McKie et al v. Sears Protectection Co. et al
Filing
24
AMENDED OPINION & ORDER regarding discovery issues. Signed on 5/3/11 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF OREGON
JEFFREY MCKIE and SUSAN MCKIE,
Plaintiffs,
CV 1O-1531-PK
AMENDED OPINION AND
ORDER
SEARS PROTECTION CO.; SEARS
ROEBUCK CO.; SEARS HOME
IMPROVEMENT PROCUDTS, INC;
SEARS HOLDINGS CORP.,
Defendants.
PAPAK, Judge:
Plaintiffs and defendants jointly submitted an informal letter detailing their discovelY
disputes and the court held a telephone conference on April 26, 2011 with the parties concerning
those discovelY issues. The single issue taken under advisement is whether Fed. R. Civ. P. 33(d)
requires defendants to include a detailed description of the specific documents constituting their
Page 1 - AMENDED OPINION AND ORDER
responses to Intenogatories 2,6,7, and 8, instead of merely producing those documents.
Plaintiffs argue that defendants fail to satisfY the first requirement of Rule 33(d) because they do
not specifY the records that must be reviewed, instead forcing the plaintiffs to guess which
documents respond to their intenogatories. Defendants, by contrast, contend that they have
provided less than 250 pages of documents for plaintiff to review and that specifYing the exact
pages of those documents that respond to the intenogatories is unnecessary because it is selfevidence which documents are responsive. Further, defendants assert that they have already
produced various logs documenting correspondences and emails to and from plaintiffs pursuant
to responses for production that would enable plaintiffs to locate the documents they seek just as
easily as defendants could. I find that Rule 33(d) requires no additional response from
defendants as to Interrogatories 6,7, and 8 and that IntenogatOlY 2 improperly requests disclosure
of protected work product.
Rule 33(d) provides an alternative method for a party to respond to an intenogatory when
the answer may be derived from the business records of the responding party:
If the answer to an interrogatOlY may be determined by examining, auditing, compiling,
abstracting, or summarizing a party's business records (including electronically stored
information), and if the burden of deriving or ascertaining the answer will be substantially
the same for either patty, the responding party may answer by:
(1) specifYing the records that must be reviewed, in sufficient detail to enable the
interrogating party to locate and identifY them as readily as the responding patty
could; and
(2) giving the intenogating party a reasonable opportunity to examine and audit
the records and to make copies, compilations, abstracts, or summaries.
Fed. R. Civ. P. 33(d). The AdvisOlY Committee notes to Rule 33(d) make clear that a patty
pelmitted to offer records in lieu of answering an intenogatory must "offer them in a manner that
pelmits the same direct and economical access that is available to the party." (Notes of AdvisOlY
Page 2 - AMENDED OPINION AND ORDER
Committee on 1980 Amendment to Rule 33(c) (renumbered Rule 33(d) in 1993)). Case law
suggests that Rule 33(d) does not permit the responding party to create an unequal burden for the
receiving pmi)', for example, by declining to supply an already-existing compilation that answers
the intelTOgatories or by producing a mass of records that can only be deciphered by the
responder. See Sadoftky v. Fiesta Products, LLC, 252 F.R.D. 143, 148 (E.D.N.Y. 2008)
(collecting cases). Nevertheless, "the rationale behind Rule 33(d) is to shift the burden of
compiling the infonnation and, accordingly, asceliaining the answer, from the producing party to
the interrogating party." Id Thus, where one ofthe parties must undertake the task of compiling
the information and the records presented me not voluminous or indecipherable, "the
interrogating party should bear the responsibility of compiling the information." Id at 149.
Here, the documents to be reviewed are a manageable 250 pages. The chmis already
produced concerning the correspondence and communication between plaintiffs and defendants
provide a guide to those documents. Plaintiffs do not point to any special knowledge defendants
possess that is necessary to read and interpret the documents, at least concerning documents
memorializing the contacts between the McKies and Sears. Thus, regarding Interrogatories 6,7,
and 8, all of which peliain to communications between the plaintiffs and defendants, the
plaintiffs must bear the burden of compiling the answers to their own queries.
III
III
1//
//1
1//
Page 3 - AMENDED OPINION AND ORDER
By contrast, Inten'ogatory 2 seeks a different sort of information: a list of documents
consulted by defendants in the preparation of answers to interrogatories. Even though defendants
admit that none of the documents reviewed in the preparation of their discovery responses are
privileged, defendants argue that identification of those documents would require disclosure of
work product and confidential communications. Defendants' objection on that ground to
Interrogatory 2 is proper and hereby affirmed.
IT IS SO ORDERED.
.'fit .
Dated this.3
day of May, 2011.
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'\/~11 feo .~ l~r,:~a)t~
Honorable Paul Papak
United States Magistrate Judge
Page 4 - AMENDED OPINION AND ORDER
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