Pulchalski v. Franklin County
MEMORANDUM ORDER re: 35 MOTION to Compel Discovery, 36 MOTION for Protective Order. 1. The defendants motion for protective order,(Doc. 36.), IS GRANTED to the extent that the defendant need not further respondto the extant interrogatories. 2. The plaintiffs motion to compel, (Doc. 35.), is DENIED but we will grant the plaintiff leave to propound 12 additional discrete and specific interrogatories which comply with the provisions of Rule. Signed by Magistrate Judge Martin C. Carlson on January 5, 2017. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL NO. 15-CV-1365
(Magistrate Judge Carlson)
This is an employment discrimination action. The plaintiff initiated this
lawsuit by filing a complaint against Franklin County on June 13, 2015. (Doc. 1.)
In this complaint the plaintiff alleges that he was formerly employed at the
Franklin County Jail, and he claims that other employees at the jail discriminated
against him in violation of the Americans with Disabilities Act.
The parties are now embroiled in a discovery dispute, with the plaintiff
alleging that defendants have failed to provide required discovery in response to
the interrogatories served upon them, and the defendants insisting that the plaintiff
has issued excessive and improper discovery demands.
(Docs. 35 and 36.)
Specifically, the defendant contends that the plaintiff has exceeded the 25
interrogatory limit set by Rule 33 by filing a set of interrogatories which contain
numerous independent sub-parts, and then further compounding the compound
nature of the interrogatories by sub-dividing many of these sub-parts into multiple
An examination of the interrogatories reveals that there is merit to the
defendant’s concerns. While the plaintiff has listed only 13 interrogatories, the 13
interrogatories are broadly grouped around general subject matter headings. Of
these 13 interrogatories, 10 are then divided into numerous sub-parts which pose
discrete questions concerning each of the broad subject matter headings. Thus,
when the total number of sub-parts set forth in these 13 interrogatories are
separately counted, the total number of interrogatories and sub-parts approaches
some 39 queries. Furthermore, many of these interrogatories, or interrogatory subpart, in turn, are divided into numerous subsections. Indeed, by our count there
may be as many as 26 sub-sections contained within these interrogatories, or
Thus, the total number of separate, discrete factual
inquiries contained within the body of these interrogatories may be as many as 65
independent inquiries. Viewed in this light, the interrogatories are more akin to a
deposition on written questions.
Following an initial conference with counsel, and in order to address these
issues, we ordered that the parties’ submissions on this discovery dispute be
deemed to be a motion to compel, (Doc. 35.) and motion for protective order (Doc.
36.) respectively. We then instructed the parties to initially brief the question of
whether the discovery demands in this matter are excessive in that they violate the
discovery limitations prescribed by the Federal Rules of Civil Procedure. The
parties have complied with this direction, fully briefing their positions on this
matter. Accordingly, these motions are ripe for resolution.
For the reasons set forth below, we will grant the defendant’s motion for
protective order, and will not require the defendant to respond to these excessive
interrogatories beyond the responses which the defendant initially provided.
However, recognizing that our after-the-fact assessment of whether the manner in
which these interrogatories were structured violated the limitations prescribed by
the Federal Rules of Civil Procedure may hobble the plaintiff in preparing his case,
we will allow the plaintiff leave to propound 12 additional, narrowly tailored
Several basic guiding principles inform our resolution of the instant
discovery dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure
governs motions to compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or
(1) In General. On notice to other parties and all affected
persons, a party may move for an order compelling
disclosure or discovery. . . .
Fed. R. Civ. P. 37(a).
The scope of what type of discovery may be compelled under Rule 37 is
defined, in turn, by Rule 26 of the Federal Rules of Civil Procedure. Fed. R. Civ.
P., Rule 26(b)(1), which provides that:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Fed. R. Civ. P., Rule 26(b)(1).
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding Rule 37 motions
are “committed to the sound discretion of the district court.” DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to
the scope of discovery permitted under Rule 26 also rest in the sound discretion of
the Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).
Therefore, a court’s decisions regarding the conduct of discovery, and whether to
compel disclosure of certain information, will be disturbed only upon a showing of
an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir.
1983). This far-reaching discretion extends to rulings by United States Magistrate
Judges on discovery matters. In this regard:
District courts provide magistrate judges with
particularly broad discretion in resolving discovery
disputes. See Farmers & Merchs. Nat'l Bank v. San
Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
When a magistrate judge's decision
involves a discretionary [discovery] matter . . . , “courts
in this district have determined that the clearly erroneous
standard implicitly becomes an abuse of discretion
standard.” Saldi v. Paul Revere Life Ins. Co., 224 F.R.D.
169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United
States, 943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that
standard, a magistrate judge's discovery ruling “is
entitled to great deference and is reversible only for
abuse of discretion.” Kresefky v. Panasonic Commc'ns
and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also
Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42,
44-45 (N.D.N.Y.1999) (holding that discovery rulings
are reviewed under abuse of discretion standard rather
than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a
magistrate judge's resolution of discovery disputes
deserves substantial deference and should be reversed
only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17,
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26's broad definition of that which can be obtained
through discovery reaches nonprivileged matter that is relevant to any party’s
claim or defense. Therefore, valid claims of relevance and privilege still cabin and
restrict the court’s discretion in ruling on discovery issues. Furthermore, the scope
of discovery permitted by Rule 26 embraces all relevant information a concept
which is not confined to admissible evidence but is also defined in the following
terms: “Information within this scope of discovery need not be admissible in
evidence to be discoverable.” Rather, “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party's claim or defense.”
The Federal Rules of Civil Procedure also set numerical limits on the
number of discovery demands which a party may propound. In this regard, Rule
33(a)(1) of the Federal Rules of Civil Procedure, which governs interrogatories to
parties, expressly provides that: “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.” Fed. R. Civ. P. Rule 33(a)(1)(emphasis added).
Over the past years, much ink has been spilled addressing the question of how
interrogatory sections and subparts should be counted. In this regard, the positions
of the parties are proponents or opponents of particular interrogatories often color
their views regarding whether an interrogatory consists of a single, albeit extended,
question, or multiple subparts each of which is independently counted in
determining whether Rule 33's limits have been met or exceeded. On this score, as
the courts have observed: “Identifying a ‘discrete subpart’ has proven difficult.”
Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004). In
addressing this question: “[T]he courts have . . . attempted to formulate more
conceptual approaches, asking whether one question is subsumed and related to
another or whether each question can stand alone and be answered irrespective of
the answer to the others. Kendall v. GES Exposition Services, 174 F.R.D. 684
(D.Nev.1997). But, . . . , this is anything but a bright-line test. Safeco of America
v. Rawstron, 181 F.R.D. 441, 445 (C.D.Cal.1998).” Banks v. Office of Senate
Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004).
In addressing this question, we begin as many other courts have in the past,
by considering the Advisory Committee Notes to Rule 33 which explains that:
Interrogatories often contain subparts. Some are explicit
and separately numbered or lettered, while others are
implicit and not separately numbered or lettered.
Extensive use of subparts, whether explicit or implicit,
could defeat the purposes of the numerical limit
contained in Rule 33(a), or in a scheduling order, by
rendering it meaningless unless each subpart counts as a
separate interrogatory. On the other hand, if all subparts
count as separate interrogatories, the use of
interrogatories might be unduly restricted or requests for
increases in the numerical limit might become automatic.
The Advisory Committee addressed this issue and
provided some guidance as to when subparts should and
should not count as separate interrogatories:
Each party is allowed to serve 25 interrogatories upon
any other party, but must secure leave of court (or
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
Advisory Committee Note, 146 F.R.D. 401, 675–676 (Fed.1993.).
Nyfield v. Virgin Islands Tel. Corp., 200 F.R.D. 246, 247 (D.V.I. 2001).
Adopting this approach, we note that we are urged to “use rules of
reasonability and fairness in compressing subparts to count against [Rule 33's 25
In this regard, “the best test of whether questions
with[in] a single interrogatory are subsumed or 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?” Id. Put another way, “[a]
subpart is discrete and regarded as a separate interrogatory when it is logically or
factually independent of the question posed by the basic interrogatory. See Safeco
of Am. v. Rawstron, 181 F.R.D. 441, 444–45 (C.D.Cal.1998); Kendall v. GES
Exposition Servs., Inc., 174 F.R.D. 684, 685–87 (D.Nev.1997).”
Holding Corp. v. RJG Holdings of Florida, Inc., No. CIV. 3:02CV173 (PCD),
2003 WL 22305141, at *1 (D. Conn. Feb. 6, 2003). Thus, an evacuation of
whether various queries constitute separate interrogatories for purposes of
assessing the limits set by Rule 33 often entails, “ including subparts and subsubparts that are often logically and/or factually independent of the question posed
by the basic interrogatory.” Knit With v. Knitting Fever, Inc., No. CV 08-4221,
2010 WL 11474937, at *1 (E.D. Pa. Jan. 22, 2010).
Applying this guidance, and mindful of the fact that “this is anything but a
bright-line test,” Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10
(D.D.C. 2004), we find that the interrogatories propounded by the plaintiff exceed
the 25 interrogatory limit set by Rule 33(a)(1). In particular, we note that a number
of these interrogatories are framed in multiple sub-parts asking a series of discrete
inquiries about multiple events, spanning several years. See Interrogatories 3, 4
Other interrogatories pose a series of discrete and specific questions
regarding Pulchaski’s past pay, projected future earnings, commissions, bonuses
and retirement benefits. Interrogatory 6. Still other interrogatories pose multiple
sub-part inquiries into what are potentially a host of hiring, consultant and
independent contractor decisions made at the prison in the months preceding and
following Pulchaski’s termination.
interrogatories are framed in multiple subparts and seek numerous discrete
categories of information concerning prison staff disciplinary actions ranging over
a 5 year period. Interrogatory 8. While these interrogatories may share certain
broad thematic thrusts, we find that the questions nestled within each of these
interrogatories are logically or factually independent of one another, and, therefore,
should count as independent interrogatories under Rule 33.
interrogatories construed in this way, we believe that the defendant has properly
objected to the interrogatories, as they are framed, and will sustain their objections
to those interrogatories.
We are, however, cognizant of the fact that the analytical approach taken by
courts in this field “is anything but a bright-line test.” Banks v. Office of Senate
Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004)
Therefore, in framing an
appropriate resolution to this particular discovery dispute, we must set a course
which avoids unfair prejudice either to the defendant, who has faced what we find
to be excessive inquiries, or the plaintiff, who did not have the benefit of this ruling
when drafting interrogatories, and, therefore, might have taken a more focused
approach to these interrogatories had he known that the interrogatories which he
had numbered at 13, might later be construed to include as many as 65 separate
inquiries. In the past, when courts have been presented with similar dilemmas, one
solution has been to sustain objections to the interrogatories, as posed, but grant the
party propounding what are later found to be prolix interrogatories leave to
propound some limited number of additional discrete and specific interrogatories.
See Nyfield v. Virgin Islands Tel. Corp., 200 F.R.D. 246, 247 (D.V.I. 2001).
This is the path we will follow in the instant case. We will grant the
defendant’s motion for protective order, and direct that the defendant need not
further respond to the extant interrogatories. We will deny the plaintiff’s motion to
compel, but will grant the plaintiff leave to propound 12 additional discrete and
specific interrogatories which comply with the provisions of Rule 33.1
An appropriate order follows.
IT IS ORDERED as follows:
The defendant’s motion for protective order,(Doc. 36.), IS
GRANTED to the extent that the defendant need not further respond
to the extant interrogatories.
The plaintiff’s motion to compel, (Doc. 35.), is DENIED but we will
grant the plaintiff leave to propound 12 additional discrete and
specific interrogatories which comply with the provisions of Rule.
The plaintiff shall tender these interrogatories to the defendant within
21 days, and the parties shall then comply with the provisions of Rule
33 in responding to, or objecting to, specific interrogatories. Given
By sustaining the defendant’s objection to the 13 interrogatories posed by the
plaintiff, finding that the interrogatories were in some instances excessive
compound questions, but granting the plaintiff leave to submit 12 additional
narrowly tailored interrogatories we also pay fidelity to Rule 33(a)(1)’s admonition
that the total number of interrogatories propounded by a party may not exceed 25.
this ruling, the parties’ arguments regarding substantive objections to
the prior interrogatories are deemed moot, but the Court stands ready
to address any substantive objections lodged by the parties with
respect to any of the 12 supplemental interrogatories authorized by
So ordered this 5th day of January, 2017.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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