United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
A. EIFERT, UNITED STATES MAGISTRATE JUDGE
is Defendant Sperry Rail, Inc.'s Motion to Compel
Plaintiffs to Respond to Sperry's Second Set of
Interrogatories and Requests for Production of Documents.
(ECF No. 109). Plaintiffs have filed a response in opposition
to the motion, (ECF No. 114), and Sperry Rail, Inc.
(“Sperry”) has filed a reply memorandum. (ECF No.
119). The issues in dispute are clear; therefore, oral
argument on the motion is unnecessary. For the following
reasons, the court GRANTS, in part, and DENIES, in part,
civil action, arising from a train derailment in Fayette
County, West Virginia, has been designated a complex case
under this district's local rules. Consequently,
discovery has not progressed as rapidly as usual. Although
the case was removed to this court in September 2015,
discovery did not begin until the middle of January 2016.
While the extent of the discovery undertaken is not entirely
clear from the docket sheet, a recent scheduling order set a
deadline of December 31, 2016 to serve requests for the
production of documents and a deadline of February 28, 2017
for fact witness depositions. (ECF No. 107). Deadlines
related to expert witness discovery and a trial plan for
bellwether cases have not yet been determined. Therefore,
considerable discovery remains to be completed.
asks the court to compel Plaintiffs to respond to seven
interrogatories and nine requests for the production of
documents contained in Sperry's second set of written
discovery. The seven interrogatories ask for information
related to Plaintiffs' liability claims and contentions,
and the nine document requests seek the supporting
documentation. Plaintiffs have objected to all of the
discovery requests on the basis that they are
“premature.” (ECF No. 109-2).
argues that it is entitled to full and complete answers to
the discovery requests in order to “focus the issues in
dispute, ” and to determine whether Plaintiffs'
claims are preempted by federal law. (ECF No. 110 at 8-12).
Sperry contends that Plaintiffs' objections to the
discovery requests are generic and non-specific and, thus,
violate the applicable rules of civil procedure and case law
of this circuit. Furthermore, Sperry asserts that Plaintiffs
should be capable of responding to the discovery considering
that (1) the derailment occurred nearly two years ago, and
(2) Plaintiffs have taken comprehensive depositions of
response, Plaintiffs maintain that the interrogatories and
document requests are premature until fact and expert witness
discovery is completed. Plaintiffs argue that new and
additional theories of liability may be developed through
discovery; accordingly, their theories cannot be fully
articulated until that time. Plaintiffs point to the Manual
for Complex Litigation, § 11.34, to support their
position that an order requiring them to disclose their
theories of liability is not appropriate until the case
enters the summary judgment stage. (ECF No. 114).
seven interrogatories in dispute are known as
“contention interrogatories.” “Contention
interrogatories have been defined as interrogatories that
request a litigant ‘to state what it contends; to state
whether it makes a specified contention; to state all facts
upon which it bases a contention; to take a position, and
explain or defend that position ... or to state the legal or
theoretical basis for a contention.'” Taggart
v. Damon Motor Coach, No. 5:05-CV-00191, 2007 WL 152101,
at *7 (N.D. W.Va. Jan. 17, 2007) (quoting B. Braun Med.
Inc. v. Abbott Lab., 155 F.R.D. 525, 527 (E.D. Pa.
1994)). Contention interrogatories are expressly permitted by
Fed.R.Civ.P. 33(a)(2) and are considered useful to
“help pin down an opponent's legal theories in a
case as well as the primary facts supporting them.”
Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173
F.R.D. 651, 652 (D. Md. 1997)).
most courts agree that “[d]ue to the nature of
contention interrogatories, they are more appropriately used
after a substantial amount of discovery has been
conducted-typically at the end of the discovery
period.” Capacchione v. Charlotte-Mecklenburg Board
of Education, 182 F.R.D. 486, 489 (W.D. N.C. 1998).
Premature contention interrogatories are discouraged for
several reasons. First, there is “the unfairness of
requiring a party to prematurely articulate theories which
have not yet been fully developed.” Cornell
Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D.
55, 66 (N.D.N.Y. 2003). In addition, “a lawyer's
unwillingness to commit to a position without an adequately
developed record will likely lead to vague, ambiguous
responses, ” which are effectively useless.
Taggert, 2007 WL 152101, at *8 (citing In re
Convergent Technologies Sec. Litig., 108 F.R.D. 328, 338
(N.D. Cal. 1985)). Moreover, in cases where the parties
anticipate the production of “an expert report which
will touch on the very contentions at issue, the Court should
normally delay contention discovery until after the expert
reports have been served, which may then render moot any
further contention discovery.” BB & T Corp. v.
United States, 233 F.R.D. 447, 450-51 (M.D. N.C. 2006)
(citing United States v. Duke Energy Corp., 208
F.R.D. 553, 558 (M.D. N.C. 2002)).
although the case has been pending on the court's docket
for more than a year, discovery is not nearing its end. One
of Plaintiffs' experts only recently examined the track
at issue, and no expert reports have been exchanged.
Accordingly, the undersigned finds that Sperry's
contention interrogatories are premature and DENIES, without
prejudice, Sperry's motion to compel answers to the
interrogatories. The court notes that Plaintiffs have not
objected to the interrogatories on any ground other than
their prematurity. Therefore, Plaintiffs shall be required to
respond to the interrogatories in conjunction with or very
after shortly after the production of expert reports, and
prior to the close of all discovery. See
Capacchione, 182 F.R.D. at 489-90.
for the Production of Documents
also requests an order compelling Plaintiffs to produce
documents responsive to the first nine document requests set
out in Sperry's second set of discovery. Once again,
Plaintiffs claim that the requests are premature. The
undersigned disagrees. Although Plaintiffs may not have
finalized all of their theories of liability, the document
requests do not require a final production of documents,
rather they seek materials currently in Plaintiffs'
possession, custody, or control, which are relied upon to
support their discrete liability allegations. See
Fed. R. Civ. P. 34(a)(1). Thus, to the extent that Plaintiffs
have documents in their custody or control that they believe
support their claims, the documents should be produced to
Defendants. As additional responsive documents are
identified, Plaintiffs are required by Fed.R.Civ.P. 26(e) to
promptly supplement their answers to Sperry's requests
for the ...