Fishon et al v. Peloton Interactive, Inc.

Filing 115

ORDER denying #113 Letter Motion to Compel. Plaintiffs Eric Fishon and Alisha Pearlman move to compel responses by Defendant Peloton Interactive, Inc. (Peloton) to Plaintiffs Third Set of Interrogatories and Fourth Set of Interrogatories. Dkt. No. 113. The motion is denied. (As further set forth herein.) SO ORDERED. (Signed by Judge Lewis J. Liman on 9/9/2021) (va)

Case 1:19-cv-11711-LJL Document 115 Filed 09/09/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ERIC FISHON and ALICIA PEARLMAN, individually :
and on behalf of all others similarly situated,
:
:
Plaintiffs,
:
:
-v:
:
PELOTON INTERACTIVE, INC.,
:
:
Defendant.
:
:
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9/9/2021

19-cv-11711 (LJL)
ORDER

LEWIS J. LIMAN, United States District Judge:
Plaintiffs Eric Fishon and Alisha Pearlman move to compel responses by Defendant
Peloton Interactive, Inc. (“Peloton”) to Plaintiffs’ Third Set of Interrogatories and Fourth Set of
Interrogatories. Dkt. No. 113. The motion is denied.
The operative case management plan in this case provides for fact discovery to be
conducted in two phases. Phase One is directed to fact discovery for class certification purposes.
Dkt. No. 94-1. Interrogatories pursuant to Rule 33.3(a) of the Local Rules of the Southern
District of New York were to have been served by March 25, 2020. Id. ¶ 7B. Supplemental
discovery requests were to be served by February 5, 2021. Id. ¶ 7D. Contention interrogatories
were to be served consistent with Rule 33.3(c) of the Local Rules of the Southern District of
New York. Id. ¶ 7C. That rule states: “At the conclusion of other discovery, and at least 30 days
prior to the discovery cut-off, interrogatories seeking the claims and contentions of the opposing
party may be served unless the Court has ordered otherwise.” Local Civil Rule 33.3(c). Fact
discovery for class certification purposes was to be completed by August 16, 2021.
Phase Two addresses any remaining fact discovery that may be necessary following any
class certification ruling. The case management plan leaves the question of whether there is to
be any additional discovery to be discussed between the parties and to the discretion of the
Court. Any Phase Two discovery is to be commenced only after the class certification ruling and
only after the parties have met and conferred and only as approved by the Court. It is to be
completed within 120 days or less of the class certification ruling, with a specific schedule to be
negotiated, if necessary and as detailed below, following any class certification ruling.
Plaintiffs’ Third Set of Interrogatories were served on July 16, 2021, and their Fourth Set
of Interrogatories were served on August 10, 2021, well after the February 5, 2021 deadline and
months late for the service of anything but contention interrogatories. They are untimely.
Plaintiffs offer two responses. First, Plaintiffs contend that the interrogatories are
contention interrogatories. Contention interrogatories need not use the word contention, they
say. It is sufficient if they will assist the parties “‘in narrowing and clarifying the disputed
issues’ in advance of summary judgment practice or trial.” Dkt. No. 113 (quoting Phillies v.

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Harrison/Erickson, Inc., 2020 WL 6482882, at *2 (S.D.N.Y. Nov. 4, 2020)).
Plaintiffs’ first response is without merit. “In this District, contention interrogatories,
unlike other types of discovery, are not designed to reveal new information to the opposing side”
and “courts generally resist efforts to use contention interrogatories as a vehicle to obtain every
fact and piece of evidence a party may sigh to offer concerning a given issue at trial.” Phillies,
2020 WL 6482882, at *2; see also Pasternak v. Kim, 2011 WL 4552389, at *3 (S.D.N.Y. Sept.
28, 2011) (“Contention interrogatories should be carefully drafted to obtain ‘contentions,’ rather
than something more appropriately obtained through other discovery methods, such as
depositions”); Erchonia Corp. v. Bissoon, 2011 WL 3904600, at *8 (S.D.N.Y. Aug. 26, 2011)
(“the Local Rules do not anticipate that parties will use contention interrogatories to develop new
information or provide notice of claims that could be followed by new rounds of other
discovery”); Michael Silberberg, Edward M. Spiro & Judith L. Mogul, Civil Practice in the
Southern District of New York § 20:7 (2020) (“Contention interrogatories should be carefully
tailored to obtain ‘contentions’; they are not an excuse to inflict burden by requiring an adversary
to spew out numerous factual details or to regurgitate all factual information obtained during
discovery. A party will not be required to go through documents already produced in order to
explain what is ‘obvious’ nor will they be required to identify witnesses and documents where
that information is required to be supplied in the pretrial order.”). With two exceptions, the
interrogatories are not drafted to ask for an “opinion or a contention that relates to fact,” Fed. R.
Civ. P. 33(a)(2), but rather are addressed to finding the facts in the first place. Indeed, Plaintiffs
candidly admit that the interrogatories seek information Plaintiffs claim they were unable to
obtain through discovery including depositions. They are not proper contention interrogatories.
See, e.g., Pasternak, 2011 WL 4552389, at *3 (denying motion to compel responses to purported
contention interrogatories where the interrogatories sought more than defendant’s “specific
position on particular issues in the case” and demanded that defendant “describe all facts and
produce all the documents that support his principal allegations in his defense of the lawsuit” and
would not “narrow the issues for trial”); Ritchie Risk-Limited Strategies Trading (Ireland), Ltd.
v. Coventry First LLC, 273 F.R.D. 367, 369 (S.D.N.Y. 2010) (“Plaintiffs should not be ‘required
to parse through documents that have already been produced to defendants, which defendants are
in a position to review themselves, in order to explain the obvious.’”) (quoting Tribune Co. v.
Purcigliotti, 1997 WL 540810, at *2 (S.D.N.Y. Sept. 3, 1997)).
Second, Plaintiffs argue that the interrogatories were properly issued pursuant to Local
Civil Rule 33.3(b) because “they are a more practical method of obtaining the information
sought than a request for production or a deposition.” Local Civil Rule 33.3(b). Local Civil
Rule 33.3(b) is a limitation on the interrogatories that may be served. A party in the Southern
District of New York may serve interrogatories other than contention interrogatories and those
addressed to preliminary matters such as the names of witnesses with knowledge or information
relevant to the subject matter of the action,” only (a) by order of the Court or (b) if “they are a
more practical method of obtaining the information sought than a request for production or a
deposition.” Id. Plaintiffs argue that the interrogatories are more efficient than, for example, a
30(b)(6) deposition because Defendant’s 30(b)(6) deponent was not able to answer all of
Plaintiffs’ questions.
Local Civil Rule 33.3(b) would have permitted Plaintiffs to serve, by February 2021,
interrogatories seeking information other than that covered by Local Civil Rule 33.3(a) if they
could make a showing that interrogatories were more efficient than, for example, a deposition.
The Local Rule, however, does not give Plaintiffs license, having first taken the 30(b)(6)

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deposition, then to claim disappointment with the answers they received and serve an untimely
interrogatory. See O’Brien v. Lane Bryant, Inc., 1987 WL 6914, at *2 (S.D.N.Y. Feb. 11, 1987)
(holding that a plaintiff seeking to proceed by interrogatory must show a “good faith basis” for
using interrogatories rather than depositions).
If Plaintiffs believed that Defendant’s 30(b)(6) deponent was inadequately designated or
prepared or limited in the scope of the answers he was permitted to give, Plaintiffs’ recourse was
to make a motion directed to the 30(b)(6) deposition. That motion then would have been judged
against the law relevant to the topics that can be addressed through a 30(b)(6) deposition and the
preparation required for such a deposition. See Soroof Trading Dev. Co., Ltd. v. GE Fuel Cell
Sys., LLC, 2013 WL 1286078, at *2 (S.D.N.Y. Mar. 28, 2013) (ordering a new 30(b)(6)
deposition because the original 30(b)(6) witness was not properly prepared and holding that Rule
30(b)(6) establishes a two-step process under which the party seeking the 30(b)(6) deposition
must first “serve a notice that describes ‘with reasonable particularity’ the issues and topic that
will be addressed at the deposition” and that then the responding party must “make a
conscientious good-faith endeavor to designate the persons having knowledge of the matters
sought by [the party noticing the deposition] and to prepare those persons in order that they can
answer fully, completely, unevasively, the questions posed . . . as to the relevant subject
matters.” (quoting Sheehy v. Ridge Tool Co., 2007 WL 1548976, at *4 (D. Conn. May 24, 2007)
then Tailored Lighting Inc. v. Osram Sylvania Prods., Inc., 255 F.R.D. 340, 349 (W.D.N.Y.
2009))). Plaintiffs did not make such a motion. They cannot avoid the need to make such a
motion and to satisfy the standards necessary to show a violation of Rule 30(b)(6) by exercising
self-help and serving a purported, and untimely, Local Civil Rule 33.3(b) interrogatory.
SO ORDERED.
Dated: September 9, 2021
New York, New York

__________________________________
LEWIS J. LIMAN
United States District Judge

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