Cummerlander et al v. Patriot Preparatory Academy et al
Filing
82
OPINION and ORDER denying 79 Motion for Leave to Serve Additional Interrogatories Instanter. Signed by Magistrate Judge Terence P Kemp on 9/5/2014. (agm1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Phyllis Cummerlander, et al.,
:
Case No. 2:13-cv-0329
Plaintiffs,
:
JUDGE ALGENON L. MARBLEY
v.
:
Magistrate Judge Kemp
Patriot Preparatory Academy,
et al.,
Defendants.
:
:
OPINION AND ORDER
This matter is before the Court on a second motion for leave
to serve additional interrogatories instanter filed by plaintiffs
Phyllis Cummerlander and her minor son, referred to as “JT.”
(Doc. 79).
For the reasons set forth below, the motion for leave
will be denied.
I. Background
Prior to filing the instant motion for leave, plaintiffs
filed an initial motion for leave to serve additional
interrogatories instanter.
(Doc. 43).
At issue in the motion
were seven interrogatories numbered 3-9, which plaintiffs served
on Patriot Academy.
Those interrogatories consist of the
following:
Interrogatory No. 3: Identify by student name on the
attached Exhibit A the seat location of each and every
student assigned to and/or present in the Charles Kebealo
class homeroom period at any time during April 20, 2012.
Answer:
Interrogatory No. 4: Describe the process and any related
procedure(s) by which drug testing kits are procured,
used and/or disposed of by the Academy? [sic]
Answer:
Interrogatory No. 5: Identify by name, address and
telephone number the vendor(s) or other source(s) from
which drug kits are procured by the Academy.
Answer:
Interrogatory No. 6: Identify by brand name, or other
information identifying the manufacturer, of the drug
kit(s) possessed by the Academy on April 20, 2012 and/or
on the date of response to this Interrogatory.
Answer:
Interrogatory No. 7: What specific action(s) were taken
to obtain the “consent” of JT and/or Phyllis Cummerlander
regarding the drug testing of JT on April 20, 2012?
Answer:
Interrogatory No. 8: What specific action(s) were taken
by and/or on behalf of the Academy to investigate the
allegation that JT smoked marijuana on April 20, 2012?
Answer:
Interrogatory No. 9: Identify any and all source(s) of
information, including names, address and telephone
number, forming the basis for or otherwise contributing
to Academy Disciplinary Matter No. 202697 (dated April
20, 2012) which identifies JT with the “ . . . sale or
distribution of drugs”.
Answer:
Defendants refused to respond to the interrogatories on the
grounds that they exceeded the maximum allowable under Fed. R.
Civ. P. 33(a). Defendants also argued that, under Fed. R. Civ. P.
26(b)(2)(c), the discovery requested was unreasonably cumulative
and duplicative and that plaintiffs failed to make a
particularized showing as to why the additional interrogatories
were necessary.
The Court considered the initial motion for leave in an
Opinion and Order issued on May 16, 2014.
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(Doc. 67).
In that
Opinion and Order, this Court found that the record was
insufficient to allow it to determine under Fed. R. Civ. P.
26(b)(2)(C) whether the discovery sought was unreasonably
cumulative or duplicative.
The Court noted that, at a minimum,
it would need to examine the previous written interrogatories to
determine whether the information requested could have been
obtained in the initial twenty-five interrogatories allowed
pursuant to Fed. R. Civ. P. 33.
Consequently, the Court denied
the motion without prejudice to plaintiffs’ refiling of their
motion with supporting evidence and argument as set forth in Fed.
R. Civ. P. 26(b)(2), or, alternatively, an agreement among
counsel about this issue.
On July 23, 2014, plaintiffs filed the second motion for
leave to serve additional interrogatories instanter.
(Doc. 79).
Plaintiffs once again seek responses to the interrogatories
numbered 3-9, and they assert that the motion is properly
supported with evidence and argument as set forth in Fed. R. Civ.
P. 26(b)(2).
Plaintiffs further contend that they “sought the
agreement of counsel this Court suggested to no avail except for
the submission of information in response to Interrogatories Nos.
5 and 6....”
Id. at 2.
On August 12, 2014, defendants filed an opposition to
plaintiffs’ motion.
(Doc. 80).
Defendants first contend that
plaintiffs’ motion should be denied because they “waited two
months and seven days after the May 16 Order and fourteen days
after the discovery cut off to file a properly supported motion
for leave.”
Defendants argue that nothing in plaintiffs’ motion
establishes the diligence required to allow plaintiffs to conduct
discovery after the relevant deadline.
Next, defendants argue that the information sought could
have been obtained in the initial twenty-five interrogatories
allowed pursuant to Fed. R. Civ. P. 33.
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Defendants state:
For example, interrogatories Nos. 3-9 ask for information
that would be found in the partes’ initial disclosures
and pre-trial statements. Interrogatory No. 9 asks for
clearly objectionable trial strategy. Interrogatories #8
and #9 sought identification of documents and could have
been framed as document requests.
Thus, Plaintiffs’
[sic] could have easily focused on substantive
information in their initial interrogatories and obtained
the desired information in their initial interrogatories.
For these reasons, defendants request that this Court deny
plaintiffs’ second motion for leave to serve additional
interrogatories instanter.
On August 26, 2014, plaintiffs filed a reply brief in
support of their motion.
(Doc. 81).
Plaintiffs argue that their
motion is not untimely because it “seeks a remedy to Defendants
[sic] refusal to respond to Plaintiffs [sic] timely served
discovery request not permission to extend the discovery cut-off
date.”
Alternatively, plaintiffs urge that they “diligently
pursued the relief provided by the Order.”
Next, plaintiffs
argue that:
Even under Defendant’s [sic] misguided application of the
‘could have been obtained’ language, the Second Motion
should be granted. Defendant’s [sic] nebulous reference
to “initial disclosures and pre-trial statements” as
sources for information sought by Interrogatories No. 3-9
is simply incorrect.
Defendant’s [sic] failure to
specify the exact location of this information in these
documents admits that these documents do not contain this
information. For the first time, Defendant [sic] objects
to Interrogatory No. 9 on “trial strategy” grounds. Even
if timely made, this objection is not sustainable under
the discovery rules as is privileged information.
Contrary to Defendant’s classification of Interrogatories
No. 8 and 9 as document requests, these interrogatories
seek commentary regarding “specific actions” and the
identity of sources of information” not documents.
According to plaintiffs, defendants have failed to make an
adequate showing that the information sought is unreasonably
cumulative and duplicative.
On this basis, plaintiffs urge that
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their motion should be granted.
II.
Discussion
As set forth in this Court’s previous Opinion and Order,
Fed. R. Civ. P. 33 provides that leave to serve additional
interrogatories may be granted to the extent consistent with Fed.
R. Civ. P. 26(b)(2).
Fed. R. Civ. P. 26(b)(2)(C) requires the
Court to limit the frequency or extent of discovery otherwise
allowed under the relevant rules if it determines that:
(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).
Determinations as to whether the
discovery will be permitted under Fed. R. Civ. P. 26(b)(2)(C) are
made on a case-by-case basis and, by definition, involve an
examination of whether the discovery is necessary and reasonable
under the circumstances.
See Myers v. Prudential Ins. Co. of
Am., 581 F. Supp. 2d 904, 914 (E.D. Tenn. 2008).
The Court has reviewed the record in this case and finds
that plaintiffs have had ample opportunity to obtain the
information that they seek by discovery in this action.
This is
not a complex case, and plaintiffs chose not to include the
interrogatories at issue in those allowable under Rule 33.
Moreover, plaintiffs engaged in other discovery in this matter,
which included serving document requests, requests for admission,
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and deposing witnesses.
There has been no suggestion that
plaintiffs have exhausted the discovery available to them under
the Federal Rules of Civil Procedure.
For example, plaintiffs
have not claimed that they have exhausted the ten deposition
limit in Rule 30(a) and the interrogatories at issue are the only
means by which they are able to obtain the requested information.
In addition, plaintiffs have not claimed any financial hardship
or other burden that could have resulted in their inability to
obtain the requested information some other way in the course of
discovery.
In sum, plaintiffs have had ample opportunity to
obtain the information by the other discovery which took place in
this action, and they do not provide this Court with a compelling
reason as to why the additional discovery is necessary in this
instance.
Based upon the foregoing, plaintiffs’ second motion
for leave to serve additional interrogatories instanter (Doc. 79)
will be denied.
III. Conclusion
For the reasons set forth above, plaintiffs’ second motion
for leave to serve additional interrogatories instanter (Doc. 79)
is denied.
IV.
Motion to Reconsider
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
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This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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