Ott v. Mortgage Investors Corporation of Ohio, Inc. et al

Filing 102

OPINION AND ORDER: Denying Motion for a Protective Order 96 . MIC shall respond to plaintiff's remaining Interrogatories No. 8-12 and 14-15 in seven days. Signed on 2/17/15 by Magistrate Judge Janice M. Stewart. (ST)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

KELLY OTT; NANCY LUEBBEN; and
BENJAMIN GESLER, on behalf of
themselves and all others similarly situated,
Case No. 3:14-cv-00645-ST
Plaintiffs,
OPINION AND ORDER
v.
MORTGAGE INVESTORS
CORPORATION OF OHIO, INC., an Ohio
corporation also doing business as
MORTGAGE INVESTORS
CORPORATION, AMERIGROUP
MORTGAGE CORPORATION,
VETERANS INFORMATION
DEPARTMENT and VETERANS HOME
LOANS; WILLIAM EDWARDS,
individually; JEFFREY CRILLEY,
individually; JAMES SHATZ, individually;
and JOHN WESLEY BAILEY III,
individually,
Defendants.

STEWART, Magistrate Judge:
In this class action lawsuit, plaintiffs allege that defendants, including Mortgage Investors
Corporation (“MIC”), placed millions of telemarking calls to veterans of the United States
military, or people MIC believed to be veterans, for the purpose of selling them mortgage
1 – OPINION AND ORDER

products. On December 16, 2014, plaintiffs served 15 separately numbered interrogatories (one
of which was later withdrawn) on MIC designed to elicit information regarding the calls.
Pursuant to FRCP 33(a)(1), “a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” Based on its analysis of the subparts in the
remaining 14 interrogatories, MIC asserts that plaintiffs served at least 42 interrogatories,
responded only to Interrogatories Nos. 1-7, and refused to respond further on the basis that it
had, at that point, answered 25 interrogatories.
MIC has filed a Motion for Protective Order (docket #96) asking the court to determine
that plaintiffs have impermissibly propounded more than 25 interrogatories and that MIC need
not respond to any additional interrogatories after Interrogatory No. 7 or, in the alternative,
determine the number of interrogatories already propounded by plaintiffs and establish a total
per-side interrogatory limit that allows plaintiffs no more than five additional interrogatories.
For the reasons set forth below, that motion is denied.
LEGAL STANDARDS
As a general rule, subparts are counted as a separate interrogatory if “the question in the
subpart can be answered independently of the ‘primary’ question.” Phillips v. Clark Cnty. Sch.
Dist., , No. 10-02068, 2012 WL 135705, at *6 (D Nev Jan. 18, 2012) (citation omitted). “[O]nce
a subpart of an interrogatory introduces a line of inquiry that is separate and distinct from the
inquiry made by the portion of the interrogatory that precedes it, the subpart must be considered
a separate interrogatory no matter how it is designated.” Thomas v. Yates, No. 05-01198, 2009
WL 3273280, at *2 (ED Cal Oct. 9, 2009) (quotation omitted). For example, an interrogatory
that asks for information and also asks for the identification of documents relating to that
information should be counted as two separate interrogatories. Kendall v. GES Exposition

2 – OPINION AND ORDER

Servs., Inc., 174 FRD 684, 686 (D Nev 1997); Banks v. Office of the Senate Sergeant–At–Arms,
222 FRD 7, 10 (D DC 2004) (“knowing that an event occurred is entirely different from learning
about documents that evidence it occurred”).
On the other hand, subparts are counted as a single interrogatory if “they are logically or
factually subsumed within and necessarily related to the primary question.” Safeco of Am. v.
Rawstron, 181 FRD 441, 445 (CD Cal 1998), quoting Kendall, 174 FRD at 685. Where subparts
“are simply designed to obtain additional details concerning the general theme presented in the
primary interrogatory question,” they are considered a single request. Estate of Manship v.
United States, 232 FRD 552, 554 (MD La 2005) (holding that subparts seeking “who, what,
when, where and how” information which relates to a common theme constitute a single
interrogatory), aff’d 2006 WL 594521 (MD La, Jan. 13, 2006); see also U.S. ex rel. Birckhead
Elec., Inc. v. James W. Ancel, Inc., No. WDQ-13- 2498, 2014 WL 7364461, at *3 (D Md
Dec. 23, 2014) (citing cases holding that “identification of persons with knowledge constitutes a
subpart of a single interrogatory”).
DISCUSSION
The parties agree that Interrogatories Nos. 2, 4, 9, and 11 should each be counted as two
interrogatories and that Interrogatories 10, 12, and 15 should each be counted as one
interrogatory, for a total of 11 separate interrogatories. That leaves Interrogatories Nos. 1, 3, 5-8,
and 14 in dispute.
Interrogatory No. 1 seeks information concerning the expert witnesses MIC intends to
call at trial or to support its opposition to class certification. That is the same information that
MIC is required to disclose in any event under FRCP 26(b)(2). Therefore, it can be disregarded
entirely or, at worst, counted as a single interrogatory.

3 – OPINION AND ORDER

Interrogatory No. 3 is a single interrogatory. It asks MIC to provide information
regarding the allegedly unlawful calls at issue in this lawsuit. The subparts seek to clarify the
scope of the information plaintiffs seek regarding the calls, namely the telephone number, date of
the call, identity of the person being called, the person(s) responsible for making the calls, the
manner in which the calls were placed (preview, manual, or autodialed), the campaign each call
was made for, and the “status” of the call, specifically whether it was answered by a person
rather than a voicemail or answering machine. The primary question of describing or identifying
the calls cannot be answered unless this information is provided. Thus, this interrogatory counts
as one.
MIC argues that Interrogatory No. 5 should be counted as three interrogatories. Plaintiffs
agree that subparts (a) and (b) may be counted as two interrogatories since they ask two
independent questions about MIC’s lead generation, including the identity of the sources of
telephone numbers and the manner in which the telephone number lists were compiled. That
leaves subpart (c) which asks MIC to identify the persons or entities who compiled the lists.
This court agrees with plaintiffs that subpart (c) is logically subsumed in subparts (a) and (b).
Thus, this interrogatory should be counted as two interrogatories.
MIC maintains that Interrogatory No. 6 should be counted as five interrogatories. It
requests all facts, witnesses and documents supporting MIC’s “prior express consent” defense.
To remove any ambiguity as to the types of facts they seek, plaintiffs ask for identification of
websites that MIC alleges class members used to “opt in” to receiving calls from MIC, the
vendors who obtained consent on MIC’s behalf, the exact wording of all such consents, the
identities of all persons who provided their prior express consent, and witnesses with knowledge
of such consent. This is merely a request for “who, what, when, where and how” information.

4 – OPINION AND ORDER

However, plaintiffs agree that the subpart requesting the identity of documents can be counted as
a separate interrogatory. Thus, the interrogatory should be counted as two interrogatories.
Interrogatory No. 7 also uses subparts to seek additional detail regarding MIC’s “prior
express consent” defense to plaintiffs’ National Do-Not-Call claim based on signed, written
agreements. Similar to Interrogatory No. 6, it seeks all facts demonstrating such consent,
including websites where the agreements may be found, the manner in which the agreements
were signed, the vendors who obtained the documents on MIC’s behalf, the exact wording of the
agreements, and witnesses with knowledge of the agreements. These subparts are factually and
logically related to a common theme. However, one subpart of this interrogatory seeks the
identity of every document “that supports or pertains to the existence of such agreements.” Since
it does not simply seek production of the signed written agreements themselves, but more
broadly seeks to identify all related documents, it must be counted as a separate interrogatory.
Thus, this interrogatory should be counted as two interrogatories.
Interrogatory No. 8 similarly uses subparts to seek all facts, witnesses and documents
supporting MIC’s established business relationship defense. It should be counted as two
interrogatories for the same reasons as Interrogatory No. 6.
The remaining interrogatory in dispute is Interrogatory No. 14 which asks MIC to
identify each “opt-in” outbound calling campaign, including the name, dates, numbers of
outbound calls made, sources of telephone numbers called, and whether and how the numbers
were scrubbed, and the identity of files produced by MIC that contain those numbers and related
information. Because MIC cannot completely respond to this central request without providing
all of the enumerated information, this request should count as a single interrogatory.

5 – OPINION AND ORDER

Therefore, by this court’s count, plaintiffs have propounded 21 (or 22 if including
Interrogatory No. 1), well-within the limits of FRCP 33(a)(1). Even if plaintiffs’ interrogatories
exceed 25, this court would grant leave to plaintiffs to serve additional interrogatories consistent
with FRCP 26(b)(2). Permitting the parties to exceed the limit pursuant to FRCP 33(a)(1) is
appropriate in this complex proposed class action case involving multiple parties, claims, and
affirmative defenses.
Plaintiffs seek an award of their attorney fees incurred to respond to MIC’s motions.
Pursuant to FRCP 37(a)(5), if a motion to compel discovery is denied, the court “must . . .
require the movant . . . to pay the party . . who opposed the motion its reasonable expenses
incurred in opposing the motion, including attorney fees” unless “the motion was substantially
justified or other circumstances make an award of expenses unjust.” This rule also applies to
motions for protective orders. FRCP 26(c)(3).
After MIC served its discovery responses, the parties conferred on January 20, 2015,
regarding the interrogatory issue. Murray Decl. (docket #100), Ex. 4. During that conference,
MIC’s counsel requested that plaintiffs send an email explaining the basis for their count, and
plaintiffs’ counsel advised that they were preparing a meet-and-confer letter regarding other
objections that MIC had lodged to their responses. Id, ¶ 7. That same day, plaintiffs’ counsel
emailed to MIC’s counsel the requested explanation for its count of 24 interrogatories. Id, Ex. 5,
pp. 2-3. The next morning, MIC’s counsel sent plaintiffs’ counsel an email cancelling the
parties’ follow-up telephone conference and stating: “Thank you for your email. We disagree
with plaintiffs’ total count. Because the parties cannot reach an agreement, we do not believe
another call would be productive. Accordingly, we will proceed with our motion.” Id, Ex. 5,
p. 1. Thirty minutes later, before plaintiffs’ counsel could respond to the email, MIC filed this

6 – OPINION AND ORDER

motion, attaching a six-page chart which had not previously been shared with plaintiffs’ counsel.
Id, Ex. 6. MIC clearly drafted the motion and chart before cancelling the call to further confer.
Plaintiffs characterize MIC’s motion as not substantially justified because it was filed
without first meaningfully conferring about the parties’ differing counting methodologies.
Nothing in FRCP 37(a)(5) requires conferral before filing a motion. Whether a motion is
substantially justified rests instead on its merit. MIC stated its method of counting in its
objections to plaintiffs’ interrogatories, and plaintiffs responded with an explanation of its
contrary method of counting. Given the lack of clear guidelines by this court regarding how to
count subparts under FRCP 33(a), both parties had substantial justification for their differing
positions.
The issue of conferral is governed by Local Rule 7-1(a)(1)(A) which requires “a good
faith effort through personal or telephone conferences to resolve the dispute.” Based on
plaintiffs’ email response (which agreed entirely or partially with MIC’s count as to
Interrogatories Nos. 2, 4, 5), MIC believed that further conferral would not lead to agreement.
Nonetheless, MIC did not comply with its obligation to meet and confer in a good faith attempt
to resolve the dispute before filing its motion. As plaintiffs correctly note, MIC’s own
interrogatories served on plaintiffs (Murray Decl., Ex. 8-10) exceed the numerical limit if MIC’s
methodology is applied fairly to them. Had plaintiffs been given an opportunity to make this
point to MIC, then MIC may have avoided taking an inconsistent position when objecting to
plaintiffs’ interrogatories. The sanction for violating Local Rule 7-1(a)(1)(A) is not to award
attorney fees to plaintiffs, but to deny the motion.
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7 – OPINION AND ORDER

ORDER
MIC’s Motion for Protective Order (docket #96) is DENIED, and MIC shall respond to
plaintiff’s remaining Interrogatories Nos. 8-12 and 14-15 in seven days. In addition, plaintiffs’
request for an award of attorney fees is DENIED.
DATED February 17, 2015.

s/ Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge

8 – OPINION AND ORDER