The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the court is plaintiff's Motion to Compel (#46). As stated below, the motion to compel is granted in part and denied in part.
Along with their Response in Opposition to the Motion to Compel, defendants served plaintiff with supplemental discovery responses. Thereafter, plaintiff filed a motion asking for leave to file a Reply (#53). Because the proposed Reply clarifies which disputes are moot and which ones remain in issue, the motion for leave to file the Reply is allowed; the Clerk shall file the Reply that was attached as an exhibit to this motion.
Plaintiff was employed by the City of Kewanee in the Public Works Department from July 1, 1999 to June 8, 2004. She was the first full-time female laborer in this Department, which now consists of approximately 24 employees. At the relevant time, the Director of that Department was Mike Rapczak and the Coordinator was Kip Spear. The City Manager was Tim Hacker; Spear is now the City Manager.
In her complaint, plaintiff claims that she was subjected to various forms of sexual harassment and discrimination, pregnancy discrimination, hostile environment and retaliation during her employment. She complained about the misconduct but alleges that nothing was done.
Then, during her pregnancy in 2004, her doctor imposed a weight restriction. Spear told her the restriction could not be accommodated and that she would have to take a leave of absence.
On June 8, 2004, Hacker told her his conclusions about her complaints of sexual harassment. On that same day, her employment was terminated. The reason given for her termination was her conviction for a Class A misdemeanor. Plaintiff claims, however, that it was in retaliation for her complaints or was part of the discriminatory treatment to which she was subjected.
This lawsuit followed. Count I is against the City for harassment and hostile work environment. Count II alleges sex discrimination against the City. Count III alleges pregnancy discrimination against the City. Count IV alleges retaliation against the City. Count V is a § 1983 claim for violation of the Equal Protection Clause of the Constitution. The instant motion arises out written discovery and responses thereto.
Fed.R.Civ.P. 26(b)(1) permits discovery of all unprivileged matters "relevant to the claim or defense of any party." If relevant, information "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
While the scope of discovery is broad, otherwise-permitted discovery is limited by Fed.R.Civ.P. 26(b)(2). This paragraph dis-allows unreasonably cumulative or duplicative discovery, and discovery obtainable from some other source that is more convenient, less burdensome or less expensive. It also prohibits a party from seeking discovery that it has had "ample opportunity" to discover. Finally, the Rule does not permit discovery where the burden or expense of the discovery "outweighs its likely benefit," taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues, and the importance of the discovery to resolving the dispute Fed.R.Civ.P. 33 and 34 govern interrogatories and requests for documents. Both Rules require that objections be stated with specificity and that responses be made to the extent that there is no objection.
In response to Plaintiff's interrogatories served on February 22, 2006, defendant first interposed a blanket objection on March 24, namely that plaintiff had propounded interrogatories in excess of the number allowed by the Rules. No other objection or response was made at that time.
On April 6, however, defendant decided to withdraw this objection. In a letter to plaintiff's counsel, defendant stated that by withdrawing the objection to numerosity, they were not waiving any other objections. On May 2 and 3, defendants requested an extension of time to May 12 to answer. No response to that request was made by plaintiff's counsel. On May 10, defendant answered the interrogatories, asserting various objections to some of those questions.
Plaintiff argues that defendant waived all substantive objections by not making them with the first response. Defendant on the other hand posits that when too many interrogatories are asked, the proper procedure is to raise that objection and that objection only, rather than deciding which ones to answer or waiving the protection afforded by the numerosity limitation in the first place.
Fed.R.Civ.P. 33 provides that "Any ground not stated in a timely objection is waived." There is no dispute that the subsequent objections fell outside the 30 days allowed by the Rule. But defendant states its belief that plaintiff had agreed to an extension because plaintiff voiced no opposition when defendant requested that extension. The defendant's request for an extenstion, however, came after the deadline for voicing objections had passed, and therefore does not serve, without more, to excuse the untimely interposition of substantive objections.
However, courts are not unanimous about how this timeliness issue should be resolved when a party believes too many interrogatories have been asked. The parties in this case have each cited District Court cases from other Districts to support their position. One line of cases strictly applies the time limitation. See authority cited in Autotech Techs. Ltd. P'ship v. AutomationDirect.com, Inc., 236 F.R.D.396 (N.D.Ill. 2006). The other line of cases treats the numerosity objection in a different manner, holding that a numerosity objection must be resolved before any other obligation to respond or object can be expected. See, Allahverdi v. Regents of the Universtiy of New Mexico, 228 F.R.D. 696, 698 (D.N.M. 2005); Herdlein Technologies, Incl, 147 F.r.D. 103, 104 (W.D.N.C. 1993).
The Court believes that the better result is the latter one: numerosity may be raised in isolation from other objections without waiving those objections. Otherwise, the responding party would have to answer and object, which in essence is contrary to the very purpose of the numerosity objection. In order to give meaningful teeth to the numeric limitation imposed by the Rule, this second line of cases defers the obligation to respond and object until that objection is resolved. This second line of cases makes sense.
Plaintiff's assertion that the numerosity objection was frivolous does not change that outcome. Assertion of the objection was not, in this case, without a good faith basis, as the 14 interrogatories contained numerous sub-parts. Although there is an argument that the sub-parts were so related to the initial question that they do not "count" as additional interrogatories, the opposite argument can also be made. This is not the case to decide the effect of a frivolous objection to the number of interrogatories.
Moreover, Fed.R.Civ.P. 33 allows the court to excuse a failure to timely object for good cause shown. Good cause has been shown here. Either because the numerosity objection should be raised first or because good cause has been shown for the failure to raise other objections, the Court concludes that defendants did not waive their substantive objections by not stating them along with the numerosity objection.
Next, a comment must be made about defendants' response that some information is better suited for deposition than interrogatory. Rule 26 disallows discovery that is obtainable from some other source that is more convenient, less burdensome or less expensive. There is therefore no basis for plaintiff's aragument that the Rules provide no authority for such an objection. Where defendants made a "burdensome" objection in conjunction with their preference that the information be gleaned from deposition, the objection may legitimately be considered. The merits of the objection depend on individualized consideration. The objection is not rejected out of hand.
Next plaintiff complains that defendant responded with "boilerplate" objections such as overly broad, unduly burdensome, vague, ambiguous, irrelevant, and not calculated to lead to the discovery of admissible evidence. These are all valid objections, so characterizing them as "boilerplate" does not explain why the objection was not legitimate and it does not provide the Court with a basis for ruling.
It is true that some of these objections were not fully (or even partially) explained at the time the objections were made; perhaps this is what plaintiff means by use of the word "boilerplate". But defendant now argues that each such objection (1) was made in response to a specific interrogatory (i.e. was not a "blanket" objection); (2) was accompanied by an answer to the interrogatory, in addition to stating the objection; (3) was made along with other ...