Billings v. Conseco Health Insurance Company

Filing 52

ORDER granting in part and denying in part 49 plaintiff's Motion to Compel Defendant to Respond to Interrogatories Requested in Discovery as follows: (1) The Court grants the motion to compel as to plaintiff's Interrogatory No. 15;(2) The Court denies the motion to compel as to plaintiff's Interrogatory Nos. 16-21, and (3) The Court grants plaintiff leave to propound his additional interrogatories, specifically plaintiff's Interrogatory Nos. 16-21. Defendant shall respond to plaintiff's Interrogatory Nos. 15-21 within 30 days of the date of this Order (as more fully set out in Order). Signed by Honorable Vicki Miles-LaGrange on 12/12/2011. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GARY BILLINGS, Limited Guardian of
the Person of DONALD BILLINGS,
an incapacitated person,
Plaintiff,
vs.
CONSECO HEALTH INSURANCE
COMPANY,
Defendant.

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Case No. CIV-10-372-M

ORDER
Before the Court is plaintiff’s Motion to Compel Defendant to Respond to Interrogatories
Requested in Discovery, filed November 4, 2011. On November 25, 2011, defendant filed its
response, and on December 2, 2011, plaintiff filed his reply. Based upon the parties’ submissions,
the Court makes its determination.
Plaintiff moves this Court to compel defendant to properly respond and answer plaintiff’s
Interrogatory Nos. 15-21. Defendant objected to these interrogatories on the basis that they
exceeded the allowance of Federal Rule of Civil Procedure 33(a)(1), which limits interrogatories to
25, including all discrete subparts.
Rule 33(a)(1) provides:
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. Leave to serve additional interrogatories may
be granted to the extent consistent with Rule 26(b)(2).
Fed. R. Civ. P. 33(a)(1).

Discrete subparts are included in the interrogatory limit to prevent abuse; however, they
remain problematic because they are often difficult to identify. The advisory committee has
provided the following guidance as to when subparts should count as separate interrogatories:
Each party is allowed to serve 25 interrogatories upon any other
party, but must secure leave of court (or a stipulation from the
opposing party) to serve a larger number. Parties cannot evade this
presumptive limitation through the device of joining as “subparts”
questions that seek information about discrete separate subjects.
However, a question asking about communications of a particular
type should be treated as a single interrogatory even though it
requests that the time, place, persons present, and contents be stated
separately for each such communication.
Fed. R. Civ. P. 33(a) advisory committee’s note (1993 Amendments).
Federal Practice and Procedure commentators Wright, Miller and Marcus have elaborated
on the advisory committee’s note as follows:
The application of the numerical limitation on interrogatories can
present problems in some cases, given the direction that “discrete
subparts” be counted as separate interrogatories for purposes of the
25-question rule. The Advisory Committee provided some insight on
this problem by explaining that “a question asking about
communications of a particular type should be treated as a single
interrogatory even though it requests that the time, place, persons
present, and contents be stated separately for each such
communication.” Thus, it would appear that an interrogatory
containing subparts directed at eliciting details concerning a common
theme should be considered a single question, although the breadth
of the area inquired about may be disputable. On the other hand, an
interrogatory with subparts inquiring into discrete areas is likely to
be counted as more than one for purposes of the limitation.
8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure §
2168.1, at 39-40 (3d ed. 2010).
Courts that have addressed this issue have stated:

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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? Genuine subparts
should not be counted as separate interrogatories. However, discrete
or separate questions should be counted as separate interrogatories,
notwithstanding [that] they are joined by a conjunctive word and may
be related.
Wildearth Guardians v. Public Serv. Co. of Colo., Civil Action No. 09-cv-01862-ZLW-MEH, 2010
WL 5464313, at *2 (D. Colo. 2010) (quoting Kendall v. GES Exposition Servs., Inc., 174 F.R.D.
684, 685 (D. Nev. 1997)).
In the case at bar, defendant asserts that plaintiff’s Interrogatory Nos. 4-14 each count as
more than one interrogatory because the requests to identify documents and witnesses each
constitute discrete subparts. Plaintiff, on the other hand, contends that the requests to identify
documents and witnesses are part of a common theme and should be counted as one interrogatory.
While the courts are split as to whether requests to identify documents and witnesses in relation to
the first part of an interrogatory are part of a common theme and should be counted as one
interrogatory or are discrete subparts, reviewing the interrogatories at issue in this case, the Court
finds that the subparts of plaintiff’s Interrogatory Nos. 4-14 are part of a common theme and should
be counted as one interrogatory. Accordingly, the Court finds that plaintiff’s Interrogatory Nos. 114 each count as one interrogatory, resulting in a total of 14 interrogatories – 11 interrogatories less
than the twenty-five interrogatory limit set forth in Rule 33(a)(1). The Court, therefore, finds that
defendant should be compelled to respond and answer plaintiff’s Interrogatory No. 15.
Defendant also asserts that plaintiff’s Interrogatory No. 16 counts as more than one
interrogatory. Interrogatory No. 16 states as follows:

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If YOUR response to any of the Requests for Admission served
contemporaneously herewith is anything other than an unqualified
admission, set forth the factual basis for YOUR denial or partial
denial and IDENTIFY each DOCUMENT YOU believe supports
such denial or partial denial as well as each PERSON YOU intend to
call to testify as a witness to support such denial or partial denial.
Courts have found that “an interrogatory that asks the responding party to state facts, identify
witnesses, or identify documents supporting the denial of each request for admission contained in
a set of requests for admissions usually should be construed as containing a subpart for each request
for admission contained in the set.” Safeco of Am. v. Rawstron, 181 F.R.D. 441, 446 (C.D. Cal.
1998). See also Wildearth, 2010 WL 5464313, at *4. As the Safeco court stated:
Allowing service of an interrogatory which requests disclosure of all
of the information on which denials of each of [the] requests for
admissions were based, however, essentially transforms each request
for admission into an interrogatory. This is not the purpose requests
for admissions were intended to serve, and because Rule 36 imposes
no numerical limit on the number of requests for admissions that may
be served, condoning such a practice would circumvent the numerical
limit contained in Rule 33(a).
Safeco, 181 F.R.D. at 445.
Having carefully reviewed the requests for admission to which defendant responded with
“anything other than an unqualified admission”, the Court finds that said requests concern different,
separate, or discrete matters, and, thus, the Court finds that plaintiff’s Interrogatory No. 16 should
be construed as containing a discrete subpart for each request for admission that falls within
plaintiff’s Interrogatory No. 16, resulting in at least sixteen (16) discrete subparts. Accordingly, the
Court finds that plaintiff exceeds the twenty-five interrogatory limit with plaintiff’s Interrogatory
No. 16.

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In his motion, plaintiff alternatively moves the Court to allow him to propound the additional
interrogatories over the twenty-five interrogatory limit. Having carefully reviewed the parties’
submissions, and in the interests of justice and for good cause shown, the Court finds that plaintiff
should be allowed to propound his additional interrogatories.
Accordingly, for the reasons set forth above, the Court GRANTS IN PART and DENIES IN
PART plaintiff’s Motion to Compel Defendant to Respond to Interrogatories Requested in
Discovery [docket no. 49] as follows:
(1)

The Court GRANTS the motion to compel as to plaintiff’s Interrogatory No.
15;

(2)

The Court DENIES the motion to compel as to plaintiff’s Interrogatory Nos.
16-21, and

(3)

The Court GRANTS plaintiff leave to propound his additional
interrogatories, specifically plaintiff’s Interrogatory Nos. 16-21.

Defendant shall respond to plaintiff’s Interrogatory Nos. 15-21 within thirty (30) days of the date
of this Order.
IT IS SO ORDERED this 12th day of December, 2011.

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