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Rowell v. NCO Financial Systems, Inc.

United States District Court, D. Kansas

May 22, 2014

KAREN ROWELL, Plaintiff,
v.
NCO FINANCIAL SYSTEMS, INC., Defendant.

ORDER

JAMES P. O'HARA, Magistrate Judge.

This action arises from defendant NCO Financial Systems, Inc.'s ("NCO") efforts to collect past due student loan payments from plaintiff Karen Rowell. Plaintiff alleges defendant made harassing collection calls to her in violation of the Telephone Consumer Protection Act ("TCPA"). Currently before the undersigned U.S. Magistrate Judge, James P. O'Hara, is a motion to compel plaintiff to supplement her answers to defendant's interrogatories and requests for production (ECF doc. 33). Specifically, defendant asks that the court order plaintiff to respond fully to Interrogatory Nos. 3, 6, 8-9, 14 and 16, and Requests for Production Nos. 1-5, 7, 16, and 19. In response to defendant's motion, plaintiff asks that the court award attorneys' fees as a sanction against defendant to deter it from "unnecessarily filing future motions." For the reasons discussed below, defendant's motion is granted and plaintiff's request for sanctions is denied.

On January 30, 2014, defendant served its first set of interrogatories and requests for production.[1] Plaintiff served her answers on February 27, 2014.[2] Defendant sent an e-mail concerning plaintiff's discovery responses on March 12, 2014.[3] In response, plaintiff provided a supplemental response to defendant's discovery requests in an attempt to address defendant's concerns.[4] After several failed attempts to resolve the discovery dispute, defendant filed its motion to compel on April 14, 2014.[5] Plaintiff filed her response on April 28, 2014.[6] Defendant filed its reply on May 6, 2014.[7]

Fed. R. Civ. P. 26(b)(1) provides that generally the scope of discovery is limited to the parties' pleaded claims and defenses, but that "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." When a party files a motion to compel and asks the court to overrule objections, the objecting party must specifically show in its response to the motion how each discovery request is objectionable.[8] Objections initially raised but not supported in response to the motion to compel are deemed abandoned.[9] However, if the discovery requests appear facially objectionable in that they are overly broad or seek information that does not appear relevant, the burden is on the movant to demonstrate how the requests are not objectionable.[10] With these standards in mind, the court addresses plaintiff's objections and responses to the disputed requests.

I. Objections to Requests

Under Rule 33(b)(3) of the Federal Rules of Civil Procedure, the responding party must answer each interrogatory "to the extent it is not objected to." Of the disputed interrogatories, plaintiff served answers and objections to Interrogatory Nos. 3, 6, and 9. The court has substantial discretion to determine the propriety of such requests and the sufficiency of responses.[11] An objection and answer preserves nothing and serves only to waste the time and resources of both the parties and the court.[12] Answering discovery requests "subject to" objections is "manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure."[13] As evidenced by the parties' briefs, "such practice leaves the requesting party uncertain as to whether the question has been fully answered or whether only a portion of the question has been answered."[14] The court could find "whenever [plaintiff's] answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands."[15] Nonetheless, the court will address the validity of plaintiff's objections.

A. Objection Based on Number of Interrogatories

Under Rule 33(a)(1) of the Federal Rules of Civil Procedure, a party may serve a maximum of twenty-five interrogatories upon any other party, including discrete subparts, unless the court or stipulation from the opposing party allows more. The scheduling order entered in this case on January 15, 2014, allowed each party to serve thirty interrogatories, inclusive of subparts.[16] Defendant served its first set of interrogatories (Nos. 1 through 17) on January 30, 2014.[17]

Plaintiff objects on the basis that defendant posed more than the thirty interrogatories permitted by the scheduling order. Specifically, plaintiff contends that Interrogatory No. 3 should "[a]t the very least" count as five interrogatories and Interrogatory No. 6 should count as twenty interrogatories.[18] Similarly, plaintiff argues that Interrogatory No. 2 should count as multiple interrogatories because it "asks for dozens of pieces of information on... at least five separately themed topics."[19] Plaintiff asserts that there "are many other examples" and thus, her objection is "legitimate."[20] Defendant disagrees.

Kansas courts have applied the "common-theme" standard in determining whether subparts should be counted as separate interrogatories.[21] That is, an interrogatory containing subparts directed at eliciting details concerning a common theme is considered a single question.[22] For example, questions about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.[23] Therefore, subparts of an interrogatory which relate to a common theme will not count as separate interrogatories for purposes of the applicable numerical limit, while those subparts not related to a common theme will be counted as separate interrogatories. With the common-theme standard and its previous applications in mind, the court makes the following specific findings with regard to the disputed interrogatories.

Interrogatory No. 3 requests that plaintiff:
Identify each communication you had with NCO, and each communication NCO had with you, including:
a. the type of communication (letter, call, email, fax, telegram);
b. the date & time of the communication;
c. the substance of the communication;
d. the person initiating the communication;
e. the parties to the communication;
f. the following particulars of the communication:
i. (for telephone calls) the number NCO is alleged to have called to reach you;
ii. (for telephone calls) the number of the caller;
iii. (for telephone calls) the result of the call (e.g., conversed, answered, not answered, answering machine (or voicemail) answered, (no) message left; caller hung up, called party hung up, disconnect, etc.);
iv. (for telephone calls) the purpose of the communication between the caller and the called party;
v. (for telephone calls) the substance of the communication between the caller and the called party, if any;
vi. (for telephone calls) where you were when you received or made each of the calls;
vii. (for telephone calls) where you were when you received or made each of the calls;
viii. (for e-mail communications) the sender's email address;
ix. (for e-mail communications) the recipient's email address;
x. (for facsimile communications) the sender's facsimile number;
xi. (for facsimile communications) the recipient's facsimile number;
xii. (for letters) the addressee's name and address; and
xiii. (for letters) the recipient's name and address.

Plaintiff asserts that Interrogatory No. 3 should count as five interrogatories. Defendant responds that the common theme of Interrogatory No. 3 is the identification of plaintiff's communications with defendant and the details relating to those communications-who, what, when, and where. The court agrees. The common theme of this question is communications between plaintiff and defendant. Subparts seeking "who, what, when, where, and how" information logically and factually subsumed within the primary question are not counted as separate interrogatories.[24] The subparts of this question delineate details that should be included in response to the primary question and are consistent with the common theme. Thus, this question constitutes one interrogatory.

Interrogatory No. 6 asks plaintiff:

During the past four years, identify each communication you had with either the Florida Department of Education, the U.S. Department of Education, Sallie Mae, and/or Southwest Student Services Corporation, concerning or relating to the ...

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