*1 Defendant ACE American Insurance Company (“ACE”) has filed two motions to compel further discovery responses from Plaintiffs Olen Properties Corp., et al. (collectively, “Olen”): (1) Dkt. 23 seeking a further response to interrogatories (“rogs”) 4, 6, 8, 10, and 13, and (2) Dkt. 24 seeking a further response to request for production (“RFP”) 22.

The Court finds this matter appropriate for resolution without oral argument. FRCP 78(b); Local Rule (“L.R.”) 7-15.

For the reasons stated below, the Court GRANTS both motions.

I. Background.

This case involves a dispute between Olen and its insurer, ACE, alleging that ACE breached its duty to defend Olen in earlier litigation. The alleged acts of breach include ACE's delaying its acceptance of tender and delaying or shortchanging payments.

This case was removed to federal court on the basis of diversity jurisdiction. (Dkt. 4 [civil cover sheet].) As a result, federal law governs discovery procedures, but California law governs substantive questions, such as discovery privileges. See Fed. R. Evid. 501; Bible v. Rio Prop., Inc., 246 F.R.D. 614, 617 (C.D. Cal. 2007).

II. Meet and Confer Requirements.

As an initial matter, Olen contends that both motions should be denied due to ACE's failure to comply with the “meet and confer” requirements of L.R. 37-1, et seq.

With regard to the rogs, Olen served initial responses on October 2, 2016. (Dkt. 23 at 2.) On November 21, 2016, ACE sent Olen a L.R. 37-1 letter identifying alleged deficiencies. (Dkt. 23-9 at 2.) That letter included Rog 6. (Id. at 4.)

The parties met and conferred over alleged deficiencies on December 2, 2016. (Dkt. 23 at 19.) Olen provided some supplemental responses on December 21, 2016. (Id. at 2.) After reviewing these responses and deciding that they remained inadequate, ACE began to employ the procedure described in L.R. 37-2 for filing joint stipulations to the court regarding a discovery dispute. ACE served Olen with its portion of the two joint stipulations—one concerning the rogs and one concerning the RFP—on January 5, 2016. (Dkt. 23-4 at 2.) ACE initially did not provide its supporting declarations or exhibits. (Dkt. 23-7 at 2.)

Olen contends that the Local Rules required ACE to re-initiate the meet and confer process by sending another L.R. 37-1 letter identifying alleged deficiencies in Olen's supplemental responses to Rogs 4, 8, 10, and 13.

With regard to Rog 6, the parties “met and conferred” over Olen's initial response. (Dkt. 23-8 at 2, Sher Decl., ¶ 6 [“Ms. Barnes and I met and conferred concerning the substance of the responses listed in the letters ....”].) After the meeting, however, ACE's counsel Mr. Sher sent Olen's counsel Ms. Barnes a “confirming letter” that does not mention Rog 6. (Dkt. 23-11 at 2-4.) Because his “letter did not request a further response to Interrogatory No. 6 ... none was provided” by Olen. (Dkt. 23-1 at 2, Barnes Decl., ¶ 5.)

Similarly, after an initial “meet and confer” session, Olen provided supplemental responses to some RFPs. Olen contends that before preparing a joint stipulation, ACE was required to meet and confer again over Olen's supplemental response to RFP 22, the only RFP now in dispute. (Dkt. 24 at 17.)

*2 If a party propounding discovery engages in the “meet and confer” process and obtains an agreement from the responding party to provide supplemental responses, but the supplemental responses do not resolve the initial claimed deficiency and/or comport with the parties' agreement, then the propounding party may serve its portion of the required stipulation. See L.R. 37-2 (“If counsel are unable to settle their differences, they shall formulate a written stipulation ....”).

A responding party cannot block a propounding party from seeking judicial assistance by promising to supplement its responses but then providing inadequate responses. To interpret the Local Rules otherwise could potentially trap the propounding party in an inescapable loop of “meet and confer,” in which the responding party repeatedly promises to discharge its discovery obligations but then repeatedly provides deficient answers. Such a scenario is particularly problematic where, as here, the discovery cut-off date is fast approaching.

Olen's supplemental responses to the challenged discovery did little to change its initial responses. As discussed below, Olen added qualifiers that negated the supplemental information or added non-specific references to documents. ACE reasonably concluded that engaging Olen in another round of the “meet and confer” process would not result in adequate, supplemental responses.

Local Rule 37-2.2 does require that counsel send the initial portion of a proposed joint stipulation “together with all declarations and exhibits to be offered in support of the moving party's position.” Olen, however, does not contend that it lacked adequate time or information to prepare its opposition based on ACE's failure to comply with this requirement. The Court, therefore, declines to deny ACE's motions on this technical ground.

III. Interrogatories.

A. Rog 4

Rog 4 provides in full as follows:

(Dkt. 23 at 16.)

After objections, Olen responded by listing a number of activities performed by “Julie Ault and her staff,” but did not provide other names or corresponding dates. (Id. at 16.) With regard to the amount of time spent, Olen responded, “Responding party is unable to quantify the amount of time spent on this matter at this time.” (Id. at 17.)

ACE argues that the requested information is relevant to calculating damages. ACE contends that adding “at this time” makes Olen's supplemental response evasive; it suggests that Olen “might be able to do so later,” i.e., after the discovery cut-off. (Id. at 18.) ACE offers that if Olen “is not claiming damages for the alleged hours spent and is prepared to stipulate to that, then no further response would be required.” (Id.)

Olen objects that Rog 4 is compound, and if counted as four separate interrogatories, it would cause ACE to exceed the 25-rog limit in FRCP 33(a)(1). Rule 33(a)(1) limits a party to “no more than 25 written interrogatories, including all discrete subparts.”

*3 In reviewing the parties' submission, this Court cannot determine how many total rogs ACE propounded on Olen -- the highest number referenced appears to be 18. (See, e.g., Dkt. 23-9 at 9.) Olen's briefing says, “The interrogatories propounded by ACE, including subparts, far exceeded the 25 ...” (Dkt. 23 at 20), but Olen does not cite to a supporting exhibit or declaration or explain how its count exceeds 25. The party asserting an objection bears the burden of proving the supporting facts. Oakes v. Halvorsen Marine, Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998) (“The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”); accord Blakenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

Olen's compound objection is OVERRULED because Olen has failed to show that counting Rog 4 as four separate rogs would result in ACE propounding more than 25 Rogs. Even if it did, Olen would still need to answer the first 25 rogs, as discussed infra; this would include all of Rog 4.

When a party exceeds the rog limit set by the district court or Rule 33, the responding party is not free to choose the interrogatories to which it will respond. Nor should the responding party refuse to answer any rogs until the numeric dispute is resolved. Rather, “the best rule, and the one this Court applies here, is that a responding party must answer the first 25 interrogatories. If it answers more, the numerosity objection is waived as to those interrogatories that were answered.”Paananen v. Cellco Partnership, 2009 U.S. Dist. LEXIS 98997, at *12-13 (W.D. Wash. Oct. 8, 2009) (citing Capacchione v. Charlotte-Mecklenburg Sch., 182 F.R.D. 486, 492 (W.D.N.C. 1998) (holding that a party making a numerosity objection to interrogatories must either seek a protective order or answer up to the limit and object to the remaining)).

Here, while Olen objected based on the numeric limit, Olen also apparently responded to all of ACE's interrogatories. Waiver provides an additional reason why Olen's compound objection is OVERRULED.

While Rule 33 does not define the term “discrete subparts,” courts have construed it to mean that “interrogatory subparts are to be counted as one interrogatory ... if they are logically or factually subsumed within and necessarily related to the primary question.” Safeco Ins. Co. of Am. v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998) (citation omitted); see also Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315 F.R.D. 191, 194-95 (E.D. Tex. 2016) (discussing Safeco and district court cases around the country grappling with defining “discrete subparts”). Subparts relating to a “common theme” should generally be considered a single interrogatory. Safeco, 181 F.R.D. at 444 (quoting 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2168.1, at 261 (2d ed. 1994)). But “if the first question can be answered fully and completely without answering the second question” then the questions are distinct. Estate of Manship v. U.S., 232 F.R.D. 552, 555 (M.D. La. 2005) (quoting Krawczyk v. City of Dallas, 2004 U.S. Dist. LEXIS 20651 (N.D. Tex. 2004)). Since many of these formulations are difficult to apply or perhaps even conflicting, courts often take a “pragmatic approach,” looking to see if an interrogatory threatens the purpose of Rule 33 by combining into one interrogatory several lines of inquiry that should be kept separate. Erfindergemeinschaft, 315 F.R.D. at 196-97.

*4 Apply these formulations, courts have generally found that one interrogatory asking for the same information about many different topics is, in fact, multiple interrogatories corresponding with the number of topics. For example, an interrogatory asking for the factual bases of 36 affirmative defenses constitutes 36 interrogatories. Avila v. Mohave Cnty., 2015 U.S. Dist. LEXIS 148956, at *20-21 (D. Ariz. Oct. 30, 2015). “Where an interrogatory asks the responding party to provide the basis for denials of requests for admission, there is a presumption that each of the underlying requests for admission counts as a separate interrogatory.” McClellan v. Kern Cty. Sheriff's Office, 2015 U.S. Dist. LEXIS 98524, at *17 (E.D. Cal. July 27, 2015). “Where a [patent] case involves multiple accused products, courts generally have concluded that a single interrogatory seeking information about all accused products contains at least as many discrete subparts as there are accused products ....” Synopsys, Inc. v. Atoptech, Inc., 2016 U.S. Dist. LEXIS 159568, at *6 (N.D. Cal. Nov. 16, 2016).

In contrast, interrogatories asking for different bits of information about the same topic generally are considered one interrogatory. For example:

• An interrogatory seeking a description of how each design in dispute “was created, broken down by design, by listing each pre-existing public domain or licensed element used in the design, identifying the source of each pre-existing element, identifying each person who contributed to the creation of the design, the specific step(s) that each person took in the creation of the design, and the date each design was finalized” was considered one interrogatory, because “[e]ach subpart merely clarifies the level of detail requested in the description of how the Subject Designs were created.” Advanced Visual Image Design, LLC v. Exist, Inc., 2015 U.S. Dist. LEXIS 102798, at *9-10 (C.D. Cal. Aug. 5, 2015) (capitalization omitted).

• An interrogatory asking the plaintiff to “State each and every fact in support of your contention that you were injured by Defendant ... during the ... incident that is the subject of your complaint, including: (a) a detailed description of the injury; and (b) the date the injury was incurred and/or diagnosed,” was considered one interrogatory.Gilmore v. Lockard, 2015 U.S. Dist. LEXIS 118059, at *25 (E.D. Cal. Sept. 3, 2015).

• An interrogatory asking a party to “Identify by caption, court, civil action number, and result all litigation filed against you alleging violations of the Fair Debt Collection Practices Act” was considered one interrogatory. Trevino v. ACB Am., Inc., 232 F.R.D. 612, 614 (N.D. Cal. 2006).

• An interrogatory asking a correctional officer defendant, “What is your full name (First, Middle Last), years of service with the California Department of Corrections and Rehabilitation, assignments throughout the period of service, and job descriptions at each location where you were assigned throughout those years of service” was considered one interrogatory because “Plaintiff's subparts for this Interrogatory all request information about [the defendant's] background. Ransom v. Marquez, 2015 U.S. Dist. LEXIS 27218, at *25-29 (E.D. Cal. Mar. 4, 2015).

• An interrogatory asking, “As to the storage of data generated by the users of your computers (such as word-processed files and e-mail), please state whether the data are backed up on tape or other media and, if so state how many such media currently exist with backup data on them; what is the maximum storage size in megabytes for each such media; what is the brand name for each such media, including software and hardware; the dates of each back up during the three months before and after Plaintiff's termination; what was the computer or other hardware (e.g., individual workstation, server) for each such backup; and the physical location and current user of each computer or other hardware used” was considered one interrogatory because it “inquires into one distinct area: Verizon's backup procedures.” Paananen v. Cellco Partnership, 2009 U.S. Dist. LEXIS 98997, at *7-8 (W.D. Wash. Oct. 8, 2009).

*5 ACE's Rog 4 is about one topic: the “hours spent by both Julie Ault and her staff” as alleged in the Complaint at page 5, lines 17-20. The subparts are not discrete, because they ask for details about this same topic, i.e., who spent these hours, doing what, and for how long. For this reason also, Olen's compound objection is OVERRULED.

Olen contends that its supplemental response to Rog 4 conforms with the parties' agreement. Comparing Olen's original response (Dkt. 23-9 at 3-4) to its supplemental response (Dkt 23 at 16-17), the only sentence Olen added was, “Responding party is unable to quantify the amount of time spent on this matter at this time.”

Olen says, “During the meet and confer, counsel for ACE requested a further response to Interrogatory No. 4 stating whether or not Olen could quantify the hours spent by Ms. Ault and her staff in assisting the defense in the Underlying Action. Olen agreed to provide a response that it could not quantify that amount. This is precisely the response provided to Interrogatory No. 4. [...] Olen did not agree to confirm whether or not it was pursuing this claim.” (Dkt. 23 at 21-22.)

The Court disagrees with Olen's characterization. The reason ACE asked for a supplemental response was to determine whether or not it would face claims for these damages at trial. By adding the qualifier “at this time,” Olen left open the possibility that it could quantify these hours at a later time and then would present that evidence at trial, having failed to disclose it during discovery.

The purpose of discovery is to enable to the parties to investigate the claims and defenses before trial such that the trial is an orderly presentation of evidence enabling the finder of fact to determine the truth. If a party cannot produce sufficient information to quantify a particular damages claim during discovery, then the opposing party should be able to rely on the exclusion of that speculative damages claim at trial.

ACE's motion as to Rog 4 is GRANTED. In a straightforward manner, Olen should identify whether or not it intends to claim these hours as damages. If it does, then in must respond to Rog 4 in full, or state unambiguously that it has no responsive information.

B. Rog 6

Rog 6 is another question aimed at understanding Olen's claimed damages. It asks as follows:

(Dkt. 23 at 22.)

This objection is OVERRULED for the same reasons as stated for Rog 4. Every subpart relates to the same topic: defense fees and costs.

Olen responded, “Responding party further objects to the request on the ground it seeks documents which are more or equally available to the requesting party. Without waiving said objection: responding party has produced the invoices from Wesierski & Zurek which also reflect payments which contain such information.” (Dkt. 23 at 23.)

During the meet and confer process, ACE argued that this response was insufficient, because reviewing all of the invoices from Olen's legal counsel will not tell ACE the information it needs to determine the amount of damages claimed by Olen. For example, there may be legal services reflected in the invoices that Olen does not contend were part of defending the earlier lawsuit. The invoices also may not reflect the payments received from ACE. (Dkt. 23-9 at 5.)

*6 The Court rejects Olen's contention that the parties never “met and conferred” over Rog 6. (Dkt. 23 at 24.) The Court OVERRULES Olen's “equally available” objection, because the identified documents do not adequately explain the amount Olen claims as damages.

ACE's motion as to Rog 6 is GRANTED. Olen must respond to Rog 6 by providing numbers, not referencing documents.

C. Rog 8

(Dkt. 23 at 25.)

After objecting that this rog was compound and sought information “equally available” to ACE, Olen responded, “Without waiving said objection: responding party has produced the invoices and payments from Wesierski & Zurek which contain such information. Responding Party refers propounding party to the following documents; OLEN-00001-00534; 01478-01500.” (Id.)

This objection is OVERRULED for the same reasons as stated for Rog 4. Every subpart relates to the same topic.

ACE points out that one of Olen's primary contentions is that ACE delayed paying Olen's legal bills. This interrogatory is aimed at discovering the data showing delay, if any, in Olen's possession. ACE rightly points out that records of “invoices and payments” do not necessarily show when the invoice was sent or when the payment was received. ACE explains that it wants to “determine if [Olen's] facts differ from the facts known to ACE ....” (Id.)

The Court agrees that Olen has not provided the requested information by referring to documents. ACE's motion as to Rog 8 is GRANTED.

D. Rog 10

(Dkt. 23 at 27-28.)

Olen initially responded by listing a number of wrongful acts by “ACE.” Olen then supplemented its response to add, “Responding Party refers propounding party to the following documents: OLEN-00001-01529.” (Id. at 29.)

This objection is OVERRULED for the same reasons as stated for Rog 4. Again, all of the subparts seek information concerning the same topic.

Olen contends that by referencing approximately 1,530 pages of documents, Olen satisfied the agreement reached during the parties' “meet and confer” conference. (Dkt. 23 at 31.) Olen contends that the referenced documents contain the dates and names requested, and that under Rule 33(d), it may respond by referring to these records. (Id.)

Under FRCP 33(d), “If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by” referring to specific documents.

*7 Here, referring ACE to documents will not identify which acts described in the documents Olen contends are wrongful, nor will it identify the witnesses. Moreover, Olen has not shown that the burden of deriving the information from Olen's own documents concerning Olen's own contentions would be “substantially the same for either party.”

Olen has not provided the requested information by referring to documents. ACE's motion as to Rog 10 is GRANTED.

E. Rog 13

(Dkt. 23 at 32.)

Olen initially responded by stating, “Responding party was required to divert employee time and attention away from business to devote to dealing with ACE's refusal to pay for the costs and fees associated with the defense to responding party's personal and professional detriment.” (Dkt. 23-9 at 8.)

Olen then supplemented its response to add, “Responding party has not yet quantified the amount of consequential damages. A plaintiff asserting a claim of bad faith is not required to prove the exact amount of damages that would provide reasonable compensation for his/it/her harm and no fixed standard exits for deciding the amount [of] damage for mental and emotional distress, inconvenience, anxiety[,] stress or other items of general or noneconomic damages.” (Dkt. 23 at 32-33.)

ACE contends that, “Without a further answer ACE cannot know the extent of damages claimed against it by Olen. The interrogatory does not seek the amount of general damages claimed or for distress, etc.” (Dkt. 23 at 33.)

This objection is OVERRULED for the same reasons as stated for Rog 4.

Olen contends that it has sufficiently discharged the agreement reached during the “meet and confer” conference, as follows: “During the meet and confer, Olen agreed to state whether or not it could quantify the consequential damages.... It provided a further responses stating that it could not do so.” (Dkt. 23 at 33.)

Again, the Court disagrees with Olen's characterization. Saying it “has not yet quantified the amount of consequential damages” is a far cry from saying whether or not it can ever quantify the consequential damages, and then providing that quantification if so.

Olen contends it should be excused from responding because, “At this stage, four (4) months before trial, Plaintiffs have not refined the proof that will be used.” (Dkt. 23 at 35.) Olen does not state by when it expects to be able to provide information to support its claim for consequential damages.

The “Discovery Fact Cut-Off” is February 16, 2017. (Dkt. 16.) Judge Guilford's scheduling order provides that the “discovery cutoff provisions in this Order include expert discovery, except as here provided or otherwise ordered by the Court.” (Id. at 2.) Thus, while the disclosure of any expert opinions concerning damages is controlled by expert discovery rules, the disclosure of the facts underlying any anticipated expert analysis must occur before the discovery fact cut-off.

*8 Olen's response that it has “not yet” gathered the requested information and should not be required to disclose it four months before trial is essentially a challenge to the Scheduling Order. ACE is entitled to know the facts on which Olen will base its claim for consequential damages prior to the discovery fact cut-off date. ACE may wish to file a pre-trial motion challenging Olen's claim for consequential damages, and it cannot do so if Olen has delayed disclosing such information until some indeterminate time, perhaps after the deadline applicable to such motions as passed.

ACE's motion as to Rog 13 is GRANTED.

IV. RFPs.

Like Rog 13, RFP 22 seeks information supporting Olen's claim for consequential damages. RFP 22 asks Olen to produce, “All documents you believe support the pled allegation that Plaintiffs suffered ‘consequential damages.’ (Complaint at p. 5, lines 24-25.).” (Dkt. 24 at 14.)

Olen's initial response consisted of objections only. Olen objected that RFP 22 (1) seeks documents protected by the attorney-client or work product privilege, (2) is duplicative of other discovery and therefore propounded with the intent to harass, and (3) is not proportional to the needs of the case. (Id. at 14-15.)

Olen supplemented its answer to refer to documents produced at OLEN-000001 - OLEN-01551, the two insurance policies at issue and “the complaint and documents in the underlying action.” (Id. at 15.) ACE explains that the documents referenced are “the entirety of Olen's produced documents” plus “other unidentified documents.” (Id. at 9.)

ACE points out that Olen failed to identify if responsive materials were being withheld (by, for example, producing a privilege log) in violation of FRCP 34(b)(2)(C). (Id. at 16.) Nothing in Olen's briefing addresses its privilege objection. (Id. at 17-22.)

This objection does not excuse Olen from responding to RFP 22, and Olen must log any responsive documents withheld as privileged.

Olen does not address this objection in its briefing. The objection is WAIVED and OVERRULED.

Olen contends that it should not be required to provide information in support of its claim for consequential damages during discovery, because if at trial it turns out that such damages cannot reasonably be calculated, then they cannot be awarded. (Id. at 22.) Under FRCP 26(b)(1), ACE is entitled to information supporting Olen's damages claims before trial, and may even have grounds to file a pre-trial motion to preclude Olen from attempting to recover such damages if the only discovery provided shows that such damages are uncertain or speculative. Thus, Olen's argument fails to establish that the burden to it of providing such discovery outweighs the potential benefit to ACE.

Olen also contends this request is unduly burdensome because, “To ask a party for all documents supporting a claim of consequential damage is burdensome and inexact. The amount of consequential damages and the items of consequential damages is more appropriate to an interrogatory. Proof of the actual amount of any damages, particularly consequential damages, is inexact.” (Id. at 19.) Olen cannot fairly raise this objection, because Olen also refused to respond to the interrogatory ACE propounded seeking information supporting Olen's claim for consequential damages.

For these reasons, this objection is OVERRULED.

ACE contends that there is a distinction between “direct” and “consequential” damages. ACE quotes the following passage as defining that distinction:

Gardensensor, Inc. v. Stanley Black & Decker, Inc., 2014 U.S. Dist. LEXIS 135302, at *8-9 (N.D. Cal. Sept. 24, 2014). (Dkt. 24 at 16.) Due to this distinction, ACE concludes, “From the documents, one might be able to calculate direct damages but they provide nothing with respect to consequential damages.” (Id. at 16.)

Olen argues this authority is inapposite because it deals with Delaware law and “did not concern discovery disputes or what must be provided in discovery to support a prayer for relief for consequential damages.” (Dkt. 24 at 18.) Olen then cites California law establishing various forms of consequential damages that may be recoverable in an action for breach of an insurance contract. (Id. at 19-20.) Olen claims it has “identified documents reflecting damages it has sustained” and it is not required to classify such damages as “consequential” or of some other form. (Id. at 21.)

The problem with Olen's argument is that the documents it identified are the entirety of its production and do little to illuminate what damages Olen is claiming. Is Olen, for example, claiming that it lost other business opportunities while it dealt with the lawsuit that ACE was supposed to be defending? If so, ACE is entitled to learn about this claim and the supporting evidence during discovery, and not be surprised at trial. ACE is not required to pick through the entirety of Olen's production and guess what claims for damages Olen may make based on those documents.

ACE's motion as to RFP 22 is GRANTED. In response to Rog 13, Olen shall identify each item of claimed consequential damages. In response to RFP 22, Olen shall produce (or identify by BATES number if already produced) the documents corresponding to each item on an item-by-item basis.

V. Disposition.

Olen shall serve further responses consistent with this order no later than February 6, 2017. If Olen's responses fail to comply with this order, ACE may file a motion under FRCP 37 concerning any alleged deficiencies before the discovery motion cutoff date, i.e., 30 days after the discovery cutoff. Such a motion need not be in the form of a joint stipulation, but before filing such a motion, ACE shall provide Olen with a letter listing each deficiency and requesting to meet and confer within 5 business days.