United States District Court, N.D. California, San Francisco Division
DISCOVERY ORDER [RE: ECF NO. 62]
BEELER UNITED STATES MAGISTRATE JUDGE
Background and Current Dispute
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.
parties have a discovery dispute. The defendant has
propounded, and the plaintiff has refused to answer, ten
interrogatories. These are so-called "contention
interrogatories." 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. 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
interrogatories are governed primarily by procedural Rule
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
Discussion & Decision
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" 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.
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
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 ...