Rouviere et al v. Depuy Orthopaedics, Inc. et al
Filing
104
ORDER denying 101 Letter Motion to Compel: Plaintiffs motion to compel further responses to their interrogatories is DENIED. (Signed by Magistrate Judge Stewart D. Aaron on 3/7/2020) (Aaron, Stewart)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3/7/2020
Jodi Rouviere, et al.,
Plaintiffs,
1:18-cv-04814 (LJL) (SDA)
-against-
OPINION AND ORDER
Depuy Orthopaedics, Inc. et al.,
Defendants.
STEWART D. AARON, United States Magistrate Judge:
Before the Court is Plaintiffs’ motion to compel Defendant DePuy Orthopaedics, Inc.
(“DePuy”) to provide further responses to Plaintiffs’ interrogatories. (Ltr. Motion, ECF No. 101.)
For the following reasons, Plaintiffs’ motion is DENIED.
BACKGROUND
This is a medical device product liability case arising from injuries allegedly sustained by
Plaintiff Jodi Rouviere after receiving a purportedly defective hip implant. (First Am. Compl., ECF
No. 26, at ¶¶ 6, 279-399.) Plaintiffs allege that hip replacement medical device components
manufactured by DePuy and Howmedica Osteonics Corp. were defective in their manufacture,
warnings and design. (See id.)
Discovery has been ongoing since in or about January 2019. (See Case Management Plan
and Scheduling Order, ECF No. 58.) After two extensions of discovery deadlines, fact discovery is
scheduled to end on April 17, 2020, and expert discovery is scheduled to end on August 17, 2020.
(Am. Scheduling Order, ECF No. 93; Order Extending Deadlines, ECF No. 100.)
On March 2, 2020, Plaintiffs filed the instant letter motion to compel, raising a series of
issues related to DePuy’s responses to Plaintiffs’ interrogatories that were served on February
21, 2019. (Ltr. Motion at 1-4.) Plaintiffs first argue that DePuy’s responses to their interrogatories
were received late, on May 6, 2019. (Id. at 1.) In addition, Plaintiffs take issue with DePuy’s
objections to Plaintiffs’ interrogatories and with the fact that DePuy produced documents in
response to certain interrogatories. (See id. at 1-2, 3.) Plaintiffs attached to their letter motion
their itemized position as to 22 of the 25 interrogatories that were served. (Ltr. Motion Ex. A, ECF
No. 101-1.)
In opposition to the motion to compel, DePuy asserts that its responses were timely
(DePuy Ltr., ECF No. 102, at 2); that Plaintiffs’ interrogatories violate the Local Civil Rules of this
Court (id.); that its responses were nevertheless complete (id. at 2-3); that the additional
information sought by Plaintiffs is irrelevant to their claims (id. at 3-4); that it properly produced
responsive documents in response to certain interrogatories (id. at 4); and that its objections
were proper. (Id.) DePuy attached to its letter, among other things, Plaintiffs’ interrogatories
themselves. (DePuy Ltr. Ex. B, ECF No. 102-2.)
In reply, Plaintiffs argue about the relevance of the discovery they seek and complain that
certain documents that were produced by DePuy were “unreadable,” “smeared” and
“incomplete.” (Reply, ECF No. 103.)
LEGAL STANDARDS
Federal Rule of Civil Procedure 33 permits a party to serve no more than 25 written
interrogatories, including discrete subparts. Fed. R. Civ. P. 33(a)(1). An interrogatory may relate
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to any matter that may be inquired into under Federal Rule of Civil Procedure 26(b)(1). However,
the Local Civil Rules of this Court place limits on the use of interrogatories.
Local Civil Rule 33.3(a) provides as follows:
Unless otherwise ordered by the Court, at the commencement of discovery,
interrogatories will be restricted to those seeking names of witnesses with
knowledge of information relevant to the subject matter of the action, the
computation of each category of damage alleged, and the existence, custodian,
location and general description of relevant documents, including pertinent
insurance agreements, and other physical evidence, or information of a similar
nature.
S. & E.D.N.Y.R. 33.3(a). Local Civil Rule 33.3 is not in conflict with the Federal Rules because it “is
entirely consistent with Rule 26(b)(2)(C), which authorizes the court, on its own initiative, to limit
the burden and expense of discovery. A local rule that establishes a sequence for discovery and
establishes a presumptive preference for certain discovery tools is consistent with this principle
and in no way conflicts with Rule 33.” Gary Friedrich Enterprises, LLC v. Marvel Enterprises, Inc.,
No. 08-CV-01533 (BSJ) (JCF), 2011 WL 1642381, at *4 (S.D.N.Y. Apr. 26, 2011).
Motions to compel are left to the sound discretion of the court. See Syntel Sterling Best
Shores Mauritius Ltd. v. TriZetto Grp., Inc., 328 F.R.D. 450, 452 (S.D.N.Y. 2018). Moreover, a
district court has broad latitude to determine the scope of discovery and to manage the discovery
process. See id.
ANALYSIS
Based upon review of the correspondence provided by DePuy in its response letter, the
Court is satisfied that, contrary to Plaintiffs’ assertion, DePuy’s interrogatory responses were
timely. (See DePuy Ltr. Ex. C, ECF No. 102-3.)
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The Court has reviewed Plaintiffs interrogatories and finds that they repeatedly violate 1
Local Civil Rule 33.3(a), which limits interrogatories to those “seeking names of witnesses,”
information relating to “the computation of damages,” and learning “the existence, custodian,
location and general description of relevant documents.” Local Civil Rule 33.3(a). 2 Notably,
Plaintiffs are familiar with this Local Civil Rule, as they agreed in a letter to DePuy, dated
November 5, 2019, to withdrew Interrogatories 7 and 23 “in compliance with Local Rule 33.3.”
(DePuy Ltr. Ex. D, ECF No. 102-4, at 3, 7.) Because the interrogatories at issue do not relate to
witness names, damages or documents, Plaintiffs’ motion to compel is denied.
Plaintiffs’ additional arguments are unavailing. Plaintiffs’ assert that their interrogatories
are the “most efficient means of discovery” is untrue. (Ltr. Motion at 2.) A more efficient means
of obtaining relevant information would be for Plaintiffs to pose questions to a corporate
For example, Interrogatory 6 requests information about “any and all clinical trials on any and all hip
systems that include the Summit Tapered Stem and all explant retrieval programs on any and all hip
systems that include the Summit Tapered Stem, any and all results of their analyses performed since the
inception of the product. Include for each and every unit tested; who tested it, name address and phone
number of the person or organization who tested it, on what date it was tested, what the findings of each
test were, when the Defendant became aware of those testing results and what the Defendant's role in
the study was specifically.” (Pls.’ First Interrogatories ¶ 6.) Similarly, Interrogatory 15 asks DePuy to
“[s]tate in detail all design modifications or alterations that have been considered for the product and
component parts from the date of design to the present. As to each such modification or alteration, please
state: whether or not it was adopted, and if not, the reasons for rejection; the individual or individuals (by
name, title and business address) who proposed such change; and the problem or potential problem
intended to be addressed, ameliorated or corrected by the design, modification or alteration.” (Pls.’ First
Interrogatories ¶ 15.)
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Plaintiffs also are in violation of Federal Rule of Civil Procedure 33, which limits interrogatories to 25
questions, including discrete subparts. Fed. R. Civ. P. 33(a). Many of Plaintiffs’ 25 interrogatories contain
multiple subparts within them; in one instance (Pls.’ First Interrogatories ¶ 5), there are more than ten
distinct questions within a single interrogatory. See Cramer v. Fedco Auto. Components Co., No. 01-CV0757E (SR), 2004 WL 1574691, at *4 (W.D.N.Y. May 26, 2004) (“[I]nterrogatory subparts are to be counted
as discrete subparts if they are not logically or factually subsumed within and necessarily related to the
primary question. . . . [I]f the first question can be answered fully and completely without answering the
second question, then the second question is totally independent of the first and not factually subsumed
within and necessarily related to the primary question.” (quotation marks and citations omitted)).
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designee of DePuy, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. If Plaintiff
chooses to serve a Rule 30(b)(6) notice upon DePuy, and after meeting and conferring in good
faith, the parties are unable to agree as to the scope of the notice, the Court shall resolve the
scope issues at that time. 3 See Bigsby v. Barclays Capital Real Estate, Inc., 329 F.R.D. 78, 81
(S.D.N.Y. 2019) (Aaron, M.J.) (discussing Rule 30(b)(6) legal standards).
As to Plaintiffs’ argument that Defendant improperly produced documents in response to
certain interrogatories, the Court disagrees. Rule 33(d) of the Federal Rules of Civil Procedure
expressly provides the responding party the option to produce business records in response to
an interrogatory. Fed. R. Civ. P. 33(d). The Court credits DePuy’s explanation of what was
produced. (See DePuy Ltr. at 4.) However, the Court directs that the parties meet and confer with
respect to any documents produced by DePuy that are unreadable, smeared and incomplete.
DePuy promptly shall remedy any defects in this regard.
The Court declines to resolve at this time the parties’ dispute as to whether Plaintiffs may take discovery
regarding so-called Biolox Head since such dispute arises in the context of Plaintiffs’ improper
interrogatories. The Court expects the parties to meet and confer in good faith regarding any future
discovery disputes regarding the Biolox Head, keeping in mind that Federal Rule of Civil Procedure 26
allows parties to “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.” Fed. R. Civ. P. 26(b)(1).
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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to compel further responses to their
interrogatories is DENIED.
SO ORDERED.
DATED:
New York, New York
March 7, 2020
______________________________
STEWART D. AARON
United States Magistrate Judge
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