Nguyen v. Lowe's Home Ctrs., LLC
Nguyen v. Lowe's Home Ctrs., LLC
2015 WL 12672153 (S.D. Cal. 2015)
November 19, 2015
Stormes, Nita L., United States Magistrate Judge
Summary
The Court considered Plaintiff's motion to compel Defendant to respond to interrogatories, requests for admissions, and requests for production, granting in part and denying in part the motion. The Court also denied Plaintiff's request for fees and costs.
Dinhvu Nguyen, Plaintiff,
v.
Lowe's Home Centers, LLC, Defendant
v.
Lowe's Home Centers, LLC, Defendant
Case No.: 15CV1085 H NLS
United States District Court, S.D. California.
Signed
November 18, 2015
Filed November 19, 2015
Counsel
Pajman Jassim, Nathan Gillian Batterman, Jassim & Associates, APC, San Diego, CA, for Plaintiff.Brian J. Kim, Charles D. May, Tharpe & Howell LLP, Sherman Oaks, CA, for Defendant.
Stormes, Nita L., United States Magistrate Judge
ORDER DETERMINING JOINT MOTION FOR DISCOVERY DISPUTE NO. 1 (Dkt. No. 18)
*1 Before the Court is the parties' Joint Motion for Determination of Discovery Dispute No. 1. (Dkt. No. 18.) Plaintiff Dinhvu Nguyen (“Plaintiff”) moves to compel further responses and production to certain of his interrogatories, requests for admission, and requests for production. Defendant Lowe's Home Centers, LLC (“Defendant”) opposes Plaintiff's motion. For the reasons explained below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to compel further responses and production. The Court DENIES Plaintiff's request for fees and costs.
I. BACKGROUND
Plaintiff filed this premises liability and personal injury action in San Diego Superior Court on December 22, 2014. (Dkt. No. 1-2 at 3.) According to the Complaint, Plaintiff alleges he entered Defendant's store to purchase a display pergola. He alleges Defendant's employees and a sign on the pergola informed him that he must disassemble and remove the pergola. (Id. at 6.) He alleges that during the disassembly process, a cross-beam dislodged, fell on his head, and caused personal injuries. (Id.)
Defendant served written discovery on Plaintiff in February of 2015, and Plaintiff served his responses in April of 2015. (Dkt. No. 18 at 7.) Plaintiff served written discovery requests to Defendant on May 1, 2015. (Id.) On May 13, 2015, Defendant removed the action to this Court based on diversity jurisdiction. (Dkt. No. 1.)
Plaintiff served Defendant with written discovery on July 28, 2015. Following an agreed upon extension, Defendant served its responses on September 14, 2015. Plaintiff contends certain of Defendant's discovery responses are evasive and incomplete, and so on November 6, 2015, the parties filed the present Joint Motion for Determination of Discovery Dispute.[1] (Dkt. No. 18.) In particular, Plaintiff moves to compel further responses and production to numerous interrogatories, two requests for admission, and four requests for production. (Id.) He also seeks an order for reasonable expenses incurred in making this motion. (Id. at 11.)
II. LEGAL STANDARD
A party may obtain discovery regarding any nonprivileged information that is relevant to any claim or defense in his case. Fed. R. Civ. P. 26(b)(1). The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26. Bryant v. Ochoa, 2009 U.S. Dist. LEXIS 42339, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009). Once the party seeking discovery has established that his request meets this relevancy requirement, “the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Id. When a party believes the responses to his requests are incomplete, or contain unfounded objections, he may move the court for an order compelling disclosure. Fed. R. Civ. P. 37. The movant must show that he conferred, or made a good faith effort to confer, with the party opposing disclosure before seeking court intervention. Id.
III. DISCUSSION
a. Interrogatories
*2 Rule 33(a)(1) states, “Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 33(a)(1). Plaintiff moves to compel further responses to certain interrogatories, which the Court discusses below.
i. Interrogatory Nos. 7, 8, and 10
Plaintiff moves to compel further responses to interrogatories that seek information about how the incident occurred (Rog. No. 7), whether Defendant contends it is not liable for the incident (Rog. No. 8), and information about Defendant's second affirmative defense, which alleges that persons or entities other than Defendant are responsible for Plaintiff's injuries and damages (Rog. No. 10). In response, Defendant agreed to supplement its responses to these interrogatories in light of recent deposition testimony from a former Lowe's employee who witnessed the incident. (Dkt. No. 18 at 14.) Defendant also stated, however, that it would not supplement its response with information beyond the employee's testimony because it calls for premature disclosure of expert opinion. (Id.)
As a general rule, “a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert ...” Fed. R. Civ. P. 26(b)(4)(D). As such, to extent the interrogatories call for expert opinion information, Defendant does not need to provide supplemental information. Since Defendant has agreed to supplement its responses for these interrogatories, the Court DENIES AS MOOT Plaintiff's request to compel further responses to Interrogatory Numbers 7, 8 and 10.
ii. Interrogatory No. 14
Plaintiff's Interrogatory No. 14 asks Defendant to state all facts, identify all persons with knowledge, and identify all documents on which it bases its denial or special or affirmative defenses. (See Dkt. No. 18-1 (“Joint Statement”) at 6.) Defendant asserted objections and also counted this interrogatory as nine separate interrogatories because it seeks information about its general denial plus eight affirmative defenses. Defendant then served amended responses, and for each interrogatory responded that it “is unable to respond to this interrogatory at this time” because discovery is ongoing and it has not had a reasonable opportunity to investigate the underlying facts of the incident. (Id.)
Plaintiff moves to compel further responses on the ground that Defendant's response is evasive and incomplete. (Dkt. No. 18-1 at 12.) Defendant avers no further responses are warranted because it is entitled to fully investigate the matter through discovery to formulate its response. Defendant further contends Plaintiff failed to provide legal authority to support the position that Defendant must provide the information requested at this point in the litigation.
Having reviewed the parties' positions, the Court finds Defendant must supplement its response. Contrary to Defendant's contention, Plaintiff's citations to Rules 26 and 33 adequately support his position that he is entitled to a substantive response. Rule 26(e) imposes an obligation upon a party to timely supplement its discovery responses whenever a party learns its prior responses are incomplete or incorrect. Fed. R. Civ. P. 26(e). Moreover, Rule 33 expressly directs an answering party to provide its response within 30 days after being served with interrogatories, unless otherwise stipulated or ordered by the court. Fed. R. Civ. P. 33(b)(2). Although discovery is an ongoing process, a party must still answer interrogatories to the best of its ability regardless of whether its own investigations are still continuing. Barker v Bledsoe, 85 F.R.D. 545, 548 (W.D. Okla. 1979). A party may not simply delay answering interrogatories until shortly before trial when all facts are known and theories finalized. Id. (“Answers given at initial stages of discovery are not expected to be final, and are not binding to the party giving them.... Thus the duty of supplementing answers.” (citations omitted)). Accordingly, Plaintiff's motion to compel further response to Interrogatory No. 14 is GRANTED. Defendant must supplement its responses about its denial and affirmative defenses by providing the responsive information it currently knows, and may supplement its responses if further information is obtained during discovery.
iii. Counting the Number of Interrogatories
*3 An issue also arose regarding whether Plaintiff served more than the maximum number of interrogatories permitted under the Federal Rules. A party may not serve more than 25 interrogatories upon another party “unless otherwise stipulated or ordered by the court.” Fed. R. Civ. P. 33(a). The purpose of the numerical limit is “to reduce the frequency and increase the efficiency of interrogatory practice” because interrogatories “can be costly and may be used as a means of harassment.” See Adv. Comm. Note to 1993 Amend. to Rule 33. Although Rule 33(a) states that “discrete subparts” should be counted as separate interrogatories, it does not define that term.
Here, Plaintiff served interrogatories numbered one through twenty-five. The parties dispute, however, whether certain of the interrogatories contained discrete subparts such that Plaintiff served more than twenty-five interrogatories. As an initial matter, Defendant contends Plaintiff failed to meet and confer on this issue during their October 21, 2015 meet and confer teleconference before bringing the dispute before the Court. Although copies of meet and confer correspondence should not be included in joint motions for determination of discovery disputes (see Chmb. Rule VI.C.3), the parties included a letter memorializing their October 21, 2015 teleconference. That letter appears to reflect that the parties met and conferred about this issue. (Dkt. No. 18-3 at 23-26.) The Court will therefore consider the substance of the parties' dispute.
As mentioned above, when Defendant responded to Interrogatory No. 14 it counted that interrogatory as containing nine discrete subparts and counted them as separate interrogatories. As a result, Defendant only responded to interrogatory numbers one through seventeen. Defendant objected to responding to Plaintiff's remaining interrogatories because as of Interrogatory No. 17, Defendant had responded to twenty-five separate interrogatories.
In his motion to compel, Plaintiff contends that Interrogatory No. 14 contains at most only four discrete subparts, and so Defendant should be required to respond to additional interrogatories. (Dkt. No. 18 at 5-7.) In response, Defendant now contends that in light of recent authority it discovered, Makeaeff v. Trump University, Interrogatory No. 14 actually contains twenty-seven discrete subparts, which would even further buttress its position that Plaintiff exceeded the numerical limit. (Dkt. No. 18 at 16 (citing Makeaff, 2014 U.S. Dist. Lexis 94732 *1, 16 (S.D. Cal. 2014).)
Courts have recognized that “resolving the question of whether a subpart to an interrogatory is “discrete” under Rule 33 such that it should be counted separately can be a difficult task.” Williams v. Taser Intern., Inc., 2007 WL 1630875, at *2 (N.D. Ga. 2007). In this circuit, many courts have found persuasive the district court's reasoning in Safeco of America v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998). In Safeco, the court cited earlier decisions that set forth a test to determine this issue, which asks whether the particular subparts are logically or factually subsumed within and necessarily related to the primary question. Id., citing Ginn v. Gemini, Inc., 137 F.R.D. 320, 322 (D. Nev. 1991) and Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 685 (D. Nev. 1997) (“Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone?”) The Safeco court acknowledged the test set forth by the Kendall court, but also recognized that it fell short of a bright-line rule.
*4 The Safeco court then analyzed an interrogatory which asked the responding party to explain any denials in each of the requests for admission, and concluded it would “almost always be the case” that each corresponding interrogatory would have to be counted separately because requests for admission should be limited to singular facts. Id. (“Accordingly, an interrogatory that asks the responding party to state facts, identify witnesses, or identify documents supporting the denial of each request for admission contained in a set of requests for admissions usually should be construed as containing a subpart for each request for admission contained in the set.”). The court also noted this same reasoning would apply for an interrogatory that seeks facts related to declining to admit allegations in a complaint or an answer. Id. at 446 fn.3.
Here, the Court finds Interrogatory No. 14 contains at least nine discrete subparts – one subpart for Defendant's general denial plus eight subparts for the additional affirmative defenses. See Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133 (N.D. Cal. Apr. 1, 2013) (“[c]ourts in the Northern and Eastern Districts of California have concluded that a single interrogatory asking the bases of multiple affirmative defenses should count as separate interrogatories. [ ] This Court agrees with those decisions because each affirmative defense may be factually different” (citations omitted)). The Court reviewed Defendant's affirmative defenses in the Answer and finds that each defense may be factually and logically different. Thus, contrary to Plaintiff's contentions, this interrogatory cannot be grouped into less than nine discrete subparts.
Moreover, many courts have concluded an interrogatory that asks a party to identify facts, documents, and witnesses should count these items as discrete separate interrogatories. See e.g., Makeaff, at *18 (concluding the interrogatory “contains 3 discrete subparts [for facts, documents, and witnesses,] and these subparts must be multiplied by the number of RFAs that were not unqualified admissions”); Superior Commc'ns v. Earhugger, Inc., 257 F.R.D. 215, 218 (C.D. Cal. 2009) (request for facts, persons, and documents constitutes three distinct interrogatories); Hasan v. Johnson, 2012 U.S. Dist. LEXIS 21578, 13-14 (E.D. Cal. Feb. 21, 2012) (same); Paananen v. Cellco Partnership, 2009 U.S. Dist. LEXIS 98997 (W.D. Wash. Oct. 8, 2009) (“ ‘[A] demand for information about a certain event and for the documents about it should be counted as two separate interrogatories' because ‘knowing that an event occurred is entirely different from learning about the documents that evidence it occurred’ ”).
Applied here, Interrogatory No. 14 could arguably contain even more than nine discrete subparts. Defendant, however, originally counted Interrogatory No. 14 as containing nine discrete subparts and responded to that interrogatory as such. Even if the interrogatory arguably contains more than nine subparts, because Defendants must supplement their responses to Interrogatory No. 14 (see supra § III.a.ii), the Court finds good cause under Rule 26 for the discovery of this information.
Accordingly, Plaintiff's interrogatory numbers one through seventeen amounted to a total of at least twenty-five interrogatories when accounting for the discrete subparts. Thus, interrogatories eighteen through twenty-five exceeded the numerical limit. Defendant thus was not required to answer the interrogatories that exceeded the numerical limit.
iv. Interrogatory Nos. 18-25
The Court next turns to Plaintiff's request to compel Defendant to respond to interrogatory numbers eighteen through twenty-five. As mentioned above, Plaintiff exceeded the numerical limit of interrogatories, and did not seek Defendant's stipulation or leave of court to serve the additional interrogatories.[2] Defendant therefore was not obligated to respond to them.
*5 Plaintiff, however, also moved to compel Defendant to respond to the remaining interrogatories on grounds of fairness and equity, which the Court construes as a motion for leave to serve additional interrogatories. See Fed. R. Civ. P. 33(a)(1) (court may grant leave to serve additional interrogatories to the extent consistent with Rule 26(b)(1) and (2)); see also Fed. R. Civ. P. 26(b)(1) (court may order discovery of any relevant matter for good cause shown).
Plaintiff contends Defendant should answer the remaining interrogatories because Defendant obtained discovery responses from Plaintiff while the case was in state court, and then removed the action before its own responses were due. (Dkt. No. 18 at 8.) Thus, Plaintiff avers, “Defendant has effectively obtained two opportunities to propound discovery on Plaintiff while Plaintiff has been limited to only one discovery opportunity under the Federal rules, which are stricter than those of the California State Court.” (Id. at 9.) As an example, Plaintiff cites to Interrogatory No. 18, which asks Defendant to provide information about facts, documents and witnesses for each of its responses that were not unqualified admissions. He contends Defendant propounded this interrogatory to Plaintiff while the action was in state court, and Plaintiff responded. Yet Plaintiff did not receive Defendant's response to this interrogatory because the case was removed. He contends Defendant thus has an unfair and prejudicial advantage and Plaintiff must have the opportunity to propound and receive similar discovery. (Id.)
Defendant responds that Plaintiff's arguments appear rooted in his objection to the case being removed to federal court, but Defendant had a right to remove under diversity jurisdiction and did so. Defendant contends Plaintiff's argument is an attempt to confuse the issues and is a red-herring. (Dkt. No. 18 at 17.)
The present circumstances do not warrant compelling Defendant to respond to the additional interrogatories that exceeded the numerical limit. Plaintiff did not provide the Court with any authority to support the proposition that a plaintiff whose case is removed to federal court should be entitled to the same type of discovery it could have obtained in state court. Defendant properly removed the action within thirty days of receipt of the “other paper” in which it could first ascertain the case is removable under 28 U.S.C. 1446(b). (Dkt. No. 1 at 9.) The fact that Defendant's window of opportunity to remove this action to federal court occurred before Defendant's discovery responses were due is not necessarily attributable to some unfair tactical advantage on Defendant's part. Accordingly, the Court DENIES Plaintiff's motion to compel further responses to Interrogatory Nos. 18-25.
b. Requests for Admission (“RFA”)
The Court next turns to Plaintiff's motion to compel further responses to certain requests for admissions. Rule 36 permits a party to “serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to... facts, the application of law to fact, or opinions about either; and ... the genuineness of any described documents.” Fed. R. Civ. P. 36(a)(1).
i. RFA No. 2
This RFA asks Defendant to admit or deny the cross-beams of a pergola for sale at its store dislodged and struck Plaintiff in his head and shoulders. Plaintiff contends Defendant's initial response is evasive and non-responsive. In response to Plaintiff's motion, Defendant stated that it agrees to supplement its response to this request. (Dkt. No. 18 at 18.) Defendant also stated, however, that it would not supplement its response with information beyond the employee's testimony because it calls for premature disclosure of expert opinion.
*6 To extent the interrogatories call for expert opinion information, Defendant does not need to provide supplemental information. Fed. R. Civ. P. 26(b)(4)(D) (as a general rule, “a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert ...”). Since Defendant agreed to supplement its response to this request, the Court DENIES AS MOOT Plaintiff's request to compel further a response to RFA No. 2.
ii. RFA No. 3
This RFA asks Defendant to admit or deny Plaintiff was injured when the falling cross-beams of the pergola involved in the incident struck him on his head and shoulder. Defendant asserted objections and responded that “[a]fter a reasonable inquiry, the information it knows or can readily obtain is insufficient to enable it to admit or deny this Request. However...upon information and belief, Defendant admits that at the time of the incident, Plaintiff appeared to have a scratch and bump on the forehead area, however the nature and extent of the injury is unknown.” (Dkt. No. 18-1 at 29.) Plaintiff contends Defendant's response is evasive and non-responsive, and contends it failed to respond in a straightforward manner. (Dkt. No. 18 at 10.)
The Court disagrees with Plaintiff and finds Defendant's response adequately addressed the request. Rule 36 provides in relevant part that “when good faith requires that a party qualify an answer ... the answer must specify the part admitted and qualify or deny the rest.” Fed. R. Civ. P. 36(a)(4). “The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Id.
Here, Defendant's response conforms to Rule 34. In particular, Defendant provided a qualified admission that specified the part it admitted: “Plaintiff appeared to have a scratch and bump on the forehead area,” and then qualified the rest: “however the nature and extent of the injury is unknown.” (Dkt. No. 18-1 at 29-30.) Defendant also asserted a lack of information after making a reasonable inquiry, which is also appropriate under the Rule. Accordingly, the Court DENIES Plaintiff's motion to compel a further response to RFA No. 3.
c. Requests for Production (“RFP”)
Under Rule 34 of the Federal Rules of Civil Procedure, a party may serve a request to produce all relevant documents or electronically stored information, or any designated tangible things, in the responding party's “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). A party may also serve a request to permit entry onto property possessed or controlled by the responding party to “inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” Fed. R. Civ. P. 34(a)(2).
i. RFP No. 8
In RFP No. 8, Plaintiff requests Defendant to produce surveillance footage from its store depicting the incident on or about January 5, 2013. Plaintiff seeks to compel a further response because he received only six videos and he claims none of them depict the incident at issue. Plaintiff claims his counsel's office sent someone to the store and took photographs of the store cameras, and based on these photos they believe Defendant has not provided all surveillance video depicting the incident. Defendant responds that Plaintiff's inspection of their property was unauthorized because he failed to serve a notice of the request to inspect and photograph the property as required under Rule 34(a)(2). Defendant further avers it conducted a diligent search and reasonable inquiry and already produced all related videos under penalty of perjury. (Dkt. No. 18 at 19; Dkt. No. 18-1 at 32.) Defendant avers no videos were taken of the incident because none of the cameras were pointed in the direction of the incident. (Id.)
*7 The Court agrees with Defendant that Plaintiff should have served a request to inspect the store and to photograph the cameras located inside of the store. Fed. R. Civ. P. 34(a)(2). To the extent Plaintiff wishes to conduct a proper inspection, he needs to make the request in accordance with Rule 34. Nonetheless, in light of Plaintiff's assertions, and to potentially obviate the need for the parties to undergo a site inspection, the Court will require Defendant to provide Plaintiff a declaration from the individual who conducted the search for the surveillance video. The declaration must provide detailed and specific information about (a) the procedures he or she used to search for the surveillance videos of the incident, (b) explain how he or she determined the incident was not recorded, and (c) explain how he or she confirmed that none of the cameras were pointed in the direction of the incident at that time. In the alternative, to the extent additional surveillance video is found during this process, Defendant must produce it. Accordingly, the Court GRANTS Plaintiff's request to compel a further response to RFP No. 8.
ii. RFP Nos. 12 and 18
Plaintiff seeks to compel further responses to his request for Defendant's employee handbook that was in effect at the time of the incident (RFP No. 12), and documents pertaining to policy or procedure manuals in effect at the time of the incident (RFP No. 18). He contends Defendant is avoiding producing its manuals and handbooks, which likely contain relevant information about customer safety and employee responsibility. (Dkt. No. 18 at 11.)
Defendant avers Plaintiff's requests are overbroad and seek irrelevant information to the claims or defenses in this case. (Dkt. No. 18 at 20.) Defendant also contends that on the day before Plaintiff filed the motion to compel, it produced its safety policies and safety training course materials. Defendant states Plaintiff has now received all relevant non-privileged material and so these requests are now moot. (Dkt. No. 18-1 at 34, 37.)
The Court is concerned that Defendant initially represented to Plaintiff in its discovery responses that it did not have any responsive customer safety and safety training documents (Dkt. No. 18-1 at 33, 35), and yet Defendant produced such documents on the date of the former employee's deposition. (Id. at 34, 36.) Nonetheless, based on the papers before the Court, Plaintiff essentially seeks information about customer safety and employee training, and Defendant has now notified Plaintiff that it produced all relevant non-privileged responsive material. Also, Plaintiff did not provide a basis or argument for why any other types of policies or procedures contained in the handbooks or manuals may be relevant or likely to lead to admissible evidence. Accordingly, the Court DENIES AS MOOT Plaintiff's request to compel further responses to RFP Numbers 12 and 18.
iii. RFP No. 19
Plaintiff's RFP No. 19 seeks documents regarding any claims or complaints filed against Defendant in the last five years. Plaintiff contends Defendant improperly and unilaterally narrowed this request to approximately three years instead of five, and to similar claims at the store instead of any claims or complaints. (Dkt. No. 18-1 at 38.)
Plaintiff has the burden to demonstrate why the scope of his request is relevant. Bryant v. Ochoa, 2009 WL 1390794, at *1. He has not done so. Plaintiff does not adequately explain why claims or complaints by others in different stores in different locations and alleging different circumstances would be relevant to his negligence claim or lead to admissible evidence here. Indeed, absent such an explanation, the Court does not see how information about claims or complaints that are not common to those asserted by Plaintiff would be relevant. Accordingly, the Court DENIES Plaintiff's motion to compel a further response to RFP No. 19.
d. Plaintiff's Request for Fees and Costs
When a motion to compel is granted, a court must generally require the party or deponent whose conduct necessitated the motion to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. Fed. R. Civ. P. 37(a)(5)(A). But there is an exception if “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(iii). The decision whether to grant fees and costs is committed to the court's desertion. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 1992) (discussing the Court's “wide latitude” when imposing sanctions under Rule 37).
*8 Here, Defendant provided substantial information in response to many of the discovery requests. Although the Court is requiring supplemental responses to some of the requests, the Court also finds that many of Defendant's responses were substantially justified. Therefore, the Court exercises its discretion and DENIES Plaintiff's request for fees and costs.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to compel further responses to certain of his interrogatories, requests for admissions and requests for production. The Court DENIES Plaintiff's request for fees and costs. The Court's rulings as to Plaintiff's requests to compel are as follows:
a. Plaintiff's motion to compel further responses to Interrogatory Numbers 7, 8, and 10 are DENIED AS MOOT;
b. Plaintiff's motion to compel further responses to Interrogatory Number 14 is GRANTED. Defendant must supplement its response to Interrogatory Number 14 and its subparts;
c. Plaintiff's motion to compel further responses to Interrogatory Numbers 18 through 25 are DENIED;
d. Plaintiff's motion to compel further responses to RFA Number 2 is DENIED AS MOOT;
e. Plaintiff's motion to compel further responses to RFA Number 3 is DENIED;
f. Plaintiff's motion to compel further responses to RFP Number 8 is GRANTED. Defendant must provide a declaration regarding the video surveillance recording system in accordance with the instructions contained in this order or alternatively, produce any additional responsive video footage to the extent it is found;
g. Plaintiff's motion to compel further responses to RFP Numbers 12 and 18 are DENIED AS MOOT; and
h. Plaintiff's motion to compel further responses to RFP Number 19 is DENIED.
IT IS SO ORDERED.
Dated: November 18, 2015.
Footnotes
The parties previously attempted to file their joint motion for determination of this dispute on October 29, 2015, which was the deadline for the parties to file the request for judicial intervention regarding the dispute. However, the parties had difficulty coordinating the joint briefing and filing of the motion. The Court directed the parties to re-file the motion by November 6, 2015. (See Dkt. No. 17.) They did so, and thus the Court deems the motion as timely filed.
The parties also dispute whether Plaintiff's Interrogatory No. 18 contained six discrete subparts, as asserted by Plaintiff, or seventy-two discrete subparts, as asserted by Defendant. (Dkt. No. 18 at 6-7, 16.) Interrogatory No. 18 asks Defendant to provide information about facts, documents and witnesses for each of its responses that were not unqualified admissions. The Court need not analyze the number of discrete subparts in Interrogatory No. 18, however, because Plaintiff already exceeded the numerical limit of interrogatories as of Interrogatory No. 17.