United States District Court, S.D. California
ORDER REGARDING THE PARTIES' DISCOVERY LETTER BRIEFS DATED JANUARY 27, 2014
PETER C. LEWIS, Magistrate Judge.
Plaintiff filed his complaint on March 13, 2013, alleging three causes of action, in short: (1) personal injury damages, pursuant to the Federal Employer's Liability Act 45 U.S.C. section 51, et seq.; (2) damages resulting from wrongful discipline, pursuant to 49 U.S.C. section 20109; and (3) wrongful discharge. (Doc. 1.) Defendant answered the complaint on August 16, 2013, raising thirty-nine affirmative defenses. (Doc. 4.)
The parties supplied the Court with letter briefs on the issue of whether Defendant should be compelled to answer special interrogatories one through four, or produce documents prior to Defendant's first deposition of Plaintiff, scheduled for February 4, 2014. Now before the Court is this issue, argued in letter briefs received by the Court on January 27, 2014.
A. Contention Interrogatories
On October 24, 2013, Plaintiff Propounded four special interrogatories pursuant to Fed.R.Civ.P. 33. (See Plaintiff's Brief, Exhibit 6.) Defendant objected to interrogatories one, two, and four, primarily because, as contention interrogatories propounded early in discovery, they were "premature"; to wit, "Neither substantial discovery nor testimonial discovery has been completed." (Plaintiff's Brief, Exhibit 7, at 3-5.) In addition, Defendant claims responding to the third interrogatory would, "necessarily require a legal opinion and the disclosure of work product." (Id. at 5.)
At the outset, it is worth noting that no party has an absolute right to have answers to any kind of interrogatory. Fed.R.Civ.P. 33(b). An interrogatory must be "otherwise proper, " which is determined by considering, inter alia, whether it is interposed for any improper purpose, or whether it is "unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversey, and the importance of the issues at stake in the litigation." (See Fed.R.Civ.P. 26(g).)
Generally speaking, contention interrogatories ask the receiving party to state the factual bases for its allegations, as Plaintiff's have done here. (See, e.g., Plaintiff's Brief, Exhibit 6, at 3, "state all material facts in support of your contention.") The purpose of contention interrogatories "is not to obtain facts, but rather to narrow the issues that will be addressed at trial and to enable the propounding party to determine the proof required to rebut the respondent's position." Lexington Ins. Co. v. Commonwealth Ins. Co., C98-3477CRB (JCS), 1999 WL 33292943, *7 (N.D.Cal. Sept. 17, 1999). Federal Rule of Civil Procedure 33 states that "[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time." Fed.R.Civ.P. 33(a)(2). There is no dispute that, at some time, the party answering contention interrogatories will have to respond fully to these discovery requests. However, many courts have found that, within the framework of Rule 33, contention interrogatories need not be answered until the substantial completion of pretrial discovery. (See, e.g., In re eBay Seller Antitrust Litig., C 07-1882 JF (RS), 2008 WL 5212170 (N.D. Cal. Dec. 11, 2008), citing City & County of San Francisco v. Tutor-Saliba Corp. , 218 F.R.D. 219, 222 (N.D.Cal.2003) (determining that plaintiffs need not respond to defendants' broad contention interrogatories at the early stage of litigation) and Fischer & Porter Co. v. Tolson , 143 F.R.D. 93, 96 (E.D. Pa. 1992) (denying contention interrogatories where substantial discovery had not been completed).)
Accordingly, courts are reluctant to allow contention interrogatories, especially when the responding party has not yet obtained enough information through discovery to respond. (See, e.g., In re Convergent Technologies Securities Litigation , 108, F.R.D. 328, 338 (1985) ("the propounding party must present specific, plausible grounds for believing that securing early answers to its contention questions will materially advance the goals of the Federal Rules of Civil Procedure." accord United States v. Bazaarvoice, Inc., C 13-00133 EMC LB, 2013 WL 1739472 (N.D. Cal. Apr. 22, 2013); but c.f., Cable & Computer Tech., Inc. v. Lockheed Saunders, Inc. , 175 F.R.D. 646, 652 (C.D. Cal. 1997) ("this Court prefers to consider contention interrogatories in the same manner it would consider any interrogatory, placing the burden on the party opposing discovery.") Courts recognize, however, that contention interrogatories, when served after substantial discovery is complete, may be appropriate. See, e.g., Tennison v. City & Cnty. of San Francisco , 226 F.R.D. 615, 618 (N. D.Cal.2005) (granting motion to compel responses to contention interrogatories where "discovery is nearly complete, and hence Plaintiff is in a position to provide meaningful answers"); Lexington Ins. Co., supra ("courts have also recognized that properly timed contention interrogatories may in certain cases be the most reliable and cost-effective discovery device, which would be less burdensome than depositions at which contention questions are propounded") (quotation omitted).
Further, even when contention interrogatories are permitted, they "are often overly broad and unduly burdensome when they require a party to state every fact' or all facts' supporting identified allegations or defenses." Haggarty v. Wells Fargo Bank, N.A., 10-2416 CRB (JSC), 2012 WL 4113341, *2 (N.D.Cal. Sept. 18, 2012) (quoting Mancini v. Insurance Corp. of New York, 2009 WL 1765295 *3 (S.D. Cal. June 18, 2009). In such cases, all facts' is generally construed as those facts which are material. See Mancini, 2009 WL 1765295, supra.
Here, each of Plaintiff's interrogatories asks for "all material facts upon which [Defendant's] contention is based." (See Plaintiff's Brief, Exhibit 6.) Plaintiff agrees that his interrogatories, "may be understood to refer to the principle or material facts' that support the allegation referenced by the interrogatory." (Plaintiff's Brief, at 2.) Therefore, Plaintiff's interrogatories fit within one of the many general forms of contention interrogatories. (See In re Convergent, 108 F.R.D., 332.)
Plaintiff argues that Defendant would glean "an unfair litigation advantage" by taking Plaintiff's deposition before answering the contention interrogatories it propounded, and that Defendant has a duty to investigate and respond. (Plaintiff's Brief, at 4.) Further, Plaintiff argues that early disclosure of factual bases will narrow the issues. (Id.) Lastly, Plaintiff argues that Federal Rule of Civil Procedure 11 requires that Defendant must have some factual basis for its affirmative defense of contributory negligence at this time. (Id.)
Defendant argues that its discovery and investigation are nascent, and there is no pretext in delaying its answer to Plaintiff's contention interrogatories. (Defendant's Brief, at 2.) For example, Defendant states that it has not had the opportunity to take Plaintiff's deposition or medical examination, and therefore it would be "impossible" to state all facts which support its contentions. (Defendant's Brief, at 2.) Further, Defendant correctly points out that, because there are eight more months of discovery in which it may supplement its responses, there is no reason to be "hemmed into a ...