Knisely v. National Better Living Association, Inc et al
ORDER GRANTING PLAINTIFF'S MOTION 136 FOR LEAVE TO SERVE ADDITIONAL INTERROGATORIES. NBLA shall file its responses by 3/13/2015. Objections are due within 14 days of the date of this Order. Signed by Magistrate Judge Robert W. Trumble on 2/11/2015. (tlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO.: 3:14-CV-15
NATIONAL BETTER LIVING
ASSOCIATION, INC., AMERICAN
MEDICAL AND LIFE INSURANCE
COMPANY, and JOHN/JANE DOES,
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO SERVE ADDITIONAL INTERROGATORIES 
On February 3, 2015, an evidentiary hearing was held on Plaintiff’s Motion for Leave to
Serve Additional Interrogatories (“Pl.’s Mot.,” ECF No. 136) in conjunction with Plaintiff’s Third
Motion to Compel. Plaintiff David Knisely appeared by counsel, Laura C. Davis, Esq., in person.
Defendant National Better Living Association, Inc. (“NBLA”) appeared by counsel, Eric A.
Larson, Esq. and Kaitlin Lane Hillenbrand, Esq., in person. Defendant American Medical and Life
Insurance Company (“AMLI”) nor counsel appeared. No additional testimony or evidence was
presented and the Court proceeded to hear argument. After considering argument and reviewing
the record, the Court makes the following findings of fact and conclusions of law.
In the Court’s Order on Plaintiff’s Third Motion to Compel, also entered on this date, the
Court found that Plaintiff’s First Set of Interrogatories did not exceed the twenty-five interrogatory
allowance. However, the Court found that Plaintiff’s Second Set of Interrogatories exceeded the
twenty-five interrogatory limit agreed to by the parties in their Rule 26(f) conference. The Court
explained that Interrogatory No. 1 sought information to Plaintiff’s Requests for Admission “[i]f
any response to the requests…was anything other than an unequivocal ‘admit.’” (NBLA’s Resps.
to Pl.’s First Reqs. for Admis. at 4-7, ECF No. 129-4). Plaintiff filed twenty-five Requests for
Admission and NBLA admitted Nos. 5, 6 and 13. (Id.). Therefore, the Court found that
Interrogatory No. 1 necessarily implicated NBLA's responses to at least twenty-two Requests for
Admission. See Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., No. 1:00CV00113, 2002 WL
534459, at *2 (W.D. Va. Mar. 18, 2002) (stating that “interrogatories based on responses to
requests for admission generally will concern separate subjects and should be counted as discrete
subparts.”); see also Stevens v. Federated Mut. Ins. Co., No. 5:05-CV-149, 2006 WL 2079503, at
*6 (N.D.W. Va. July 25, 2006) (Seibert, M.J.) (finding that “Interrogatory No. 10 cannot be
considered a single interrogatory because it seeks information regarding eleven requests for
admission involving different subject areas.”).
In anticipation of Plaintiff’s interrogatories exceeding the twenty-five allowance, Plaintiff
filed his Motion for Leave to Serve Additional Interrogatories on January 14, 2015. (Pl.’s Mot.
ECF No. 136). NBLA filed its Response in Opposition to Plaintiff’s Motion for Leave to Serve
Additional Interrogatories on February 2, 2015. (“Def.’s Resp.,” ECF No. 144).
CONTENTION OF THE PARTIES
Plaintiff argues that the case is “extremely difficult and NBLA has been far from
forthcoming with its production to date.” (Pl.’s Mot. at 2). Plaintiff further asserts he is seeking
discovery in good faith and not for any improper purpose. NBLA argues that “the proposed
Interrogatories should be disallowed because they are unreasonably cumulative, duplicative, not
relevant, and/or not reasonably calculated to lead to the discovery of admissible evidence.” (Def.’s
Resp. at 1). NBLA further asserts that Plaintiff failed to make a showing of good cause to allow
additional interrogatories and Plaintiff has had ample opportunity to obtain discovery. (Id. at 2).
Federal Rules of Civil Procedure Rule 33 provides: “unless otherwise stipulated or ordered
by the court, a party may serve on any other party no more than 25 written interrogatories,
including all discrete subparts. Leave to serve additional interrogatories may be granted to the
extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 33(a)(1). Federal Rules of Civil Procedure
Rule 26(b)(2)(A) provides that “[b]y order, the court may alter the limits in these rules on the
number of…interrogatories.” Fed. R. Civ. P. 26(b)(2)(A). Rule 26(b)(2)(C) provides that, on
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 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 burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action, and
the importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). In addition, the court considers whether “good cause exists for the
court to grant leave for interrogatories to be propounded in excess of the limitation.” Am.
Chiropractic Ass'n v. Trigon Healthcare, Inc., No. 1:00CV00113, 2002 WL 534459, at *3 (W.D.
Va. Mar. 18, 2002) (citing Capacchione v. Charlotte–Mecklenburg Sch., 182 F.R.D. 486, 492
Whether Discovery Sought Is Unreasonably Cumulative Or Duplicative
First, the Court rejects NBLA’s argument that Interrogatory No. 1 is unreasonably
cumulative and duplicative. Interrogatory No. 1 asks NBLA to explain its response to Plaintiff’s
Requests for Admission for those responses that NBLA did not unequivocally admit. The
Interrogatory is seeking further clarification and information regarding the Requests for
Admissions, not merely a restatement of whether NBLA can admit or deny the Requests. In
another case in this district, Magistrate Judge Seibert ordered the defendant to respond to an
interrogatory that sought additional information regarding responses to requests for admission. See
Tustin v. Motorists Mut. Ins. Co., No. 5:08-CV-111, 2009 WL 3335060, at *13 (N.D.W. Va. Oct.
14, 2009) (Seibert, M.J.) (explaining that the “[d]efendant needed to first list the Requests for
Admissions for which it lacked knowledge or information sufficient to either admit or deny the
Request and second list the information needed to admit or deny the Request.”). Here,
Interrogatory No. 1 is asking NBLA to list each Request for Admission it did not unequivocally
admit and state the basis, the facts, any witnesses who can support and documents supporting its
denial or qualified response for each Request. The inquiry for such information is not cumulative
or duplicative of the original Requests for Admission.
Moreover, NBLA argues that Interrogatory No. 1 is duplicative because it seeks documents
relied upon in answering the Requests for Admission and NBLA produced these documents in
response to Plaintiff’s Request for Production of Documents No. 1. However, merely producing
documents related to the Requests for Admission does not answer the question posed in
Interrogatory No. 1, which asks for identification and location of documents supporting the denial
or qualified response for each Request for Admission. See Tustin, 2009 WL 3335060, at *12
(quoting Martin v. Easton Pub. Co., 85 F.R.D. 312, 315 (E.D. Pa. 1980) (finding that “[a party]
cannot escape responsibility of providing direct, complete and honest answers to interrogatories
with the caviler assertion that required information can be found in this massive amount of
material. Rather [a party] must state specifically and identify precisely which documents will
provide the desired information.”). Accordingly, Interrogatory No. 1 is not cumulative or
duplicative as contemplated by Rule 26(b)(2)(C)(i).
Whether the Party Seeking Discovery Has Had Ample Opportunity To Obtain The
Second, the Court rejects NBLA’s argument that Plaintiff has had ample opportunity to
obtain the information by discovery. As indicated in the Order on Plaintiff’s Third Motion to
Compel, the Court found that Plaintiff’s First Set of Interrogatories did not exceed the twenty-five
interrogatory allowance as the alleged subparts of each interrogatory still related to one discrete
subject. As such, Plaintiff has only filed and NBLA answered ten interrogatories. The information
sought in the additional interrogatories has not been the subject of a prior request by Plaintiff.
Therefore, Plaintiff has not had ample opportunity to obtain the requested information.
Whether the Burden of the Proposed Discovery Outweighs the Likely Benefit
The Court finds that the burden or expense on NBLA to answer the excess Interrogatories
is not likely to outweigh the benefit of obtaining the information. The additional interrogatories
are straightforward and NBLA is the only party who possesses the information necessary to
respond. Accordingly, requiring NBLA to provide additional information as to its denials or
qualified responses for the Requests for Admission does not impose a substantial burden on
NBLA. However, there is great benefit to Plaintiff to obtain the information, as he has not had the
opportunity to discover these issues and most of the discovery in this case has been subject to
Whether Interrogatories Nos. 2, 3, 4 And 5 Are Not Relevant And Not Reasonably
Calculated To Lead To The Discovery Of Admissible Evidence
The Court also rejects NBLA’s argument that Interrogatories Nos. 2, 3, 4 and 5 are not
relevant and not reasonably calculated to lead to the discovery of admissible evidence. Federal
Rules of Civil Procedure Rule 26(b)(1) states that “[r]elevant information need not be admissible
at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”). Moreover, “[t]he discovery rules are given ‘a broad and liberal treatment.’” Nat'l
Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co. Inc., 967 F.2d 980, 983 (4th
Cir. 1992). Plaintiff’s remaining claims include violations of the West Virginia Unfair Trade
Practices Act, violations of the Discount Medical Plan Organizations and Discount Prescription
Drug Plan Act Organization Act, fraud and unconscionability. The Court finds that Interrogatories
Nos. 2, 3, 4 and 5 appear reasonably calculated to lead to the discovery of admissible evidence
relating to these remaining claims.
Whether Good Cause Exists to Allow Additional Interrogatories
Moreover, the Court finds that good cause exists to grant leave for interrogatories to be
propounded in excess of the twenty-five interrogatory allowance agreed to by the parties.
Obtaining more detailed information regarding the twenty-two Requests for Admission that were
not unequivocally admitted should help narrow undisputed issues and range of issues for trial. See
Fisher v. Baltimore Life Ins. Co., 235 F.R.D. 617, 623 (N.D.W. Va. 2006). Moreover, as discussed
above, the discovery is not unreasonably cumulative or duplicative, Plaintiff has not had ample
opportunity to obtain the information sought and the burden on NBLA in responding is not likely
to outweigh the benefit to Plaintiff in obtaining the information.
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion for Leave to
Serve Additional Interrogatories  is GRANTED and NBLA shall file its responses to
Plaintiff’s Second Set of Interrogatories Nos. 1, 2, 3, 4 and 5 on or before March 13, 2015.
Any party may, within fourteen (14) days of this Order, file with the Clerk of the Court
written objections identifying the portions of the Order to which objections are made and the basis
for such objections. A copy of such objections should also be submitted to the District Court Judge
of Record. Failure to timely file objections to the Order set forth above will result in waiver of the
right to appeal from a judgment of this Court based upon such order.
Filing of objections does not stay this Order.
The Clerk of the Court is directed to provide a copy of this Order to parties who appear pro
se and all counsel of record, as applicable, as provided in the Administrative Procedures for
Electronic Case Filing in the United States District Court for the Northern District of West
Date Entered: February 11, 2015
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