when filed, even if this date is beyond the discovery cut-off set for
C. Statutory limit on interrogatories
Plaintiff requests that the Court require Defendant to answer
Interrogatory Number 24 as it relates to Request for Admission Number 1
and Number 2. Request for Admission Number 1 asks Defendant to admit that
she is a public figure as defined in Curtis Publishing Co. v. Butts,
388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Request for
Admission Number 2 asks Defendant to admit a specific contract required
that she or Pippi, Inc. obtain written permission from Playboy
Enterprises before she used her name with the designation "Playmate of
the Year." Interrogatory Number 24 states "If any of Your responses to
the requests for admission served with these interrogatories are not
unqualified admissions, please State All Facts upon which those responses
are based." In Defendant's Response to Plaintiff's Requests for
Admissions, Defendant simply denied the Requests for Admissions.
Requests for admissions cannot be used to compel an admission of a
conclusion of law. Reliance Ins. Co. v. Marathon LeTourneau Co., 152
F.R.D. 524, 525 (S.D.W.Va. 1994) In addition, the Advisory Committee
Notes to the 1970 Amendment of Federal Rule of Civil Procedure 36 states
that although an admission of a matter involving the application of law
to fact may narrow the issues for trial, "requests for admission
involving the application of law to fact may create disputes between the
parties which are best resolved in the presence of the judge after much or
all of the other discovery has been completed."
Plaintiff asserts that Defendant never objected to these Requests for
Admissions in any way. Instead Defendant denied the allegation, but
refuses to respond to Interrogatory Number 24 and provide the factual
basis for her denial. The Court determines that both of these Requests
for Admissions requires Defendant to make a conclusion of law. However,
Defendant must either provide factual information to support a denial, or
appropriately object to the Requests. Defendant shall submit supplemental
responses to Requests for Admission Numbers 1 and 2, and Interrogatory
Number 24 as it relates to these Requests, outlining the basis for an
admission or denial, or the basis for an objection to these Requests.
These supplemental responses shall be produced by August 20, 1999.
Interrogatory Number 25 asked Defendant to amend any responses to
previous interrogatories that were no longer accurate or complete. Such an
interrogatory is unnecessary. The Court reminds both parties that they
are under a continuing duty to amend their prior responses to
interrogatories, requests for production, or requests for admission if
the party learns that the earlier response is in some material respect
incomplete or incorrect and if the additional or corrective information
has not otherwise been made known to the other pates during the discovery
process or in writing. Fed.R.Civ.P. 26(e)(2).
D. Plaintiff's request for three additional interrogatories
Plaintiff requests that the Court allow Plaintiff to propound three
additional interrogatories on Defendant. Plaintiff claims that the need
for these additional interrogatories is to defend against Defendant's
claims of emotional distress, which is due, in part, from attorneys' fees
and costs Defendant has incurred in this litigation. Plaintiffs three
additional interrogatories request information related to determining the
amount of money Defendant has paid to her attorneys, the amount of fees
she has incurred to date, and the amount of fees that has been paid by
In response to Plaintiffs request, Defendant's counsel stated in court
during the hearing on this proceeding that these additional
interrogatories are not necessary because Defendant does not intend to
evidence of attorneys' fees paid or incurred by Defendant to support her
claim of emotional distress. Therefore this Court finds it unnecessary to
make any ruling on this issue.
Plaintiff shall submit a declaration supporting its assertions that
deleted e-mail recovery is feasible from a computer's hard drive.
Presuming that Plaintiff can provide such a declaration, the Court orders
that a "mirror image" of Defendant's hard drive will be made by a
computer specialist trained in the area of data recovery. This Court
appointed specialist will act as an Officer of the Court. The "mirror
image" copy will be given to Defendant's attorney to print, review, and
produce to Plaintiff all relevant, requested, and non-privileged
documents. Plaintiff will pay for the costs associated with the
production of the "mirror image." Defendant will produce to Plaintiff the
1997 corporate income tax return for Terri Welles, Inc. and the 1998
corporate tax return when filed with the Internal Revenue Service. In
addition, Defendant will produce to the Court her 1996, 1997, and 1998
personal income tax returns for in camera review. Defendant shall submit
supplemental responses to Interrogatory Number 24 and Requests for
Admission Numbers 1 and 2, either appropriately objecting to the Requests
or setting forth the factual basis for Defendant's admittance or denial.
Based on Defendant's in court statements, the Court finds it unnecessary
to make any ruling on whether Plaintiff can propound three additional
interrogatories relating to Defendant's attorneys' fees.
IT IS SO ORDERED.