SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Anthony Nguyen ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. This action is proceeding against Defendant M. D. Biter ("Defendant") for violation of the Eighth Amendment of the United States Constitution, a claim which arises from Plaintiff's allegations that he was exposed to arsenic-contaminated water while at Kern Valley State Prison ("KVSP") in Delano, California.
On June 16, 2014, Plaintiff filed a motion seeking leave to propound interrogatories in excess of the twenty-five already served. Fed. R. Civ. P. 33(a)(1). (Doc. 102.) In addition, Plaintiff seeks a ninety-day extension of the discovery deadline, which expired on September 6, 2014. Fed. R. Civ. P. 16(b)(4). Defendant filed an opposition on July 3, 2014; and on July 18, 2014, Plaintiff filed a motion to compel combined with a reply to Defendant's opposition. Fed. R. Civ. P. 37(a). (Docs. 103, 104.) Defendant filed an opposition to the motion to compel on August 4, 2014; and on August 13, 2014, Plaintiff filed a supplement to his motion to compel. (Docs. 105, 108.) On August 20, 2014, Plaintiff filed a second supplement to his motion to compel, and Defendant filed an opposition on August 28, 2014. (Docs. 109, 110.)
The motions were submitted upon the record without oral argument pursuant to Local Rule 230(l).
Plaintiff propounded twenty-five separately enumerated interrogatories and he now seeks leave to propound additional interrogatories on the ground that Defendant's response to his first set was evasive and unsatisfactory, resulting in his need for additional interrogatories. (Doc. 102.) Plaintiff's bare request for leave to serve additional interrogatories was not supported by a copy of his first set or a copy of his proposed interrogatories. (Id.)
In his opposition, Defendant provided copies of Plaintiff's (1) interrogatories, set one; (2) requests for admission, set one; (3) interrogatories, set two, and requests for the production of documents, set one;
On July 18, 2014, Plaintiff filed a motion to compel and for sanctions which also included his reply to Defendant's opposition to his motion to propound additional interrogatories. (Doc. 104.) Plaintiff seeks an order requiring Defendant to respond to the interrogatories "initially objected to and implicitly evaded," and he seeks monetary sanctions against Defendant for his evasive responses. Fed. R. Civ. P. 37(a)(2)(A). (Doc. 104, p. 1.) Plaintiff also addresses Defendant's opposition to his motion to serve additional interrogatories, and he identifies interrogatory numbers 8, 10, 12, 15, 17, and 18 as the ones to which Defendant improperly objected. (Id., pp. 16-18.) Plaintiff submits a letter to counsel he contends evidences his attempt to meet and confer with her over their discovery dispute without involving the Court, dated June 11, 2014; and Plaintiff contends that counsel's statement she is willing to work with him informally is untrue because she failed to respond to his letter. (Id., pp. 4-5, 17.)
In opposition to Plaintiff's motion to compel, Defendant addresses Plaintiff's arguments concerning the six interrogatories which were objected to, and reasserts that counsel met and conferred with Plaintiff but he filed a motion to compel before the Court issued a ruling on his motion for leave to serve additional interrogatories. (Doc. 105.) Defendant contends that sanctions are not warranted because he responded as fully as he could to Plaintiff's interrogatories and he advanced valid objections, but Plaintiff filed his motion to compel in disregard of counsel's offer to meet and confer informally. (Id.)
On August 13, 2014, Plaintiff filed a supplement to his motion to compel and for sanctions, entitled "Revised Motion to Compel Disclosure and for Sanctions," and on August 20, 2014, Plaintiff filed another supplement to his motion for sanctions, entitled "Addendum to Plaintiff's Motion for Sanctions." (Docs. 108, 109.) Plaintiff reasserts that Defendant's objections to his interrogatories lack merit, and states that he is seeking sanctions under Fed. R. Civ. P. 11(b), based on Defendant's representation that he served complete responses to all the interrogatories and on counsel's representation that she was willing to resolve discovery disputes informally with Plaintiff. (Id.) Plaintiff includes a prison record evidencing his inability to arrange for telephone conferences at his own request. (Doc. 109, p. 3.)
Defendant filed an opposition to both motions on August 28, 2014. (Doc. 110.)
The scope of discovery is broad but it is not without limits, Republic of Ecuador v. Mackay, 742 F.3d 860, 866 (9th Cir. 2014) (citing Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993)), and the Court is vested with broad discretion to manage discovery, Dichter-Mad Family Partners, LLP v. U.S., 709 F.3d 749, 751 (9th Cir. 2013) (per curiam), cert. denied, 134 S.Ct. 117; Hunt v. Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense," and "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Furthermore, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id.
An interrogatory may relate to any matter that may be inquired into under Rule 26(b), and 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. Fed. R. Civ. P. 33(a)(2) (quotation marks omitted). Parties are obligated to respond to interrogatories to the fullest extent possible under oath, Fed. R. Civ. P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). The responding party shall use common sense and reason. E.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 WL 1924935, *8 (D. Kan. Apr. 30, 2008). A responding party is not generally required to conduct extensive research in order to answer an interrogatory, but a reasonable effort to respond must be made. Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal. 2013); L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132, *2 (E.D. Cal. Sep. 21, 2007). Further, the responding party has a duty to supplement any responses if the information sought is later obtained or the response provided needs correction. Fed. R. Civ. P. 26(e)(1)(A).
Plaintiff was informed in discovery that Defendant was not employed by KVSP in 2008 and Defendant has represented that without further clarification, he is unable to answer the interrogatory. (Doc. 103-2, Opp., court record p. 24:16-22.) That response is sufficient under the circumstances.
While parties are required to use common sense and reason in interpreting discovery requests, the Court agrees with Defendant that this interrogatory is unintelligible as drafted, and it cannot be salvaged by any reasonable interpretation.
The interrogatory is vague and ambiguous, and it does not appear reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1); Surfvivor Media, Inc., 406 F.3d at 635.
This interrogatory impermissibly seeks a response that requires an expert opinion. Gorton v. Todd, No. CIV S-08-3069 LKK GGH P, 2010 WL 234874, at *1-2 (E.D.Cal. 2010). The relevance is also not readily discernible. Fed. R. Civ. P. 26(b)(1); Surfvivor Media, Inc., 406 F.3d at 635.
A request for an admission should be set forth as such, but regardless, this interrogatory is unintelligible and ambiguous, and the relevance of the information sought is unclear. Fed. R. Civ. P. 26(b)(1); Surfvivor Media, Inc., 406 F.3d at 635.
This interrogatory is vague, ambiguous, and unintelligible as framed.
If a motion to compel is granted, the moving party may be entitled to an award of reasonable expenses actually incurred in moving to compel, but Plaintiff is not entitled to recoup any expenses in light of the denial of his motion. Fed. R. Civ. P. 37(a)(5)(A). Moreover, Plaintiff's Rule 11 motion fails as a matter of law because it was filed in violation of the twenty-one day "safe harbor provision," Fed. R. Civ. P. 11(c)(2); Holgate v. Baldwin, 425 F.3d 671, 677-78 (9th Cir. 2005), and there is no basis for sanctions under the Court's inherent authority, Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123 (1991); Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001).
Plaintiff's contentions that Defendant's responses and objections to his interrogatories, set one, were improper and evasive lack merit, as does his contention that Defendant made misstatements in his opposition. More specifically, while Plaintiff challenges defense counsel's representation that she is willing to work with Plaintiff informally to resolve their discovery disputes as false and notes her failure to answer his letter, Plaintiff's position is not supported by the record. After receiving objections to Defendant's interrogatory responses, counsel spoke with Plaintiff by telephone on May 14, 2014, a meeting she treated as a meet and confer attempt; she acknowledged receipt of Plaintiff's subsequent letter dated June 10, 2014; and she stated she will respond to Plaintiff's letter after the Court resolves his pending motion.
Accordingly, Plaintiff's motion for sanctions is denied.
Next, Plaintiff seeks leave to propound interrogatories in excess of twenty-five. Fed. R. Civ. P. 33(a). Although Plaintiff's motion was procedurally deficient, Defendant provided copies of his responses to Plaintiff's second and third sets of interrogatories. (Docs. 103-2 & 103-4, Opp., Exs. 3, 4.) Based on those exhibits, Plaintiff apparently seeks leave to propound an additional thirty-nine interrogatories. (Doc. 103-2, court record pp. 29-36, Doc. 103-4, court record pp. 64-71.)
Rule 33 limits interrogatories to twenty-five per party, including discrete subparts, but the Court may grant leave to serve additional interrogatories to the extent consistent with Rule 26(b)(2). The limitation is not intended "to prevent needed discovery, but to provide judicial scrutiny before parties make potentially excessive use of this discovery device," and "[i]n many cases, it will be appropriate for the court to permit a larger number of interrogatories. . . ." Advisory Committee Notes to the 1993 Amendments of Fed. R. Civ. P. 33.
Plaintiff is proceeding pro se and he is incarcerated, which affects his ability to draft discovery with the precision of an attorney. It also entitles him to some additional leniency. Discovery must be limited if it is unreasonably cumulative or duplicative, Fed. R. Civ. P. 26(b)(2)(C)(i), but that inquiry must be viewed through the lens of Plaintiff's pro se status. Pro se litigants are necessarily accorded greater latitude than attorneys given their lesser skill set. The Court will not overlook abuse of the discovery process, but neither will it rigidly apply the interrogatory limit when the rule itself contemplates the propriety of additional interrogatories in many cases.
While the Archer Daniels Midland Co. case cited by Defendant articulates the "particularized showing" standard frequently utilized by courts, the issues in Archer differ significantly from the issues in this case, and the decision does not compel the determination that Plaintiff should be precluded from serving additional interrogatories. However, neither is Plaintiff entitled to free rein in discovery by virtue of his pro se status. Where a litigant imprudently uses the initial twenty-five interrogatories on irrelevant or tangential questions, or on interrogatories which are abusive of the opposing party or the discovery process, the Court does not view a subsequent motion for leave to propound additional interrogatories with favor.
Here, in balancing Plaintiff's professed need for further discovery in the context of his more limited skills as a pro se litigant with the Court's duty to protect parties from abusive discovery practices, the Court has reviewed Plaintiff's second and third interrogatory sets and it finds that allowing Plaintiff to propound an additional twenty interrogatories is fair and just on balance. Not all of the decisions made by Plaintiff in drafting his sixty-four interrogatories were prudent. Some of the interrogatories were unintelligible, some sought irrelevant information, some were unreasonably cumulative or duplicative, and some were unduly antagonistic. If Plaintiff chooses to forego well-drafted, relevant interrogatories in favor of questionable interrogatories, the consequences are his to bear. Plaintiff is permitted only twenty additional interrogatories, and the Court will not entertain another motion for additional interrogatories.
The discovery deadline was September 6, 2014, and Plaintiff filed a timely motion for an extension of the discovery deadline on June 16, 2014.
Plaintiff's bare request for a ninety-day extension of the discovery deadline is denied, as Plaintiff's general desire to continue engaging in discovery does not provide good cause for an extension of the deadline. Fed. R. Civ. P. 16(b)(4); Zivkovic, 302 F.3d at 1087. However, in light of the ruling allowing Plaintiff to propound twenty additional interrogatories, the discovery deadline is extended for the limited purpose of providing Plaintiff thirty days within which to either serve twenty interrogatories on Defendant or serve Defendant with a notice specifically informing him which twenty interrogatories from sets two and three he has selected for response. Defendant has thirty days from the date of service of Plaintiff's interrogatories or notice to serve responses, and Plaintiff has thirty days from the date of service of the responses to file a motion to compel, if necessary.
Based on the foregoing, it is HEREBY ORDERED that:
IT IS SO ORDERED.
