policy. Because this subpart is unlimited in scope or time and
therefore insufficiently related to the aforementioned data set, it must be separately
counted. Therefore, the Court concludes that Interrogatory No. 11 contains two (2)
The Court reiterates that, while it reserves ruling on the issue at this time, information and documents
dating back to 2001–2002, or 2004 for that matter, are very unlikely to be discoverable.
Interrogatory No. 12
Because all questions within Interrogatory No. 12 are directed at a common
theme (meetings between Defendant McCall and the NAACP) it is counted as a single
Interrogatory No. 13
Because all questions within Interrogatory No. 12 are directed at a common
theme (the hiring and employment history of a single officer, Rodney Porter) it is
counted as a single interrogatory.
Requests for Production
Because many of Plaintiffs’ requests for production rely explicitly on Defendant
McCall’s answers to the interrogatories, see generally doc. 72‐6, the Court reserves ruling
on any of Defendant McCall’s objections to the requests for production until Plaintiffs
have submitted their amended interrogatories. The Court reiterates, however, that
Plaintiffs are limited to fifty (50) requests for production to serve on all defendants
For the foregoing reasons, the Court concludes that Plaintiffs’ interrogatories
directed to Defendant McCall exceed the Court‐ordered limit of fifty, and reserves
ruling on Defendant’s other objections. Because Defendants raised a valid objection
(numerosity) to answering Plaintiffs’ interrogatories, Plaintiff’s Motion to Compel Chief
Christopher McCall’s Responses to Written Discovery (doc. 67) is hereby DENIED.
Plaintiffs are directed to amend and propound again their interrogatories (and related
requests for production) keeping in mind the numerical limit of fifty per side. Should
any Defendant object to the amended discovery requests, they must again notify
Plaintiffs of their objections. Defendants are reminded of the requirement that such
objections “be stated with specificity” and not boilerplate. FED. R. CIV. P. 33(b)(4).
IT IS SO ORDERED.
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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?