United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
A. Eifert United States Magistrate Judge
is Plaintiffs' Motion to Compel and Motion for Leave to
Serve Interrogatories in Excess of Twenty-five, (ECF No. 29).
Defendant CNE Poured Walls, Inc. (“CNE”) has
filed a response in opposition to the motion, and Plaintiffs
have replied. (ECF Nos. 43, 44). For the reasons that follow,
the Court DENIES the Motion to Compel and
DENIES, in part, and
GRANTS, in part, the Motion for Leave to
Serve Interrogatories in Excess of Twenty-Five.
respect to the Motion to Compel, the parties have narrowed
their dispute to four interrogatories and one request for
production of documents. Interrogatory Nos. 8, 9, and 10,
contrary to Plaintiffs' assertion, are contention
interrogatories, because they ask CNE to provide the facts
and identify witnesses and documents, which underlie
CNE's contention that it is not liable for the damages
claimed by Plaintiffs. See Johnson v. North
Carolina Department of Justice, 2018 WL 5831997, at
*7 (E.D. N.C. Nov. 7, 2018). “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 Situations v. Duke Energy Corp., 208
F.R.D. 553, 558 (M.D. N.C. 2002)).
case, CNE's expert disclosures are not due until August
27, 2019, and discovery does not close until September 26,
2019. (ECF No. 14). In addition, Plaintiffs filed an amended
complaint against CNE on April 18, 2019, and a cross-claim
was asserted against CNE on June 25, 2019. (ECF Nos. 23, 40).
Accordingly, while discovery has been ongoing since March,
there is merit to CNE's argument that contention
interrogatories are premature, making the motion to compel
answers to contention interrogatories premature.
the undersigned feels compelled to remind the parties of the
following points. Contention interrogatories “are
overly broad and unduly burdensome on their face if they seek
‘all facts' supporting a claim or defense, such
that the answering party is required to provide a narrative
account of its case … [S]uch interrogatories will not
be overly broad if they only ask for the ‘principal or
material facts which support an allegation or
defense.'” Mach. Sols., Inc. v. Doosan
Infracore Am. Corp., 323 F.R.D. 522, 528 (D.S.C. 2018)
(quoting in Moses v. Halstead, 236 F.R.D. 667, 674
(D. Kan. 2006)). Plaintiffs' Interrogatory No. 8, as
currently written, suffers from this overbreadth and
burdensomeness. Interrogatory No. 9, which is a follow-up to
Interrogatory No. 8, is likewise overly broad, unless No. 8
is rewritten in a more focused manner.
addition, to the extent CNE can presently respond to
Plaintiffs' contention interrogatories, CNE should do so.
Because CNE has an ongoing to duty to timely supplement and
correct discovery answers as additional information becomes
available, CNE should not wait until the deadline for expert
witness disclosures before providing a response to the
contention interrogatories, if information is currently
available to CNE that is responsive to the questions. See
Precision Fabrics Grp., Inc. v. Tietex Int'l, Ltd.,
297 F.Supp.3d 547, 556 (D.S.C. Feb. 25, 2018) (“Courts
have recognized that answers to contention interrogatories
may evolve over time, and ‘an answer to an
interrogatory does not conclusively bind the answering party
in all instances.'”) (quoting Marcoin, Inc. v.
Edwin K. Williams & Co., 605 F.2d 1325, 1328 (4th
Cir. 1979)). CNE runs the risk of having information or
materials precluded from evidence by failing to timely
supplement its interrogatory responses. Id.
Interrogatory No. 18, Plaintiffs originally sought
information related to every other residential home
construction project at which CNE performed work in the past
twenty years. After CNE objected to the interrogatory as
being overly broad, Plaintiffs limited the temporal scope of
the interrogatory to the prior ten years. In Request for
Production No. 29, Plaintiffs requested copies of all plans
and drawings for other homes with reinforced poured concrete
foundation walls built by CNE in West Virginia. Plaintiffs
argue that they are entitled to the information sought in the
interrogatory and request for production of documents,
because they have alleged fraud and are aware that CNE
previously was sued for fraud based on its actions in a home
construction project in Ohio.
Plaintiffs want to know about other instances where CNE's
reinforced poured concrete foundation walls have failed, or
CNE has been sued for fraud, then they should ask those
questions. Indeed, Plaintiffs essentially did ask those
questions in Interrogatory Nos. 7, 17, and Request for
Production No. 13 when they asked about all lawsuits,
criminal proceedings, arbitrations, and complaints arising
from other CNE construction projects. Plaintiffs have
demonstrated no legal or factual basis justifying their free
access to extensive customer information, plans, drawings,
and related information on all CNE
projects in West Virginia, or elsewhere-much of which will be
irrelevant to the issues in dispute. These requests are
simply not proportional to the needs of the case.
for Leave to Ask Questions in Excess of
Plaintiffs ask leave to serve CNE with seven interrogatories
in excess of the amount allowed by the Rules of Civil
Procedure. CNE has not responded to the request. When
considering a motion for leave to serve interrogatories in
excess of the twenty-five permitted by Rule 33(a), the court
looks at whether good cause exists for allowing the
additional interrogatories. Am. Chiropractic Ass'n v.
Trigon Healthcare, Inc., No. 1:00CV00113, 2002 WL
534459, at *3 (W.D. Va. Mar. 18, 2002) (citing
Capacchione v. Charlotte-Mecklenburg Sch., 182
F.R.D. 486, 492 (W.D. N.C. 1998)). Good cause does not exist
(i) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is
more convenient, less burdensome, or less expensive; (ii) the
party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(iii) the proposed discovery is outside the scope permitted
by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2). “Frequently, the question
becomes whether the requesting party has adequately shown
that the benefits of additional interrogatories outweigh the
burden to the opposing party.” Rawl v. S.C.
Dep't of Soc. Servs., No. 2:14-CV-02772-DCN, 2015 WL