The Estate of Laliah Swayzer et al v. Clarke et al

Filing 293

ORDER DENYING PLAINTIFFS' MOTION TO COMPEL AND GRANTING COUNTY DEFENDANTS' MOTION TO COMPEL. Signed by Magistrate Judge William E Duffin on 5/3/2019. (cc: all counsel) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THE ESTATE OF LALIAH SWAYZER, et al.,
Plaintiffs,
v.

Case No. 16-CV-1703

DAVID A. CLARKE, JR, et al.,
Defendants.
ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL AND
GRANTING COUNTY DEFENDANTS’ MOTION TO COMPEL
Yet again, the court is called on to resolve discovery disputes between the parties.
(See, e.g., ECF Nos. 42, 85, 88, 116, 154, 162, 176, 216, 236, 279.) Discovery having now
closed, hopefully this will be the last such dispute.
Plaintiffs’ Motion to Compel Interrogatory Response from Richard E. Schmidt
The plaintiffs ask the court to order Richard E. Schmidt to respond “to Plaintiffs’
First Set of Interrogatories to Defendant [sic] Richard E. Schmidt, dated February 15,
2019.” (ECF No. 280 at 1.) Although defendant Milwaukee County, by whom Schmidt
was formerly employed, answered the interrogatories, the plaintiffs contend the
responses are insufficient. “Specifically, Plaintiffs sought the name of the Sheriff’s

department personnel who located the audio of the intercom communications
produced in discovery, as well as the method in which that audio recording was
reproduced prior to discloser [sic].” (ECF No. 280 at 2.)
Richard E. Schmidt is no longer a defendant. The court has no authority by
which to compel him to answer any interrogatory. That by itself is a sufficient basis for
denying the plaintiffs’ motion. Setting that defect aside and construing the motion as
one to compel defendant Milwaukee County to answer the interrogatory, the court
would still deny the motion.
Although the plaintiffs do not identify the specific interrogatory to which they
seek a response, it appears to be Interrogatory No. 5, in which the plaintiffs inquire:
“Please identify the Sheriff Department’s personnel who located the audio of the
intercom communications produced through discovery in this case, as well as the
method in which that audio recording was reproduced prior to disclose [sic] to the
plaintiff here.” (ECF No. 281-1 at 4.) After offering various objections, Milwaukee
County responded, in relevant part, that the person was “a member of the Internal
Affairs division of the Sheriff’s Department staff.” (ECF No. 281-2 at 5.) The plaintiffs
ask that Milwaukee County be compelled to disclose this person’s identity “so that this
person may be deposed.” (ECF No. 280 at 2.) They state, “Due to the repeated delays by
the County to answer, Plaintiffs seeks [sic] to extend discovery deadline until this
unidentified person(s) can be deposed.” (ECF No. 280 at 2.)

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Obviously, without knowing the person’s identity, the plaintiffs cannot depose
him. But the plaintiffs have not shown why they need to depose the person who
downloaded data from a computer system. The plaintiffs’ only explanation is as
follows:
Here, Plaintiffs’ Interrogatories served on Schmidt seek a variety of
information related to radio transmissions, audio recordings, and audio
intercom communications during the operative time period and the
identification of correctional staff responsible for same. All Plaintiffs’
inquiries are reasonably calculated to lead to the discovery of admissible
evidence on their constitutional and Monell claims, as well as narrow the
issues for trial.
(ECF No. 280 at 3.)
The first sentence addresses the plaintiffs’ interrogatories generally and does not
explain why they need the identity of the particular employee. That leaves only the
second sentence, which is verbatim the same argument the plaintiffs offered in support
of one their prior motions to compel. (ECF No. 101 at 2-3.) But that argument
completely ignores what the court said before when it denied the prior motion:
The plaintiffs’ bald assertion that their “inquiries are reasonably calculated
to lead to the discovery of admissible evidence on their constitutional and
Monell claims, as well as narrow the issues for trial,” is not only
insufficient but an incorrect statement of the law. “[T]he oft-cited
‘reasonably calculated to lead to the discovery of admissible evidence'
language was removed from [Rule 26] through the amendment because it
had been used 'by some, incorrectly, to define the scope of discovery’ as
more broad than the scope set forth in Rule 26(b)(1).” ArcelorMittal Ind.
Harbor LLC v. Amex Nooter, LLC, No. 2:15-CV-195-PRC, 2016 U.S. Dist.
LEXIS 89117, at *6 (N.D. Ind. July 8, 2016) (quoting Fed. R. Civ. P. 26(b)(1)
advisory committee’s note to 2015 amendment). Thus, it was
inappropriate for the plaintiffs to rely upon the standard in their brief ….
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Estate of Swayzer v. Clarke, No. 16-CV-1703, 2017 U.S. Dist. LEXIS 203170, at *5 (E.D. Wis.
Dec. 11, 2017).
The plaintiffs’ motion to compel is denied.
County Defendants’ Motion to Compel Interrogatory Responses
Through 25 interrogatories, the Milwaukee County defendants ask the plaintiffs
to identify the factual bases for their claims. The interrogatories were answered by
plaintiff Shade Swayzer who, to the extent she offered any response, generally stated
that she lacked relevant knowledge.
The plaintiffs invoked “Attorney Work Product Privilege” as to all but three of
the 25 interrogatories. As to ten of the interrogatories, the plaintiffs offered no
substantive response, stating only, “Plaintiffs object to the request as vague, overly
broad, and ca1ls for information protected by the Attorney Work Product Privilege.”
(ECF No. 289, interrogatory nos. 6, 7, 8, 9, 16, 18, 20, 21, 24, 25.) Of the interrogatories to
which the plaintiffs provided any response, the response was generally empty and
unhelpful.
The County defendants’ interrogatories are commonly referred to as “contention
interrogatories,” i.e., “interrogatories … used to elicit a description of the opposing
party’s theory and proof to be employed.” Tragoszanos v. City of Algoma, No. 09-C-1028,
2011 U.S. Dist. LEXIS 72958, at *3 (E.D. Wis. July 6, 2011) (citing Zenith Electronics v. WHTV Broadcasting Corp., 395 F.3d 416, 420 (7th Cir. 2005)); Gregg v. Local 305 IBEW, No.
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1:08-CV-160, 2009 U.S. Dist. LEXIS 40761, at *15 (N.D. Ind. May 13, 2009) (“Contention
interrogatories can be classified as questions asking a party to: indicate what it contends
or whether the party makes some specified contention[;] … state all facts or evidence
upon which it bases some specific contention; take a position and apply law and facts in
defense of that position; or explain the theory behind some specified contention.”)
(internal quotation marks omitted); see also 7 Moore's Federal Practice - Civil § 33.78
(2019); Fed. R. Civ. P. 33(b), comments to 1970 amendment. “The basic premise of a
contention interrogatory is to require a party to commit to a position and to give
support for that position.” BASF Catalysts LLC v. Aristo, Inc., No. 2:07-cv-222, 2009 U.S.
Dist. LEXIS 4780, at *5 (N.D. Ind. Jan. 23, 2009).
Such interrogatories are “routinely used,” Fed. R. Civ. P. 33, comments to the
2007 amendment, and are a proper tool when “a defendant is uncertain about the scope
of the plaintiff’s legal theories…” Spacesaver Corp. v. Marvel Grp., Inc., 621 F. Supp. 2d
659, 662 (W.D. Wis. 2009) (citing Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217, 222 (7th Cir.
1996)); see also Auto Meter Prods. v. Maxima Techs. & Sys., LLC, No. 05 C 4587, 2006 U.S.
Dist. LEXIS 81687, at *6 (N.D. Ill. Nov. 6, 2006) (quoting Calobrace v. American Nat'l Can
Co., No. 93 C 999, 1995 U.S. Dist. LEXIS 1371, at *3 (N.D. Ill. Feb. 3, 1995) (“When one
party poses contention interrogatories after considerable discovery, and the opposing
party refuses to answer the interrogatories, courts routinely compel the resisting party
to answer the interrogatories.”) In assessing whether to require a party to answer

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contention interrogatories, the court should be guided by “[t]he twin aims of efficiency
and fairness” and consider whether the “answers will meaningfully contribute to issue
clarification, narrow the scope of the dispute, or provide for early settlement.” BASF
Catalysts, 2009 U.S. Dist. LEXIS 4780, at *6, *8. If a party fails to respond to a proper
contention interrogatory, it may be appropriate for the court to bar that party from
introducing evidence on the subject inquired about. See Zenith Elecs. Corp., 395 F.3d at
420.
The court rejects the plaintiffs’ argument that the defendants’ motion to compel is
untimely or that they improperly delayed. Contention interrogatories are often mostappropriate toward the close of discovery to eliminate the possibility that the plaintiff
has not yet had time to gather the information to support her claim. See Whitchurch v.
Canton Marine Towing Co., No. 16-cv-3278, 2017 U.S. Dist. LEXIS 42034, at *5-6 (C.D. Ill.
Mar. 23, 2017) (“Contention interrogatories are often better answered after parties are
near the end of discovery because they are better able to give complete responses.”);
Gregg, 2009 U.S. Dist. LEXIS 40761, at *18; BASF Catalysts, 2009 U.S. Dist. LEXIS 4780, at
*5; In re H & R Block Mortg. Corp., Nos. 2:06-MD-230 (MDL 1767), 2:05-CV-162-RL, 2006
U.S. Dist. LEXIS 90270, at *16 (N.D. Ind. Dec. 13, 2006). Circumstances may warrant a
party waiting until near the close of discovery to seek to compel incomplete
interrogatory responses lest other discovery moot the need for the motion.

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The plaintiffs’ third amended complaint spans 40 pages, includes 185
paragraphs, and names 18 defendants. (ECF No. 146). Given this expansive complaint
and the court’s familiarity with this litigation, the court finds that this is clearly a case
where contention interrogatories may be appropriately used to clarify and narrow the
issues. See In re Ocwen Loan Servicing, LLC, 491 F.3d 638, 641 (7th Cir. 2007) (noting that
contention interrogatories would have been appropriate because “[t]he complaint is a
hideous sprawling mess, 40 pages in length with 221 paragraphs of allegations”).
The plaintiffs attempt to evade their obligation to provide meaningful answers
by offering answers based only on the personal knowledge of plaintiff Shade Swayzer.
For example, when asked to “identify all witnesses and identify all documents by Batesnumber or deposition transcript citation that you claim support your response,” (ECF
No. 289 at 4), she responded, “I don’t know as I have not seen the discovery or batestamped material.” (ECF No. 289 at 5.) The defendants asked the plaintiffs to articulate
what they believe Kevin Ustby did to violate their civil rights. (ECF No. 289 at 5.)
Despite having named him as a defendant, Swayzer responded, “I don’t know Kevin
Ustby.” (ECF No. 289 at 5.)
To the extent the plaintiffs offered answers at all, “[t]he contention interrogatory
answers … in this case are simply too evasive to be helpful to the resolution of the
dispute. They do not in any manner assist in ‘paring down’ what pieces of evidence are
relevant to particular claims.” Burnett & Morand P'ship v. Estate of Youngs, No. 3:10-cv-3-

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RLY-WGH, 2011 U.S. Dist. LEXIS 36916, at *9 (S.D. Ind. Apr. 4, 2011). “[A] party cannot
refuse to answer an interrogatory merely on the ground that the information sought is
solely within the knowledge of his attorney.” Priddy v. Health Care Serv. Corp., No. 14-cv3360, 2016 U.S. Dist. LEXIS 147126, at *10 (C.D. Ill. Oct. 25, 2016). “A party must disclose
in answers to interrogatories information in his attorney’s possession, even though it
may not have not been transmitted to a party.” Id.
Thus, responding to a contention interrogatory is, at least in part, an obligation of
counsel. “An attorney who is faced with ‘contention’ type discovery must identify the
witnesses and documents he/she has marshaled in a way to support his/her client's
position and to help illuminate the issues to be resolved as the responses and answers
are due.” Burnett & Morand P'ship, 2011 U.S. Dist. LEXIS 36916, at *10. Accordingly, the
court rejects the plaintiffs’ argument that the responses are sufficient because they
reflect the extent of Swayzer’s personal knowledge. Thus, the court turns to the
plaintiffs’ contention that the information sought is protected work product. 1
Contention interrogatories generally do not invade the work product protection.
Rusty Jones, Inc. v. Beatrice Co., Case No. 89 C 7381, 1990 U.S. Dist. LEXIS 12116, at *3
(N.D. Ill. Sep. 11, 1990). In part, that is because the work product doctrine does not
protect underlying facts from disclosure. Patrick v. City of Chi., 111 F. Supp. 3d 909, 915

The plaintiffs offered various other objections in response to the interrogatories. They do not address
these in response to the motion to compel. Therefore, the plaintiffs have waived these objections and the
court will not consider them further.

1

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(N.D. Ill. 2015) (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)). However,
there are limits. Norwood v. Radtke, No. 07-cv-624-bbc, 2008 U.S. Dist. LEXIS 108765, at *5
(W.D. Wis. Feb. 26, 2008) (noting that a party cannot, by way of a contention
interrogatory, demand a copy of opposing counsel’s file); Fridkin v. Minn. Mut. Life Ins.
Co., No. 97 C 0332, 1998 U.S. Dist. LEXIS 1017, at *13 (N.D. Ill. Jan. 28, 1998) (noting that
a contention interrogatory cannot be used to compel counsel to disclose legal authority
for a claim).
The party invoking the work product protection bears the burden of establishing
that it applies. Towne Place Condo. Ass'n v. Phila. Indem. Ins. Co., 284 F. Supp. 3d 889, 899
(N.D. Ill. 2018). “Blanket claims of privilege or conclusory assertions are insufficient to
carry the burden.” Id. The plaintiffs offer little in the way of argument to support their
claims of work product and thus fail in their burden to invoke the doctrine’s
protections.
Overall, the court finds that the County defendants’ interrogatories (ECF No.
289) present fairly ordinary contention interrogatories. Therefore, the court will grant
the County defendants’ motion to compel and order the plaintiffs to provide full and
complete answers to each of the County defendants’ interrogatories.
IT IS THEREFORE ORDERED that the plaintiffs’ motion to compel (ECF No.
280) is denied.

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IT IS FURTHER ORDERED that the County defendants’ motion to compel (ECF
No. 288) is granted. The plaintiffs shall answer the County defendants’ interrogatories
(ECF No. 289) in full within 14 days of the date of this order.
IT IS FURTHER ORDERED that within seven days of this order, counsel for the
Milwaukee County defendants shall submit a statement as to the reasonable expenses,
including attorney’s fees, incurred in opposing the plaintiffs’ motion to compel and in
pursuing their own motion to compel. The plaintiffs shall respond within seven days
thereafter.
IT IS FURTHER ORDERED that the Milwaukee County defendants’ motion to
compel (ECF No. 282) is dismissed as moot, having been withdrawn by the defendants
(ECF No. 287).
Dated at Milwaukee, Wisconsin this 3rd day of May, 2019.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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