Sanjeev Lath v. Manchester Police Department, et al. Case No. 16-cv-534-LM United States District Court, D. New Hampshire Filed September 14, 2018 Counsel Sanjeev Lath, pro se Johnstone, Andrea K., United States Magistrate Judge SUMMARY ORDER *1 At the September 11, 2018 case management conference, the court ruled on several pending motions from the bench. This order summarizes those rulings. Because the court stated the substantive basis for each ruling on the record at the conference, this order is limited to the rulings themselves unless otherwise noted. A. Lath’s Motion to Compel (doc. no. 233) Plaintiff Sanjeev Lath seeks to compel discovery from Amica Mutual Insurance Company related to his first set of interrogatories (doc. no. 233-4), his first request for production (doc. no. 233-3), and his first request for production of electronically stored information (ESI) (doc. no. 233-2). The motion presents three major issues: (1) whether Lath exceeded the 25-interrogatory limit imposed in the scheduling order; (2) whether Amica’s substantive responses to Lath’s discovery requests are adequate; and (3) whether Amica should be sanctioned for spoliation. As an initial matter, the court denies Lath’s request for spoliation sanctions as premature. Lath can re-raise this issue in an appropriate pretrial motion. As to interrogatory number, the court rules that Lath has exceeded the 25-interrogatory limit. As discussed in greater detail on the record, the court counts Lath’s interrogatories as follows: • Interrogatory AM-1 is two discrete interrogatories. • Interrogatory AM-2 is six discrete interrogatories. • Interrogatory AM-3 is four discrete interrogatories. • Interrogatory AM-4 is two discrete interrogatories. • Interrogatory AM-5 is eight discrete interrogatories. • Interrogatory AM-6 is 15 discrete interrogatories. When totaled, this equals 37 discrete interrogatories, which exceeds the 25-interrogatory limit by 12 interrogatories. With respect to Amica’s substantive responses to Lath’s interrogatories, the court rules at the outset that Lath has failed to demonstrate the relevance of any of his insurance claims other than Claim # 500026646551, the one central to this action. The court further rules that Lath has failed to demonstrate how discovery into those other claims would be proportional to the needs of the case. With this in mind, the court specifically rules as follows with respect to Amica’s substantive responses to Lath’s interrogatories: • Lath’s motion is denied as to Interrogatory AM-1, as Amica fully responded to that interrogatory. • Lath’s motion is granted in part and denied in part as to Interrogatory AM-2. It is granted solely to the extent that Amica agreed at the conference to review its response to subpart (d)(ii) and supplement that response if necessary. It is otherwise denied, as Lath has failed to demonstrate this interrogatory seeks information that is relevant to the claims or defenses or proportional to the needs of the case. • Lath’s motion is granted in part and denied in part as to Interrogatory AM-3. To the extent Amica’s answers reference initial disclosures, discovery responses, or deposition transcripts, the court directs Amica to identify to Lath which portions of those disclosures, responses, and transcripts are responsive. Similarly, to the extent Amica references the attorney-client privilege or work-product doctrine or otherwise references its privilege log, the court directs Amica to identify which documents, otherwise privileged, are responsive. Lath’s motion is otherwise denied as to Interrogatory AM-3. As discussed in greater detail on the record, Amica has responded in full to all of the remaining subparts except subpart (g). And in subpart (g), Lath seeks information that is beyond the scope of a proper interrogatory. *2 • Lath’s motion is granted as to Interrogatories AM-4 and AM-5 insofar as those interrogatories seek information related to Claim # 500026646551. • Lath’s motion is denied as to Interrogatory AM-6. The first subpart of that interrogatory constitutes Lath’s 23rd, 24th, and 25th discrete interrogatories. But that subpart does not seek information related to Claim # 500026646551. The remaining subparts exceed the 25-interrogatory limit. Lath’s motion is granted in part and denied in part to the extent it relates to his requests for production. Lath’s motion is denied as moot with respect to Request AM-1, as Lath withdrew that request on the record. Lath’s motion is granted as to Request AM-2 solely to the extent Amica agreed at the conference to provide Lath with Peter Hilchey’s dates of employment, but is otherwise denied as moot because Lath withdrew the remainder of that request on the record. Lath’s motion is granted as to Request AM-4 insofar as Amica referred generally to its initial disclosures, other discovery responses, deposition transcripts, or its privilege log and to the extent Amica agreed to produce to Lath any documents addressing when Amica retained Sebastian Bonjourno as an expert. Lath’s motion is otherwise denied as to Request AM-4, as Amica represented on the record that it had produced all responsive documents in its possession. Lath’s motion is denied to the extent it seeks to compel Amica to supplement its ESI production because Amica represented on the record that it has already produced all such information to the extent it is not privileged. As previously discussed, Lath’s arguments with respect to spoliation are premature. Though the court did not discuss it on the record, Lath’s motion to compel is also denied to the extent it seeks leave to file a motion for sanctions against Amica. While Rule 37(a)(5)(C) allows a court to apportion reasonable expenses when a motion to compel is granted in part, no such apportionment is appropriate here as Lath’s motion is granted only on a limited basis and there is no indication Amica acted in bad faith or to thwart discovery. Additionally, none of the sanctions identified in Rule 37(b) are currently warranted, as the First Circuit has held that a party must first have violated a discovery order before being sanctioned under that rule. See R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1994). In sum, Lath’s motion to compel is granted in part and denied in part. Amica shall have 30 days from the date of the conference to supplement its discovery responses consistent with the above and the discussion at the conference. B. Lath’s Compliance with the Court’s Orders on Amica’s Motions to Compel In mid-March 2018, the undersigned granted in substantial part two motions to compel filed by Amica and ordered Lath to respond to several contention interrogatories and to supplement his initial disclosures. See doc. no. 282; doc. no. 283. Though Lath initially represented on the record that he had complied with these orders, he ultimately agreed to withdraw his initial disclosures and to provide Amica with new initial disclosures by October 1, 2018. Based on his agreement, the court orders that Lath do so by that date. To the extent Lath fails to provide Amica with initial disclosures by that date or Amica believes his initial disclosures are inadequate or otherwise objectionable, Amica may file a motion to compel, a motion for sanctions, or any other appropriate discovery motion without further leave of the court. The same is true to the extent Amica believes Lath has failed to adequately answer Amica’s contention interrogatories as previously ordered by the court. C. BMS CAT’s Motion to Compel (doc. no. 286) *3 BMS CAT, the other remaining defendant in this case, moves to compel Lath to supplement his initial disclosures and discovery responses. BMS CAT’s motion in large part presents the same issues with respect to contention interrogatories and initial disclosures that were raised in Amica’s earlier motions to compel. The only exception is that BMS CAT also contends that Lath’s document production is incomplete because Lath failed to timely supplement his response to one document request despite indicating that he would do so and improperly referred to a several-hundred-page collection of documents in response to another document request. At an April 2, 2018 case management conference, Lath agreed to provide BMS CAT with supplemental initial disclosures, supplemental interrogatory answers, and supplemental document productions no later than April 14, 2018. See doc. no. 292. The court scheduled a discovery status conference for April 24, 2018 to address any outstanding issues with respect to those materials and the discovery ordered in response to Amica’s motions to compel. Id. at 1-2. That conference did not occur, as Lath filed an interlocutory appeal to the First Circuit and the case was accordingly stayed. The First Circuit dismissed Lath’s appeal on June 14, 2018, and a mandate issued on August 1, 2018. BMS CAT contended at the September 11 conference that Lath still has not produced any of the materials sought in its motion to compel. While Lath initially represented that he had provided BMS CAT with those materials, he ultimately agreed, as he did with Amica, to withdraw his current initial disclosures and to provide BMS CAT with new initial disclosures by October 1, 2018. In light of this agreement, the court orders Lath to provide BMS CAT with compliant initial disclosures by that date. The court denies BMS CAT’s motion to compel as moot solely to the extent it seeks to compel Lath to supplement his initial disclosures, without prejudice to BMS CAT filing a motion to compel, motion for sanctions, or other appropriate discovery motion without further leave of the course if it believes Lath has not fully complied with Rule 26(a)(1) as of October 1, 2018. The court otherwise holds BMS CAT’s motion to compel in abeyance and orders Lath to respond to that motion no later than September 18, 2018.[1] D. Motions for Leave (doc. nos. 291, 353, 354, 356, and 357) Each party filed one or more motions for leave to file motions, as required by the filing restrictions in this case. See Aug. 24, 2017 Procedural Order (doc. no. 133) at 1. Consistent with the discussion on the record, the court rules as follows with respect to those motions. Lath’s first motion for leave (doc. no. 291) is granted in part and denied in part. Requests 1, 2, 3, 8, and 9 are denied as moot in light Judge McCafferty’s April 17, 2018 order dismissing Gerard Dufresne as a defendant, see doc. no. 300, and her subsequent order denying Lath’s motion for reconsideration, see Aug. 29, 2018 Endorsed Order. Request 4 is denied as premature, as the court has granted Amica 30 days to supplement its responses to Lath’s interrogatories. Request 5 is denied without prejudice, as Lath has not propounded a discovery request seeking an inventory from BMS CAT. Requests 6 and 10 are granted, albeit with the caution that Lath cannot rely upon speculation, and must file any such motion in good faith and with a legitimate basis. Request 7 is denied as moot, as the City of Manchester is no longer a defendant in this matter. Requests 11 and 12 are also denied as moot based on Lath’s withdrawal of those requests. *4 Lath’s second motion for leave (doc. no. 354) is granted in part and denied in part. Request 1 is granted. Requests 2, 3, and 5 are denied as moot, as Lath withdrew those requests. Request 4 is granted, though Lath is encouraged to first confer with Attorneys Walker and Nelson to determine whether they assent to his requests with respect to Rule 30(b)(6) witness and to see whether the parties can agree to parameters for recording depositions. Finally, Lath’s third motion for leave (doc. no. 357) is denied as moot, as Lath withdrew that motion. Amica and BMS CAT’s motions for leave (doc. nos. 353 and 356) are granted. Both defendants are granted leave to file motions for Rule 37 sanctions, or any other appropriate discovery motions, as discussed above and at the conference. The defendants are also granted leave to file a join motion to extend deadlines and continue trial. Lath indicated that he assents to such a motion. E. Conclusion For the reasons stated on the record and above, the court grants in part and denies in part Lath’s motion to compel (doc. no 233); denies without prejudice in part and holds in abeyance in part BMS CAT’s motion to compel (doc. no. 286); grants in part and denies in part Lath’s motions for leave (doc. nos. 291, 354, and 357); and grants BMS CAT and Amica’s motions for leave (doc. no. 353 and 356). Amica is granted 30 days from the date of the conference to supplement its responses to Lath’s interrogatories and requests for production. Lath is ordered to provide Amica and BMS CAT with initial disclosures that comply with Rule 26(b)(1) no later than October 1, 2018.[2] Lath is further ordered to respond to BMS CAT’s motion to compel no later than September 18, 2018. The next case management conference is scheduled for Tuesday, October 9, 2018 at 10:00 AM. SO ORDERED. Footnotes [1] At the conference, the court indicated that Lath must file his response by next Monday, September 17, 2018. As the court previously provided Lath until September 18, 2018 to file that response, see Sept. 7, 2018 Endorsed Order, the court allows him this extra day. [2] Lath agreed to provide these materials to BMS CAT on a CD-ROM and to produce them to Amica in paper form.