W. W. McDonald Land Co. et al v. EQT Production Company et al

Filing 117

MEMORANDUM OPINION AND ORDER denying 100 MOTION for Leave to Serve Additional Interrogatories. Signed by Magistrate Judge Cheryl A. Eifert on 8/26/2013. (cc: attys; any unrepresented party) (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
W.W. MCDONALD LAND, CO., et al.
Plaintiffs,
v.

Case No.: 2:11-cv-0418

EQT PRODUCTION COMPANY, et al.,
Defendants.

MEMORANDUM ORDER AND OPINION
Pending before the Court is Plaintiffs’ Motion for Leave to Serve Additional
Interrogatories. (ECF No. 100). Defendants have filed a response in opposition to the
motion, and Plaintiffs have replied. (ECF Nos. 111, 112). For the reasons that follow, the
Court DENIES Plaintiffs’ motion.
Fed.R.Civ.P. 33(a) limits parties to no more than 25 written interrogatories,
including all discrete subparts, unless otherwise stipulated or ordered by the court. The
purpose of this limitation is to “provide judicial scrutiny before parties make potentially
excessive use of this discovery device.” Fed.R.Civ.P. 33(a), Advisory Committee Notes,
1983 Amendments. When a party seeks leave to serve additional interrogatories, “the
issue [frequently] becomes whether the requesting party has adequately shown that the
benefits of additional interrogatories outweigh the burden to the opposing party.”
Chiropractic Assoc. v. Trigon Healthcare, Inc., No. 1:00CV00113, 2002 WL 534459, at
*4 (W.D.Va. Mar. 18, 2002).
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Here, the parties initially disagree about the number of interrogatories filed by
Plaintiffs in their first two sets of discovery requests. Plaintiffs contend that they filed a
total of twenty-two (22) interrogatories in their first and second set of interrogatories.
Therefore, they are entitled to answers to the first three interrogatories in the third set of
discovery and ask leave to serve the remaining five interrogatories. To the contrary,
Defendants argue that Plaintiffs served at least twenty-five interrogatories in their first
and second set of discovery when counting all discrete subparts of the requests.
Accordingly, they are entitled to no more.
Rule 33(a) instructs the court to count “all discrete subparts” as a separate
interrogatory when determining the twenty-five permitted. The Rule does not define
“discrete,” and courts have found the definition a hard one to nail down. See e.g. Banks v.
Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C., 2004) (“While a draconian
approach would be to view each participial phrase as a subpart, the courts have instead
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, as another court has stated, this is anything but a
bright-line test. Safeco of America v. Rawstron, 181 F.R.D. 441, 445 (C.D.Cal. 1998). It
may also beg the question presented.”).
Having reviewed Plaintiffs’ first two sets of discovery requests, the undersigned
agrees with Defendants that these sets contain at least twenty-five interrogatories when
counting all of the discrete subparts. Consequently, the Court must consider whether the
benefits of the proposed additional discovery outweigh the burden to the Defendants of
responding to it. In performing this analysis, the Court must consider the parties’
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positions regarding discovery limitations as set forth in the Rule 26(f) report. (ECF No.
62). As reflected in the report, the parties agreed to be bound by the discovery limits
outlined in the Federal Rules of Civil Procedure. They also agreed that the case was not
complex and did not require any special case management procedures. (Id. at 3).
Plaintiffs now argue that the matter is “complex” after all, requiring them to file an
amended complaint, add five additional defendants, and conduct “extensive discovery.”
(ECF No. 112 at 2). However, Plaintiffs fail to acknowledge that the discovery limitations
included in the Rule 26(f) report were negotiated four months after Plaintiffs amended
the complaint and added the additional defendants. Indeed, given the amendment and
additional defendants, the Court vacated its first Scheduling Order to allow the parties a
second Rule 26(f) conference. Accordingly, this argument is not persuasive.
Plaintiffs’ second argument is that the additional interrogatories should be
permitted because Defendants’ 30(b)(6) witness did not fully cooperate at his deposition.
According to Plaintiffs, they asked the witness essentially the same questions posed in the
interrogatories, but the witness would not answer the questions. The portion of the
deposition transcript supplied by Plaintiffs, however, does not establish the accuracy of
this argument. Instead, the transcript indicates that Defendants’ counsel objected to the
questions on the grounds that they went beyond the Rule 30(b)(6) notice of deposition
and sought irrelevant information regarding other leases not the subject of the complaint.
Therefore, lack of cooperation was not really the problem; instead, Defendants had
substantive objections to the questions.
Because the proposed interrogatories seek the same information sought in
requests for production of documents that currently are before the Court on a motion to
compel, the undersigned sees no particular benefit in allowing Plaintiffs to renege on
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their earlier agreement regarding the limit of permissible interrogatories. Put another
way, in resolving the motion to compel, the undersigned will determine the
appropriateness of Defendants’ relevancy objection. If the information is deemed
relevant, then Plaintiff will obtain the answers to their interrogatories through the
documents produced by Defendants, and there is no need to file additional
interrogatories. On the other hand, if Defendants’ relevancy objection has merit, Plaintiffs
would not be entitled to receive answers to the proposed interrogatories. Either way, a
ruling on the motion to compel the documents will resolve the issues raised in Plaintiffs’
second argument.
Wherefore, for the forgoing reasons, the undersigned finds no good cause for
granting Plaintiffs leave to file additional interrogatories. It is so ORDERED.
The Clerk is directed to provide a copy of this Order to counsel of record and any
unrepresented party.
ENTERED: August 26, 2013.

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