State Automobile Mutual Insurance Company v. Freehold Management, Inc. et al
Filing
118
Memorandum Opinion and Order GRANTS in part and DENIES in part and DEFERS RULING in part on 83 MOTION to Compel Response to Interrogatories. (Ordered by Magistrate Judge David L Horan on 7/24/2018) (epm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STATE AUTOMOBILE MUTUAL
INSURANCE COMPANY,
§
§
§
Plaintiff,
§
§
V.
§
§
FREEHOLD MANAGEMENT, INC. and §
RETAIL PLAZAS, INC.,
§
§
Defendants.
§
§
V.
§
§
FREEHOLD MANAGEMENT, INC.;
§
RETAIL PLAZAS, INC.; and RPI
§
DENTON CENTER, LTD.,
§
§
Counter-Plaintiffs.
§
No. 3:16-cv-2255-L
MEMORANDUM OPINION AND ORDER
Defendants/Counter-Plaintiffs Freehold Management, Inc. and Retail Plazas,
Inc. and Counter-Plaintiff RPI Denton Center, Ltd. (collectively, for ease of discussion,
“Defendants”) have filed a Motion to Compel Plaintiff’s Responses to Freehold’s
Interrogatories, see Dkt. No. 83 (the “MTC”), seeking an order to compel Plaintiff State
Automobile Mutual Insurance Company (“State Auto” or “Plaintiff”) to provide
complete answers to Defendants’ Interrogatory Nos. 1, 8, and 9.
United States District Judge Sam A. Lindsay has referred the MTC to the
undersigned United States magistrate judge for a hearing, if necessary, and
determination under 28 U.S.C. § 636(b). See Dkt. No. 86.
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State Auto filed a response, see Dkt. No. 98, and Defendants filed a reply,
see Dkt. No. 104.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part and DEFERS RULING in part on Defendants’ Motion to Compel
Plaintiff’s Responses to Freehold’s Interrogatories [Dkt. No. 83].
Background
The pertinent factual background and procedural background is familiar to the
parties and will not be recounted here except as necessary in the Court’s analysis and
conclusions below. In brief, as the parties explained in their Joint Status Report of the
Rule 26(f) Meeting and Joint Proposed Discovery/case Management Plan – after the
filing of which the parties have since filed amended live pleadings –
[t]his case arises out of a disputed insurance claim relating to an April 3,
2014, storm that allegedly caused wind and hail damage to the
Defendant/Counter-Plaintiffs property located at 500-1900 W. University,
Denton, Texas 76201. State Auto provided an insurance policy PBP
2603242 02 to Freehold Management, Inc. c/o Retail Plazas, Inc., with a
policy period of September 30, 2013 to September 30, 2014.
Defendants filed a claim for damages with State Auto alleging
damages sustained in the Storm under the above-referenced policy. At a
May 19, 2015, meeting. Plaintiff alleges that an agreement as to the cost
of repairs was reached-$1, 260, 707.54 with an Actual Cash Value of
$1,065,861.32. Initial payments were made totaling $828,096.30.
Subsequently, Defendants collected recoverable depreciation for repairs
to some of the buildings. In total. State Auto has paid $1,036,397.17.
Plaintiff filed for a declaratory judgment asking the court to
declare that all covered damages have been paid, that the alleged damage
were not caused by a covered cause of loss, that the policy excludes,
limits, or precludes coverage for the additional damages claimed and from
recovery of depreciation and/or replacement cost.
Defendants/Counter-Plaintiffs
allege
that
Plaintiff/Counter-Defendant State Auto breached the insurance contract,
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violated Chapter 542 of the Texas Insurance Code, violated the Texas
DTPA, engaged in unfair insurance practices under Chapter 541 of the
Texas Insurance Code, breached the duty of good faith and fair dealing,
and did so knowingly and intentionally by hiring a biased engineer,
failing to pay for all covered damages, and failed to conduct a reasonable
investigation. Defendant/Counter-Plaintiff seeks $899,349.22 and repair
to the Kroger roof and coping, and the additional costs to repair the
Denton Center roofs above Suites 514 through 824 and above Suites 502,
602, 828, 908, 916 and 1038.
Dkt. No. 10 at 2-3.
Legal Standards
The Federal Rules of Civil Procedure control the scope of a proper discovery
request in the form of requests for production or inspection, interrogatories, and
requests for admission.
Under Rule 26(b)(1), “[u]nless otherwise limited by court order, ... [p]arties 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. 26(b)(1); accord Booth v. City
of Dallas, 312 F.R.D. 427, 433 (N.D. Tex. 2015).
The 2015 amendments to Rule 26 deleted “from the definition of relevance
information that appears ‘reasonably calculated to lead to the discovery of admissible
evidence’ because ‘[t]he phrase has been used by some, incorrectly, to define the scope
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of discovery’ and ‘has continued to create problems’ given its ability to ‘swallow any
other limitation on the scope of discovery.’” Robroy Indus.-Tex., LLC v. Thomas & Betts
Corp., No. 2:15-CV-512-WCB, 2017 WL 319064, at *4 (E.D. Tex. Jan. 23, 2017) (quoting
FED. R. CIV. P. 26, 2015 comm. note).
“Under Rule 26(b)(1), [as amended,] discoverable matter must be both relevant
and proportional to the needs of the case – which are related but distinct
requirements.” Samsung Electronics Am., Inc. v. Chung, 321 F.R.D. 250, 279 (N.D. Tex.
2017). “To be relevant under Rule 26(b)(1), a document or information need not, by
itself, prove or disprove a claim or defense or have strong probative force or value. If
it were otherwise, it would make little sense for Rule 26(b)(1) to direct courts to
consider whether discovery that is relevant to any party’s claim or defense is also
important in resolving the issues.” Id. at 280.
Federal Rule of Civil Procedure 37(a) governs motions to compel discovery
responses. Rule 37(a)(3)(B) provides that a party seeking discovery may move for an
order compelling production or answers against another party when the latter has
failed to answer interrogatories under Federal Rule of Civil Procedure 33. See FED. R.
CIV. P. 37(a)(3)(B)(iii); accord Crosswhite v. Lexington Ins. Co., 321 F. App’x 365, 368
(5th Cir. 2009) (“A party may move to compel production of materials that are within
the scope of discovery and have been requested but not received. FED. R. CIV. P. 37(a).
Yet, a court may decline to compel, and, at its option or on motion, ‘may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden ..., including ... forbidding inquiry into certain matters,
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or limiting the scope of disclosure or discovery to certain matters.’ FED. R. CIV. P.
26(c)(1)(D); see also FED. R. CIV. P. 37(a)(5)(B).”). For purposes of Rule 37(a), “an
evasive or incomplete disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4).
Federal Rule of Civil Procedure 33(a)(2) provides that “[a]n interrogatory may
relate to any matter that may be inquired into under Rule 26(b).” FED. R. CIV. P.
33(a)(2). “Generally, an interrogatory may relate to any non-privileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.”
Pilver v. Hillsborough Cty., No. 8:15-CV-2327-T-23JSS, 2016 WL 4129282, at *3 (M.D.
Fla. Aug. 3, 2016).
In response to interrogatories under Rule 33, “[t]he interrogatories must be
answered: (A) by the party to whom they are directed; or (B) if that party is a public
or private corporation, a partnership, an association, or a governmental agency, by any
officer or agent, who must furnish the information available to the party.” FED. R. CIV.
P. 33(b)(1).
“Each interrogatory must, to the extent it is not objected to, be answered
separately and fully in writing under oath,” and “[t]he grounds for objecting to an
interrogatory must be stated with specificity.” FED. R. CIV. P. 33(b)(3)-(4). General or
boilerplate objections are invalid, and “[o]bjections to discovery must be made with
specificity, and the responding party has the obligation to explain and support its
objections.” OrchestrateHR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex.
2016) (citing Heller v. City of Dallas, 303 F.R.D. 466, 483 (N.D. Tex. 2014); quoting
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FED. R. CIV. P. 34(b)(2)(C)), objections overruled, No. 3:13-cv-2110-KS, 2016 WL
5942223 (N.D. Tex. Oct. 13, 2016). In sum, “[a] party served with written discovery
must fully answer each interrogatory ... to the full extent that it is not objectionable
and affirmatively explain what portion of an interrogatory ... is objectionable and why,
affirmatively explain what portion of the interrogatory ... is not objectionable and the
subject of the answer..., and affirmatively explain whether any responsive information
or documents have been withheld.” Heller, 303 F.R.D. at 485.
Federal Rule of Civil Procedure 33(d) further provides that, “[i]f the answer to
an interrogatory 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 party, 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 party could; and (2) giving the interrogating
party a reasonable opportunity to examine and audit the records and to make copies,
compilations, abstracts, or summaries.” FED. R. CIV. P. 33(d). “Thus, in relying on Rule
33(d) in an interrogatory answer, [an answering party] must specify the information
that [the requesting party] should review in sufficient detail to enable [the requesting
party] to locate and identify the information in the documents [at least] as readily as
[an answering party] could.” McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins.
Co., No. 3:14-cv-2498-B, 2016 WL 2997744, at *9 (N.D. Tex. May 25, 2016). This
generally requires an answering party “to point to specific documents, by name or
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bates number,” and not pointing the requesting party generally to document
productions. Id. at *10.
As to the sufficiency of an interrogatory answer,
as the Fifth Circuit has observed, “[d]iscovery by interrogatory requires
candor in responding.... The candor required is a candid statement of the
information sought or of the fact that objection is made to furnishing the
information. A partial answer by a party reserving an undisclosed
objection to answering fully is not candid. It is evasive.” Dollar v. Long
Mfg., N.C., Inc., 561 F.2d 613, 616-17 (5th Cir. 1977). The fact that an
interrogatory calls for a thorough response – one that will take time and
effort to answer – does not make it improper. See Burns v. Thiokol Chem.
Corp., 483 F.2d 300, 307-08 (5th Cir. 1973). Where an interrogatory
answer “‘as a whole disclose[s] a conscientious endeavor to understand
the question[] and to answer fully [that question],’” a party’s obligation
under Rule 33 is satisfied. Meltzer/Austin Rest. Corp. v. Benihana Nat’l.
Corp., No. A-11-cv-542-LY, 2013 WL 2607589, at *3 (W.D. Tex. June 10,
2013) (quoting 8B WRIGHT, MILLER & MARCUS, FED. PRAC. & PROC. § 2177
(3d ed. 2010)). [An answering party] is not required to make an extensive
investigation in responding to an interrogatory, but he must pull together
a verified answer by reviewing all sources of responsive information
reasonably available to him and providing the responsive, relevant facts
reasonably available to him. See 8B WRIGHT, MILLER & MARCUS, FED.
PRAC. & PROC. § 2174 (3d ed. 2013).
Areizaga v. ADW Corp., 314 F.R.D. 428, 437 (N.D. Tex. 2016).
The party resisting discovery must show specifically how each discovery request
is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990); accord Innova Hosp. San Antonio, Ltd.
P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 729 n.9 (5th Cir. 2018)
(“While the Hospital did not file a motion to compel, this perhaps unadvised choice is
not dispositive. ‘Counsel have an obligation, as officers of the court, to assist in the
discovery process by making diligent, good-faith responses to legitimate discovery
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requests.’ McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86
(5th Cir. 1990) (rejecting a party’s contention that sanctions could not be imposed when
the opposing party had not first requested an order to compel and stating that the
party resisting discovery requests ‘must have a valid objection to each one in order to
escape the production requirement’).”).
A party resisting discovery must show how the requested discovery is overly
broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence
revealing the nature of the burden. See Merrill v. Waffle House, Inc., 227 F.R.D. 475,
477 (N.D. Tex. 2005); see also S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“A
party asserting undue burden typically must present an affidavit or other evidentiary
proof of the time or expense involved in responding to the discovery request.”). “Failing
to do so, as a general matter, makes such an unsupported objection nothing more than
unsustainable boilerplate.” Heller, 303 F.R.D. at 490.
And the Court has previously explained that “responding to interrogatories ...
‘subject to’ and/or ‘without waiving’ objections is manifestly confusing (at best) and
misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure”;
“this manner of responding to ... [an] interrogatory leaves the requesting party
guessing and wondering as to the scope of the documents or information that will be
provided as responsive will be”; “outside of the privilege and work product context...,
responding to ... [an] interrogatory ‘subject to’ and ‘without waiving’ objections is not
consistent with the Federal Rules or warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for establishing new
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law”; “a responding party has a duty to respond to or answer a discovery request to the
extent that it is not objectionable” and “must describe what portions of the
interrogatory ... it is, and what portions it is not, answering or responding to based on
its objections and why”; “if the request is truly objectionable – that is, the information
or documents sought are not properly discoverable under the Federal Rules – the
responding party should stand on an objection so far as it goes”; and, “as a general
matter, if an objection does not preclude or prevent a response or answer, at least in
part, the objection is improper and should not be made.” Carr v. State Farm Mut. Auto.
Ins. Co., 312 F.R.D. 459, 470 (N.D. Tex. 2015) (quoting Heller, 303 F.R.D. at 487-88
(internal quotation marks omitted)). “To make such an objection in the face of these
considerations is to engage in the ‘abusive practice of objecting to discovery requests
reflexively – but not reflectively – and without a factual [or legal] basis’ that [Federal
Rule of Civil Procedure] 26(g) was enacted to stop.” Heller, 303 F.R.D. at 487 (quoting
Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008)). Serving
unsupported and boilerplate or stock objections do not preserve or accomplish anything
other than waiver and subjecting the responding party to sanctions, and “Rule 26(g)
‘and its commentary are starkly clear: an objection to requested discovery may not be
made until after a lawyer has paused and consider[ed] whether, based on a reasonable
inquiry, there is a factual [or legal] basis [for the] ... objection.’” Heller, 303 F.R.D. at
477 (quoting Mancia, 253 F.R.D. at 358; internal quotation marks omitted).
Once responses, answers, and objections have been served subject to Rule 26(g),
the party who has objected to a discovery request then must, in response to a Rule
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37(a) motion to compel or in support of its own Rule 26(c) motion for a protective order,
urge and argue in support of its objection to an interrogatory or request, and, if it does
not, it waives the objection. See OrchestrateHR, 178 F. Supp. 3d at 507 (citing Dolquist
v. Heartland Presbytery, 221 F.R.D. 564, 568 (D. Kan. 2004); Cotracom Commodity
Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999)).
Federal Rule of Civil Procedure 26(b) has been amended, effective December 1,
2015. For the reasons the Court has previously explained, the amendments to Rule 26
do not alter the burdens imposed on the party resisting discovery discussed above. See
Carr, 312 F.R.D. at 463-69.
Rather, just as was the case before the December 1, 2015 amendments, under
Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can – and must – limit proposed discovery
that it determines is not 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 – and the court must do so even in the absence
of a motion. See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir.
2011).
Thus, as amended, Rule 26(b)(2)(C) provides that, “[o]n motion or on its own, the
court must limit the frequency or extent of discovery otherwise allowed by these rules
or by local rule if it determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other source that is more
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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
proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P.
26(b)(2)(C).
And, as the Court has more recently explained,
under Fifth Circuit law, the party resisting discovery must show
specifically how each discovery request is not relevant or otherwise
objectionable. That is true on a Rule 37(a) motion to compel no less than
on a [Federal Rule of Civil Procedure] 26(c) motion for a protective order.
....
Rule 26(g)(1) does not impose on a party filing a motion to compel
the burden to show relevance and proportionality in the first instance.
.... [And] Rule 26(b)(1) “‘does not place on the party seeking discovery the
burden of addressing all proportionality considerations.’” Carr, 312 F.R.D.
at 467 (quoting FED. R. CIV. P. 26, 2015 comm. note). While it is a good
practice for a movant to explain the relevance and proportionality of its
discovery requests, and while a failure to appropriately address Rule
26(b)(1) proportionality factors may be determinative in a proportionality
analysis and result in the motion to compel being denied on its merits, see
id. at 463-69, “‘[t]he parties and the court have a collective responsibility
to consider the proportionality of all discovery and consider it in resolving
discovery disputes,” id. at 467 (quoting FED. R. CIV. P. 26, 2015 comm.
note).
Samsung Elecs. Am. Inc. v. Chung, ___ F.R.D. ___, No. 3:15-cv-4108-D, 2017 WL
896897, at *13 (N.D. Tex. Mar. 7, 2017) (citations omitted); accord Charalambopoulos
v. Grammar, No. 3:14-cv-2424-D, 2017 WL 1094394, at *4 n.5 (N.D. Tex. Mar. 8, 2017).
Thus, a party seeking to resist discovery on Rule 26(b)(1) and Rule
26(b)(2)(C)(iii) grounds still bears the burden of making a specific objection and
showing that any discovery request that is relevant to any party’s claim or defense fails
the proportionality calculation mandated by Rule 26(b) by coming forward with specific
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information to address – insofar as that information is available to it – 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. Accord First Am. Bankcard, Inc. v. Smart Bus. Tech., Inc.,
No. CV 15-638, 2017 WL 2267149, at *1 (E.D. La. May 24, 2017) (“In this instance,
defendant has offered nothing more than a boilerplate proportionality objection,
without providing any information concerning burden or expense that the court would
expect to be within defendant’s own knowledge.”).
The party seeking discovery, as noted above, may well – to prevail on a motion
to compel – need to make its own showing of many or all of the proportionality factors,
including the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources,
and the importance of the discovery in resolving the issues, in opposition to the
resisting party’s showing. And, as the Court has explained, the party seeking discovery
is required in the first instance to comply with Rule 26(b)(1)’s proportionality limits on
discovery requests; is subject to Federal Rule of Civil Procedure 26(g)(1)’s requirement
to certify “that to the best of the person’s knowledge, information, and belief formed
after a reasonable inquiry: ... (B) with respect to a discovery request..., it is: (i)
consistent with these rules and warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law, or for establishing new
law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary
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delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor
unduly burdensome or expensive, considering the needs of the case, prior discovery in
the case, the amount in controversy, and the importance of the issues at stake in the
action”; and faces Rule 26(g)(3) sanctions “[i]f a certification violates this rule without
substantial justification.” FED. R. CIV. P. 26(g)(1)(B), 26(g)(3); see generally Heller, 303
F.R.D. at 475-77, 493-95. And it is no answer for attorneys’ serving blockbuster
interrogatory or all-encompassing or broad and undirected requests for production to
say that they are not certain what the responding or answering party has in its
possession, custody, or control and do not want to miss anything – and so will ask for,
effectively, everything. Requests and interrogatories must be made in compliance with
the Federal Rules and, if further discovery or investigation later reveals the existence
or possible existence of additional relevant materials or information with Rule
26(b)(1)’s scope, counsel can serve additional discovery requests and, if necessary, seek
leave to do so.
But the amendments to Rule 26(b) do not alter the basic allocation of the burden
on the party resisting discovery to – in order to successfully resist a motion to compel
– specifically object and show that the requested discovery does not fall within Rule
26(b)(1)’s scope of relevance (as now amended) or fails the required proportionality
calculation or is otherwise objectionable. See McLeod, 894 F.2d at 1485; Heller, 303
F.R.D. at 483-93.
Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel
is granted, or if the requested discovery is provided after the motion was filed, “the
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court must, after giving an opportunity to be heard, require the party ... whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s
fees,” except that “the court must not order this payment if: (i) the movant filed the
motion before attempting in good faith to obtain the disclosure or discovery without
court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.”
FED. R. CIV. P. 37(a)(5)(A); accord Washington v. M. Hanna Const. Inc., 299 F. App’x
399, 402 (5th Cir. 2008).
Federal Rules of Civil Procedure 37(a)(5)(B) and 37(a)(5)(C) further provide in
pertinent part that, “[i]f the motion is denied, the court may issue any protective order
authorized under Rule 26(c) and must, after giving an opportunity to be heard, require
the movant, the attorney filing the motion, or both to pay the party ... who opposed the
motion its reasonable expenses incurred in opposing the motion, including attorney’s
fees,” “[b]ut the court must not order this payment if the motion was substantially
justified or other circumstances make an award of expenses unjust,” and that, “[i]f the
motion is granted in part and denied in part, the court may issue any protective order
authorized under Rule 26(c) and may, after giving an opportunity to be heard,
apportion the reasonable expenses for the motion.” FED. R. CIV. P. 37(a)(5)(B)-(C);
accord De Angelis v. City of El Paso, 265 F. App’x 390, 398 (5th Cir. 2008).
“[A] motion is ‘substantially justified’ if there is a genuine dispute, or if
reasonable people could differ as to [the appropriateness of the contested action].” De
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Angelis, 265 F. App’x at 398 (internal quotation marks omitted); see also Heller, 303
F.R.D. at 477 (“The United States Supreme Court has defined ‘substantially justified’
to mean ‘justified in substance or in the main – that is, justified to a degree that could
satisfy a reasonable person.’ ‘Substantial justification’ entails a ‘reasonable basis in
both law and fact,’ such that ‘there is a genuine dispute ... or if reasonable people could
differ [as to the appropriateness of the contested action].’” (citations omitted)).
Analysis
I.
Defendants’ Interrogatory No. 1
Defendants ask the Court to order State Auto to serve a complete answer to the
following interrogatory (to which State Auto’s objections and answer are listed below):
INTERROGATORY NO. 1: State the name, address and telephone number of
all persons who will testify at trial for Plaintiff/Counter-Defendant.
ANSWER: Plaintiff/Counter-Defendant objects to the extent this request
invades the work product privilege. Furthermore, Plaintiff/Counter-Defendant
refers Defendant/Counter-Plaintiff to its Rule 26 Disclosures, Rule 26(b) expert
disclosures, and will provide the names of those likely to testify and those that
may testify in compliance with the Court’s Order and the Federal Rules of Civil
Procedure deadlines to designate the same. Plaintiff/Counter-Defendant refers
Defendant/Counter-Plaintiff to all pleadings, discovery, disclosures, and
documents obtained by subpoena, through discovery, or otherwise exchanged in
this case for persons that may testify at trial.
Defendants contend that, “[t]hroughout the pendency of this case, [State Auto]
has been non-committal in responding to what employees and representatives of State
Auto were involved in this claim, had discoverable information, or would testify at
trial.” Dkt. No. 83 at 2. According to Defendants, “[d]uring the discovery period in this
case, Freehold deposed four employees of State Auto – Sherri King, Jacob Webster,
Paul Douglas, and Mark Chenetski – but State Auto has not identified which, if any
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of them, will testify on behalf of State Auto at trial” and “also has not identified if there
are any other representatives who were involved in the claim and/or will testify at
trial.” Id.
And, as to State Auto’s objections to Interrogatory No. 1 specifically, Defendants
assert that State Auto’s “response is inadequate because it fails to even attempt to
answer the question.” Id. at 8. Defendants argue that State Auto’s “objection is invalid
as [Defendants are] entitled to know the identity of the Plaintiff’s witnesses at trial
and the identity of the witnesses is not protected as work product” and because “[j]ust
because the Court has not yet ordered the production of a witness list, does not mean
that State Auto does not have to respond.” Id. (footnote and citation omitted). And,
Defendants contend, “State Auto’s identification of practically every document
produced or created by State Auto in this litigation is impermissibly vague” and does
not comply with Rule 33(d)’s requirements, as summarized above. Id.
State Auto responds that it “has repeatedly provided Defendants the names of
those individuals who possessed the most knowledge about the facts and circumstances
leading up to the lawsuit, participated in the decision to deny Defendants’ claim, and
who may testify at trial.” Dkt. No. 98 at 2. State Auto explains that, “[t]o date, Plaintiff
has disclosed the identities of all persons expected to testify at trial” in its Second
Supplemental Rule 26(a)(1)(A) Initial Disclosures “designating State Auto’s ‘agents,
adjusters, representatives, including but not limited to Sherri King, Jacob Webster,
Paul Douglas, and Mark Chenetski’” – all of whom have been deposed in this case. Id.
at 4-5. State Auto also notes the retained experts that it has designated in its Rule
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26(a)(2) Expert Disclosures. See id. at 5. State Auto points out that, under “the Court’s
Fifth Amended Scheduling Order, Plaintiff’s ‘list of witnesses who may be called’ is not
due until January 7, 2019,” and State Auto avers that, “[a]t this time, Plaintiff cannot
say with absolute certainty that no additional witnesses will be called” but that, “[t]o
the extent additional, unidentified State Auto representatives will be called to testify
at trial, these witnesses will be called solely in response to testimony elicited from
Defendants’ witnesses, which cannot be ascertained at this time.” Id. (emphasis
omitted).
Defendants reply that State Auto waived any objections to this interrogatory by
failing to assert them in response to the MTC and, instead, “merely claim[ing] it had
already disclosed the identity of all persons expected to testify at trial.” Dkt. No. 104
at 2. But, Defendants complain, State Auto’s reliance on its disclosures “is problematic”
because its Second Supplemental Rule 26(a)(1)(A) Initial Disclosures “are open-ended.”
Id. Defendants notes that, “[i]n its response to the [MTC], Plaintiff listed 11 individuals
as having been disclosed” and that, “[i]f Plaintiff had amended its interrogatory
answers with this response, it might have been sufficient.” Id. at 2-3. But Defendants
argue that, where State Auto “has refused to amend its formal responses and its initial
response is inadequate” for the reasons that Defendants asserted in their MTC,” and
where “the documents [State Auto] contends identify witnesses, such as the
supplemental disclosures and the claims notes are open-ended and/or redacted,” the
Court should compel State Auto to serve a complete answer to Interrogatory No. 1.
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Resolving the MTC as to this interrogatory comes down in part to timing, but
only in part. State Auto did not adequately explain what it meant in “object[ing] to the
extent this request invades the work product privilege” and then did not press any
work product claim at all in responding to the MTC. Any work product basis for
refusing to answer is waived.
Further, State Auto’s pointing to what amounts to the entire universe of
information “exchanged in this case for persons that may testify at trial” does not
comply with Rule 33(d). Defendants cannot know at least as readily as State Auto
could whom State Auto considers to be a possible trial witness or who not from
documents that are not addressed to that litigation-specific question. And State Auto’s
pointing Defendants to documents for Defendants to themselves identify “persons that
may testify at trial” and tries to answer a different question than the one that
Interrogatory No. 1 asks – which is “who will testify at trial” for State Auto.
As Defendants acknowledge, State Auto’s pointing to its Rule 26 disclosures
provides some responsive information – but only retroactively through its Second
Supplemental Rule 26(a)(2) Initial Disclosures served almost five months after State
Auto’s interrogatory answer. But even that supplemental disclosure is couched in
terms of State Auto’s “agents, adjusters, representatives, including but not limited to”
the four named individuals.
Whether to require State Auto to provide a more definitive answer now, then,
is a question of timing and of entitlement – turning on whether Defendants are entitled
to a closed list of “all persons who will testify at trial for” State Auto at this point in
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time, almost six months before the Court’s deadline by which “[e]ach party must file
a list of witnesses who may be called by each party in its case in chief.” Dkt. No. 92 at
5.
Judges in this district have taken the answering party’s side on this question.
See, e.g., Martin v. County of Dallas, No. 3:10-cv-260-O, 2011 WL 13232699, at *4 (N.D.
Tex., Jan. 14, 2011) (“As stated by Defendant, interrogatories 2 and 8 require
Defendant to provide a witness list prior to the time required by the Federal Rules of
Civil Procedure. Therefore, Defendant is not obligated to answer interrogatories 2 or
8.”); Merrill Lynch, Pierce, Fenner & Smith Inc. v. Greystone Servicing Corp., Inc., No.
3-06-cv-575-P, 2007 WL 4179864, at *1 n.1 (N.D. Tex. Nov. 26, 2007) (“Plaintiff also
asked South Side to identify all expert witnesses expected to testify at trial and to
provide certain information regarding those experts. Although South Side objected to
that interrogatory, it went on to state that no experts have been designated at this
time. Because parties are not required to designate their experts until July 17, 2008,
or designate their rebuttal experts until August 18, 2008, it is premature to address
the sufficiency of South Side's answer to this interrogatory. Once the parties designate
their experts, they must comply with the requirements of Fed. R. Civ. P. 26(a)(2)(B),
which covers most if not all of the information requested in Interrogatory No. 7.”
(citations omitted)).
As another judge in this district has explained, “Rule 33(b)(3) obligates [an
answering party] to ‘fully’ answer the interrogatories, but [the answering party] need
not provide answers that it does not now have. [The answering party] is obligated
-19-
under Rule 33 to respond to [the other parties’] interrogatories to the extent it is able
to, and to supplement its responses, as required under Rule 26(e)(1)(A).” Klein v. Fed’l
Ins. Co., No. 7:03-cv-102-D, 2014 WL 3408355, at *7 (N.D. Tex. July 14, 2014). State
Auto has explained what information it does and does not have as to its definitive
witness list for trial at this time, and Rule 26(a) and the Court’s scheduling orders do
not require more of State Auto at this time.
The Court therefore grants Defendants’ MTC only in part as to Interrogatory No.
1 and orders State Auto to, by August 10, 2018, supplement its answer to provide the
information that it currently has, as explained in its response to the MTC, as to all
persons who will testify at trial for State Auto and enters a protective order against
any requirement for State Auto to further answer beyond that requirement prior to the
Court’s deadline for witness lists set by its current scheduling order.
II.
Defendants’ Interrogatory No. 8
Defendants ask the Court to order State Auto to serve a complete answer to the
following interrogatory (to which State Auto’s objections and answer are listed below):
INTERROGATORY NO. 8: For any and all persons who investigated,
reviewed, handled, or made decisions regarding Defendant/Counter-Plaintiff’s
claim(s), please state the following:
a) Name, address, and telephone number. For all such persons who are
no longer employees, agents, or representatives of any defendant,
please so indicate and provide the person’s last known address and
telephone number.
b) Job title or position and years held;
c) Supervisor;
d) Licenses held;
e) Education;
f) Any specialized certifications or qualifications; and
g) Dates of such involvement.
-20-
ANSWER: Plaintiff objects that said request is overly broad, seeks in part
irrelevant documents, is not proportional or reasonably particular, and is vague.
Plaintiff/Counter-Defendant refers Defendant/Counter-Plaintiff to all documents
produced including the portions of the claim file and the log notes produced in
this case for all individuals involved in the case as these documents contain the
best evidence of the individuals involved in the claim. Furthermore, Plaintiff
objects as this interrogatory is better the topic of a deposition and any response
may be subject to a complaint by Plaintiff that the answer is not sufficiently
detailed. Therefore,
Defendants contend that this interrogatory “is especially tailored to find the
people who should have been identified in [State Auto’s] initial disclosures, those who
were involved in State Auto’s handling of the claim and who would have discoverable
information.” Dkt. No. 83 at 9. Defendants complain that State Auto’s objections “lack
the requisite information required by the rules” and so “are unsustainable boilerplate
and must be overruled.” Id. And, Defendants note, State Auto improperly “referred
[Defendants] to the same broad category of documents as discussed above” as to
Interrogatory No. 1 and improperly “claimed that the subject of the interrogatory was
better suited for deposition.” Id. at 9-10.
State Auto responds that it “has disclosed the identities of those individuals who
investigated, reviewed, handled, or made decisions regarding Defendants’ claim” but
“re-asserts its objection that Defendants’ request as written is overly broad, vague, and
seeks information that is not relevant or reasonably calculated to lead to admissible
evidence.” Dkt. No. 98 at 6. According to State Auto, “[a]s written, Defendants’ request
seeks the identity of each and every employee at State Auto who had any involvement
whatsoever with this claim,” and “Defendants do not define the terms ‘reviewed,’
‘handled,’ or ‘made decisions.’” Id. State Auto contends that, where “[t]his request could
-21-
encompass the identities of those individuals who logged an entry in the system on
behalf of another without any knowledge of the facts or circumstances underlying
Defendants’ claim,” “[t]he claim notes produced by Plaintiff provide the best
information regarding the identities of those employees who worked on this claim,” but
“the identities of those employees possessing the most knowledge and who primarily
worked on Defendants’ claim are identified above.” Id.
In reply, Defendants urge that, with no additional support or evidence from to
State Auto support its objections, State Auto’s objections “are unsustainable boilerplate
and must be overruled” and that State Auto’s pointing to the claim notes is problematic
and insufficient where “the claim notes are heavily redacted and do not allow
[Defendants] to determine who at State Auto worked on [Defendants’] claim and what
their involvement was,” such that, “[b]y redacting the information and refusing to
answer [Interrogatory No. 8], Plaintiff has effectively blocked [Defendants] from
learning about potential witnesses.” Dkt. No. 103 at 4. According to Defendants, “[t]he
identities of all of the people involved in the handling of the claim are clearly relevant
to [Defendants’] counter-claim about how the claim was handled and Plaintiff’s
affirmative defense that it conducted a reasonable investigation,” and “[w]hile some
people may have been more involved than others, the fact that someone had a limited
role does not shield their identity from discovery or estop [Defendants] from finding out
about what their role was.” Id. at 4-5.
State Auto’s overbreadth, relevance, proportionality, reasonably particularity
(expressly a requirement of Federal Rule of Civil Procedure 34(b) and not Rule 33), and
-22-
vagueness objections are not made with the required specificity and explanation of the
basis for the objection as to this interrogatory and what portions State Auto cannot and
is not answering or responding to based on its objections and why.
The Court has previously explained that a “party objecting to discovery as vague
or ambiguous has the burden to show such vagueness or ambiguity”; that “[a] party
objecting on these grounds must explain the specific and particular way in which a
request is vague”; that “[t]he responding party should exercise reason and common
sense to attribute ordinary definitions to terms and phrases utilized in interrogatories”
and, “[i]f necessary to clarify its answers, ... may include any reasonable definition of
the term or phrase at issue”; and that, “[i]f a party believes that the request is vague,
that party [should] attempt to obtain clarification [by conferring with the requesting
party] prior to objecting on this ground.” Heller, 303 F.R.D. at 491-92 (internal
quotation marks and citations omitted). Before responding to the MTC, State Auto
apparently made no effort to do so, and its now pointing to undefined terms is too little,
too late. Further, a vague and ambiguous objection does not justify a complete refusal
to answer unless an interrogatory is so vague or ambiguous as to be incapable of
reasonable interpretation and prohibit a response. See id. at 492; see also id. at 488.
Interrogatory No. 8’s asking an insurance company about “persons who investigated,
reviewed, handled, or made decisions regarding” the claim at issue is not that.
Otherwise, in responding to the MTC, State Auto again asserts its boilerplate
objections without further explanation. The Court therefore overrules its overbreadth,
relevance, proportionality, reasonably particularity, and vagueness objections.
-23-
State Auto’s pointing to documents, including produced but redacted claim notes,
fares no better here than as to Interrogatory No. 1. The Court is not persuaded that the
claims notes – certainly with redactions, but even without – permit Defendants to
locate and identify the requested information at least as readily as State Auto can from
its own internal documents, and State Auto does not even argue that the previously
produced documents – which State Auto does not identify with the specificity that Rule
33(d) requires – can provide the information requested by each subpart of this
interrogatory.
Finally, as Defendants note, “Rule 26(d) generally governs the sequencing of
discovery unless the Court enters a protective order under Rule 26(c) or another order
governing the sequence of conducting discovery under Federal Rule of Civil Procedure
16(b) or 26(d) or the parties make a stipulation under Federal Rule of Civil Procedure
29. Absent a court order providing otherwise or a binding stipulation, Rule 26(d)(2)(A)
generally dictates that [Defendants] may seek information through an interrogatory
even if [State Auto] believes the subject matter would be better explored through a
deposition.” Heller, 303 F.R.D. at 493. And, “while, as a general matter, under Rule 26,
a party may seek discovery through any permitted method in any sequence, ... [but]
‘there’s certainly case law where there are some kinds of contention interrogatories
where courts have felt that, in their discretion, they could say it ought to be a
deposition instead, like a 30(b)(6) deposition,’” id., the Court is not persuaded that the
kind of detailed information that Defendants seek here is so much better suited to
-24-
deposition testimony that State Auto should be excused from fully answering this
interrogatory.
The Court determines that, although, as Defendants explain, some information
responsive to Interrogatory No. 8 may relate to individuals with a limited role as to
Defendants’ claim, the information responsive to this interrogatory, as written, is
relevant to a claim or defense in this case and is proportional to the needs of the case.
The Court grants the MTC as to this interrogatory and orders that State Auto
must, by August 10, 2018, serve on Defendants a complete answer – without
objections – to Interrogatory No. 8.
III.
Defendants’ Interrogatory No. 9
Defendants ask the Court to order State Auto to serve a complete answer to the
following interrogatory (to which State Auto’s objections and answer are listed below):
INTERROGATORY NO. 9: Identify every person who participated to any
degree in reviewing the decision to deny or pay Defendant/Counter-Plaintiff’s
claim in whole or in part before you received Defendant/Counter-Plaintiff’s
demand letter in this case or their lawsuit. In addition, the involvement of each
person identified, state the date each such review was performed and state the
result of the review.
ANSWER: Plaintiff objects that said request seeks in part irrelevant
documents, is overly broad, is not proportional or reasonably particular, and is
vague. Plaintiff asserts the attorney-client privilege, work product, investigative
and consulting expert privileges, and is withholding documents pursuant to
same.
Defendants assert that, “[l]ike Interrogatory [No.] 8,” Interrogatory No. 9 “was
specifically tailored to discover who participated in the review of the claims decision
in this case and their involvement before the June 20, 2016 demand letter in this case”
but that, “[i]nstead of properly responding, State Auto provided the same unsupported
-25-
boilerplate objections which must be overruled for the reasons discussed above.” Dkt.
No. 83 at 10. Defendants further note that “State Auto also claimed the attorney-client,
work product, investigative, and consulting expert privileges” but “provided no
information as to how these privileges apply [and] noted it was withholding documents
based upon this objection, even though the request was not for documents.” Id.
State Auto responds that this interrogatory “is overly broad, vague, and seeks
information that is not relevant or reasonably calculated to lead to admissible
evidence” and that “[t]he four individuals listed above are the State Auto who
investigated, reviewed, and made decisions regarding Defendants’ claim.” Dkt. No. 98
at 7. According to State Auto, “[a]s written, Defendants’ request could be interpreted
to require Plaintiff to disclose the identities of each and every individual who reviewed
the decision to deny or pay Defendants’ claim even if that individual played no part in
the decision itself,” but, “[i]n an effort to comply with Defendants’ request, Plaintiff has
identified and produced for deposition(s) the four individuals who actually investigated
this matter and made the decisions concerning coverage.” Id.
And State Auto asserts that, “[w]hile [State Auto] concedes that this request did
not seek documents, it did seek information that Plaintiff believes is subject to the
attorney-client, work product, and investigative and consulting expert privileges,”
where “[t]he parties do not dispute that Plaintiff’s counsel was hired within two weeks
following the April 3, 2014 storm” and where, “[a]lthough Defendants seek information
in Plaintiff’s possession that pre-dates Defendants’ demand letter, Plaintiff contends
that the contents of the reviews and results reached are privileged.” Id. State Auto
-26-
explains that “[m]any of the initial reviews were performed by Plaintiff’s retained
experts in this matter,” and “[t]he review conducted and results reached are documents
in their expert reports.” Id. Finally, State Auto argues that, “[t]o the extent Defendants
request additional information, this information is privileged pursuant to Federal Rule
of Civil Procedure 26(b)(4),” and, “[g]iven the broad, vague, and unclear wording of
Defendants’ request, without objection, this information could be subject to
production.” Id. at 7-8. State Auto contends that, as it “has disclosed the identities of
the four individuals who investigated and made decisions regarding Defendants’
claim,” the Court should deny the MTC as to Interrogatory No. 9.
Defendants reply that State Auto’s objections again “lack the requisite specificity
required by the rules” and that State Auto “attached no evidence or affidavits to the
response other than the responses to the original requests and Plaintiff’s most recent
supplemental disclosures.” Dkt. No. 104 at 5. According to Defendants, as a result,
State Auto “failed to meet its burden regarding the claim of privilege,” and “the
objections are unsustainable boilerplate and must be overruled.” Id. at 5-6.
The Court agrees for the most part. In its boilerplate objections and even its
response to the MTC, State Auto fails to support its relevance, overbreadth,
proportionality, reasonably particularity, and vagueness objections with the required
specificity and explanation of the basis for the objection as to this interrogatory and
what portions State Auto cannot and is not answering or responding to based on its
objections and why. And State Auto has not explained how information responsive to
the request to “[i]dentify every person who participated to any degree in reviewing the
-27-
decision to deny or pay Defendant/Counter-Plaintiff’s claim in whole or in part before
you received Defendant/Counter-Plaintiff’s demand letter in this case or their lawsuit”
and to identify “the involvement of each person identified” and “state the date each
such review was performed” could constitute protected attorney work product or
attorney-client privileged communications or invade any other privilege or run afoul
of Rule 26(b)(4)’s protections.
As for State Auto’s asserting privileges and work product protection as to the
request that it “state the result of the review” beyond what has been produced in its
expert witnesses’ reports, the Court will defer ruling on the MTC as to only that
portion of this interrogatory and will address it in connection with Defendants’ Motion
to Compel Production of Un-Redacted Documents and Documents 1-19 on Plaintiff’s
Privilege Log [Dkt. No. 82] and Motion to Compel Production of Documents in the
State Auto Claim File [Dkt. No. 84].
But the Court otherwise determines that the information responsive to the
remainder of this interrogatory, as written, is relevant to a claim or defense in this case
and is proportional to the needs of the case and overrules State Auto’s objections – and
grants the MTC – as to the rest of the interrogatory. The Court orders that State Auto
must, by August 10, 2018, serve on Defendants a complete answer – without
objections – to Interrogatory No. 9’s request to “[i]dentify every person who
participated to any degree in reviewing the decision to deny or pay Defendant/CounterPlaintiff’s claim in whole or in part before you received Defendant/Counter-Plaintiff’s
-28-
demand letter in this case or their lawsuit,” as well as “the involvement of each person
identified,” and “state the date each such review was performed.
IV.
Award of expenses
Defendants and State Auto each request a Rule 37(a)(5) award of their expenses
in bringing or defending against the MTC.
Under Rule 37(a)(5)(C), the Court determines that, considering all of the
circumstances here and the Court’s rulings above, the parties will bear their own
expenses, including attorneys’ fees, in connection with Defendants’ MTC as to
Interrogatory No. 1.
But, as to Defendants’ MTC as to Interrogatory Nos. 8 and 9, the Court will
grant State Auto until August 17, 2018 to file a response explaining why the Court
should not enter an order requiring it or its counsel to pay Defendants, under Rule
37(a)(5)(C), the expenses, including attorneys’ fees, that Defendants incurred in
drafting and filing its MTC and reply in support as to these two interrogatories based
on State Auto’s manner of objecting and responding to these interrogatories, and
Defendants may then file a reply in support of such an award of expenses under Rule
37(a)(5)(C) by August 31, 2018. Whether or not the Court determines that an award
of expenses is appropriate, failing to follow the Federal Rules’ and case law’s
requirements for specificity in objecting and responding and answering, as well as
correspondingly answering or responding “subject to” and “without waiving” those
objections, is improper, as the undersigned and many other judges in this circuit and
elsewhere have now made clear for several years. See, e.g., Pitre v. Epps, Civ. A. No.
-29-
18-1562, 2018 WL 3094367, at *2 (E.D. La. June 22, 2018) (van Meerveld, J.); Eagle
Railcar Services-Roscoe, Inc. v. NGL Crude Logistics, LLC, No. 1:16-cv-153-BL, 2018
WL 2317696, at *18 (N.D. Tex. May 22, 2018) (Frost, J.); Star Creek Ctr., LLC v.
Seneca Ins. Co., Inc., Civ. A. No. 4:17-CV-00607, 2018 WL 1934084, at *2-*3 (E.D. Tex.
Apr. 23, 2018) (Mazzant, J.); Walters v. Sentry Link, LLC, No. A-16-CV-383-LY, 2018
WL 837611, at *3 (W.D. Tex. Feb. 9, 2018) (Austin, J.); Tsanacas v. Amazon.com, Inc.,
Civ. A. No. 4:17-CV-00306, 2018 WL 324447, at *2-*3 (E.D. Tex. Jan. 8, 2018)
(Mazzant, J.); BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc., No. 15 C
10340, 2017 WL 5890923, at *1-*2 (N.D. Ill. Nov. 29, 2017) (Cole, J.); Team
Contractors, L.L.C. v. Waypoint NOLA, L.L.C., Civ. A. No. 16-1131, 2017 WL 3216582,
at *2 (E.D. La. July 28, 2017) (Wilkinson, J.); Columbia Mut. Ins. Co. v. Kerrville Prof’l
Props., Ltd., Civ. No. SA-16-CA-00973-XR, 2017 WL 7805755, at *2 (W.D. Tex. July 12,
2017) (Primomo, J.); Lechuga v. Magallanes, No. MO:16-CV-00269-RAJ-DC, 2017 WL
8180781, at *2, *6 (W.D. Tex. June 1, 2017) (Counts, J.); Matthews v. J & J Serv.
Solutions, LLC, Civ. A. No. 16-621-BAJ-EWD, 2017 WL 2256963, at *4 & n.31 (M.D.
La. May 23, 2017) (Wilder-Doomes, J.); Source Network Sales & Marketing, LLC v.
Jiangsu Mega Motor Co., No. 3:16-cv-1202-B-BK, 2017 WL 7596913, at *4 (N.D. Tex.
May 15, 2017) (Toliver, J.); Sell v. Universal Surveillance Sys., LLC, No. A-16-CV-660RP-ML, 2017 WL 2999420, at *1 (W.D. Tex. Apr. 19, 2017) (Lane, J.); RealPage, Inc.
v. Enterprise Risk Control, LLC, Civ. A. No. 4:16-CV-00737, 2017 WL 1165688, at *2-*4
(E.D. Tex. Mar. 29, 2017) (Mazzant, J.); Tadlock v. Arctic Cat Sales, Inc., Civ. A. No.
-30-
15-766-JJB-EWD, 2017 WL 1032516, at *8-*9 (M.D. La. Mar. 17, 2017) (WilderDoomes, J.); Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 185-87 (N.D.
Iowa 2017) (Bennett, J.); Crum & Forster Specialty Ins. Co. v. Great West Cas. Co., No.
EP-15-cv-00325-DCG, 2016 WL 10459397, at *4 n.7 (W.D. Tex. Dec. 28, 2016) (Berton,
J.); Stringer v. Cascos, Civ. No. SA-16-CA-257-OG, 2016 WL 8914448, at *1-*2 (W.D.
Tex. Dec. 14, 2016) (Garcia, C.J.); Eubank v. Lockhart Indep. Sch. Dist., No. A-15-CV1019-RP-ML, 2016 WL 11214437, *2, *5 (W.D. Tex. Nov. 8, 2016) (Lane, J.); Latham
v. Polaris Indus., Inc., No. 3:15-cv-1209-B, 2016 WL 7389241, at *2 (N.D. Tex. Oct. 5,
2016) (Stickney, J.); Rosalez Funez v. E.M.S.P., LLC, Civ. A. No. 16-1922, 2016 WL
5337981, at *2-*3 (E.D. La. Sept. 23, 2016) (Roby, J.); Hopkins v. Green Dot Corp., Civ.
No. SA-16-CA-00365-DAE, 2016 WL 8673861, at *3 (W.D. Tex. Aug. 16, 2016)
(Primomo, J.); In re Adkins Supply, Inc., 555 B.R. 579, 587-88 (Bkrtcy. N.D. Tex. 2016)
(Jones, J.); Crow v. ProPetro Servs., Inc., No. MO:15-CV-00149-RAJ-DC, 2016 WL
9776368, at *3-*4 (W.D. Tex. June 6, 2016) (Counts, J.); Southwest Insulation, Inc. v.
Gen’l Insulation Co., No. 4:15-cv-601-O, 2016 WL 9244822, at *2-*5 (N.D. Tex. Apr. 25,
2016) (O’Connor, J.); Rivera v. United States, No. EP-15-CV-21-KC, 2015 WL
13649403, at *7 (W.D. Tex. Dec. 22, 2015) (Berton, J.); New Belgium Brewing Co., Inc.
v. Travis County Brewing Co. LLC, No. A-15-CV-452 LY, 2015 WL 13227999, at *1-*2
(W.D. Tex. Dec. 18, 2015) (Austin, J.); Emerald City Mgmt., LLC v. Kahn, No.
4:14-cv-358, 2015 WL 11170165, at *6-*7 (E.D. Tex. Sept. 2, 2015) (Clark, J.); Gonzalez
v. Volkswagen Group of Am., Inc., No. A-14-CV-574-LY-ML, 2015 WL 5097271, at *2
-31-
(W.D.
Tex.
Aug.
28,
2015)
(Lane,
J.);
Blair
v.
Pride
Indus.,
Inc.,
EP-14-CV-00183-DCG-RFC, 2015 WL 10818665, at *1-*6 (W.D. Tex. July 17, 2015)
(Castaneda, J.); Roca Resource Co., Inc. v. Devon Energy Prod. Co., L.P., No. P:14-CV00085-DAE-DC, 2015 WL 12746117, at *7 (W.D. Tex. July 2, 2015) (Counts, J.); Simon
v. State Farm Lloyds, Civ. A. No. 7:14-CV-251, 2015 WL 12777219, at *4 (S.D. Tex.
Apr. 9, 2015) (Alvarez, J.); Chevron Midstream Pipelines LLC v. Settoon Towing LLC,
Civ. A. Nos. 13-2809 & 13-3197, 2015 WL 269051, at *3-*5 (E.D. La. Jan. 21, 2015)
(North, J.); Cummins v. Lollar, No. 4:12-cv-560-Y, 2014 WL 12585670, at *2 (N.D. Tex.
Aug. 26, 2014) (Cureton, J.); see also Steven S. Gensler & Lee H. Rosenthal, Breaking
the Boilerplate Habit in Civil Discovery, 51 AKRON L. REV. 683 (2017).
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part and DEFERS RULING in part on Defendants’ Motion to Compel
Plaintiff’s Responses to Freehold’s Interrogatories [Dkt. No. 83].
SO ORDERED.
DATED: July 24, 2018
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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