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Grouse River Outfitters Ltd. v. Netsuite, Inc.

United States District Court, N.D. California, San Francisco Division

April 6, 2017

NETSUITE, INC., Defendant.

          DISCOVERY ORDER [RE: ECF NO. 62]



         1. Background and Current Dispute

         This is a breach-of-contract and fraud case. The plaintiff purchased from the defendant an integrated system for managing its retail sporting-goods business. The plaintiff alleges that the system was installed late and has never worked as promised. (That is a rough digest of the dispute, but it will do for immediate purposes.) The operative complaint is the Second Amended Complaint.[1]

         The parties have a discovery dispute. The defendant has propounded, and the plaintiff has refused to answer, ten interrogatories. These are so-called "contention interrogatories."[2] The defendant has propounded them in the early stages of discovery. The disputed queries are all slight variations on a narrow theme. They all ask the plaintiff to identify "all facts" that support some given claim - such as the basic claims for fraud and breach of contract, and then" associated allegations of damage.[3] The defendant argues that these questions will help it "to better understand" the "prolix" complaint and that they "try to narrow the issues for both discovery and trial."[4]

         2. Governing Law

         Contention interrogatories are governed primarily by procedural Rule 33(a)(2):

An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An 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). "Courts using their Rule 33(a)(2) discretion generally disfavor contention interrogatories asked before discovery is undertaken." In re eBay Seller Antitrust Litig., No. C07-1882 JF (RS), 2008 WL 5212170, at *1 (N.D. Cal. Dec. 11, 2008) (citing Tennison v. City- & County of San Francisco, 226 F.R.D. 615, 618 (N.D. Cal. 2005)). "In fact, courts tend to deny contention interrogatories filed before substantial discovery has taken place, but giant them if discovery almost is complete." Id. (citing Fischer & Porter Co. v. Tolson, 143 F.R.D. 93, 95 (E.D. Pa. 1992); In re Convergent Techs. Sees. Litig., 108 F.R.D. 328, 332-38 (N.D. Cal. 1985)). Thus, as a general rale, a party moving to compel responses to contention interrogatories at an early stage in litigation must show that the responses would "contribute meaningfully" to one of the following: (1) clarifying the issues in the case; (2) narrowing the scope of the dispute; (3) setting up early settlement discussion; or (4) exposing a substantial basis for a motion under Rule 11 or Rule 56. See Convergent Technologies, 108 F.R.D. at 337. "These guidelines are not to be applied rigidly and so any decision must be made on a case by case basis." HTC Corp. v. Tech. Props. Ltd., 2011 WL 97787, *2 (N.D. Cal. Jan. 12, 2011)); see eBay Seller, 2008 WL 5212170 at *1 and n. 3 (acknowledging "non-rigid rale").

         3. Discussion & Decision

         The plaintiff need not answer these interrogatories now. The court sees no especial benefit to such "all facts" questions so early in discovery. To the contrary, they may be unproductive and wasteful. The court has twice entertained motions to dismiss earlier iterations of this complaint. The court is sympathetic to the defendant's "straggling to deal"[5] with this long and detailed pleading. Effectively asking the plaintiff to repeat the allegations of that complaint, however, does not seem at all likely to address this problem. Put differently, the interrogatories are not "proportional to the needs of the case" - at least at this juncture. See Fed. R. Civ. P. 26(b)(1).

         The fullness of the complaint indeed weighs against early contention interrogatories. The Convergent Technologies court observed:

If a complaint presents a relatively detailed specification of the real world events giving rise to it, and proceeds on relatively well established legal theories, an attempt to justify early use of contention interrogatories on the ground that answers would clarify the issues would not be especially persuasive.

Convergent Technologies, 108 FR.D. at 337. This observation applies here. Whatever else maybe said of it, the complaint gives abundantly "detailed specifications" of the underlying facts and advances "established legal theories." The proposed interrogatories - at this stage of the case - effectively ask the plaintiff to repeat its allegations. There is little value in that. Cf. eBay Seller, 2008 WL 5212170 at *2 ("It is not apparent how these broad interrogatories, particularly those that track plaintiffs 'complaint, will serve ...

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