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Hirt v. Unified School District No. 287

United States District Court, D. Kansas

July 20, 2018

GENE HIRT and ERIC S. CLARK, Plaintiffs,
v.
UNIFIED SCHOOL DISTRICT NO. 287, et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiffs' Motion to Compel (“Motion”) (ECF No. 103). The Court has considered Plaintiff's Motion and Brief in Support (ECF No. 104), Defendants' Response in Opposition to Plaintiffs' Motion to Compel (ECF No. 108), and Plaintiff's Reply (ECF No. 111). For the reasons set forth below, Plaintiff's Motion is GRANTED IN PART AND DENIED IN PART.

         I. Background

         A. Nature of the Case

         Because the factual background and procedural posture of this case have been thoroughly explored in previous orders, [1] the Court will only discuss the same as is relevant to the present Motion.

         This is Plaintiffs' third motion to compel. At the same this Court ruled on Plaintiffs' previous two motions to compel, the Court granted Plaintiffs leave to file a Third Amended Complaint, [2] which they did on April 10, 2018.[3] As set forth in that Third Amended Complaint, [4] Plaintiffs are suing their local school district, Unified School District No. 287 (District), and Superintendent Jerry Turner for alleged violations of their Constitutional rights pursuant to 42 U.S.C. § 1983, of the Kansas Open Meetings Act, [5] and of the Kansas Open Records Act.[6] Plaintiffs' claims stem from a July 13, 2015 letter sent to Mr. Hirt by Mr. Turner.[7] The letter informed Mr. Hirt he would no longer be allowed on District property because of his inability on prior occasions to express himself “in a civil and socially acceptable manner.”[8]

         The Scheduling Order in this case was entered on September 26, 2017.[9] As pertinent here, it states no party may serve more than 60 interrogatories, including all discrete subparts, on any other party.[10] It also sets a discovery completion deadline of July 1, 2018.[11] As such, the Court notes discovery is now closed. During the discovery period, Plaintiffs served ten sets of interrogatories on Defendants, consisting of 56 interrogatories.[12] Defendants served one set of interrogatories on each Plaintiff, consisting of 17 interrogatories in each set.[13]

         B. Plaintiff's Motion to Compel (ECF No. 103)

         As stated above, this is Plaintiffs' third motion to compel. The current Motion involves Interrogatory Nos. 38, 39, 40, 42, and 43 of Plaintiffs' Seventh Set of Interrogatories. Plaintiffs ask this Court to compel complete answers to Interrogatory Nos. 38 and 40. Defendants argue they have fully answered Interrogatory No. 38 and no answer is required to Interrogatory No. 40 because it seeks an improper opinion regarding hypothetical facts not relevant to the case.

         But, Plaintiffs' Motion mostly revolves around Defendants' supernumerary objections. When responding to the above interrogatories, Defendants objected to each by stating it contained discrete subparts, the use of which was was an improper attempt to circumvent the limitation on the number of interrogatories imposed by the Scheduling Order. Despite objecting to the interrogatories, Defendants answered each one except for Interrogatory No. 40, which they objected to on other grounds.[14] Defendants state they objected to put Plaintiffs on notice they were, in Defendants' view, getting close to reaching their limit of 60 interrogatories.

         II. Interrogatory Practice

         In 1993, Fed.R.Civ.P. 33 was amended to limit the number of interrogatories one party could serve on another to 25, inclusive of all discrete subparts.[15] This was done not only to reduce the frequency and increase the efficiency of interrogatory practice, but also to curb the costs, abuse and harassment that can come from inundating a party with excessive interrogatories.[16]

         Rule 33 does allow parties to increase the limit on interrogatories if stipulated or ordered by the court, [17] as was done in the Scheduling Order here where the maximum number was set at 60 interrogatories per party. An increase in the number of allowable interrogatories does not, however, mean parties can ignore the other guidelines surrounding the use of interrogatories in this District. These guidelines are well summarized in Hilt v. SFC Inc:

“Each interrogatory should consist of a brief, simple, direct, and unambiguous question, dealing with one point only. The question should be objective and nonargumentative. They should not seek narrative answers or attempt to argue, cross-examine, or impeach. They should be written so that the question and the expected answer can be understood easily when read at trial . . . .
Whenever a decision is made to propound interrogatories, counsel should have clearly in mind what information he seeks and what he intends to do with it. Interrogatories should be targeted at discrete issues, rather than blanketing the case, and should be few in number. . . ."[18]

         Hilt further provides:

Whatever may be said for the virtues of discovery and the liberality of the federal rules, which perhaps all courts recognize, there comes at some point a reasonable limit against indiscriminately hurling interrogatories at every conceivable detail and fact which may relate to a case. Fed.R.Civ.P. 1 states that the rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” Indiscriminate use of blockbuster interrogatories . . . do not comport with the just, speedy, and inexpensive determination of the action. To require answers for them would more likely cause delay and unreasonable expense of time, energy, and perhaps money.
The nature of the federal discovery rules themselves suggests they are intended to facilitate reasonable discovery, not unduly burdensome, but selected by each party to fit the needs of the particular case. The discovery rules provide no absolute, unharnessed right to find out every conceivable, relevant fact that opposing litigants know. . . .
If the drafters of the rules had intended to authorize interrogatories with an impact as wide as the entire case, they could more realistically and easily have adopted a simple rule to require every pleading to be accompanied by a statement of all the facts supporting every allegation and the identifications of every knowledgeable person and supporting document. The rules, of course, contain no such requirement. They contemplate instead that discovery in each case be sensibly organized and managed-and often limited-to provide each party with reasonable opportunity to learn information essential to a fair resolution of the case.[19]

         This Court, based on the above principles and the interrogatories it has reviewed in ruling on Plaintiffs' three motions to compel, finds Plaintiffs' use of interrogatories in this case to be excessive, burdensome and bordering on harassment. The Court recognizes Plaintiffs' pro se status, but nevertheless expects them to “follow the same rules of procedure that govern [represented] litigants.”[20] However, because the Scheduling Order allows 60 interrogatories per party and because pro se parties should be granted some leeway, the Court will rule on the substantive portions of the instant Motion, that being whether Defendants should be compelled to answer Interrogatory Nos. 38 and 40.

         But, the Court feels it unnecessary to rule on Plaintiff's concerns regarding Defendants' supernumerary objections because (1) discovery in this case closed on July 1, 2018; (2) due to the close of discovery, no more interrogatories will be allowed; and (3) Defendants, although objecting on supernumerary grounds, proceeded to answer the interrogatories.

         III. Discussion

         A. Duty to Confer

         Pursuant to D. Kan. Rule 37.2, this Court “will not entertain any motion to resolve a discovery dispute” unless counsel, or in this case, the moving party, “has conferred or has made reasonable effort to confer with opposing counsel” before filing a motion. Plaintiffs' Motion states they conferred via email and telephone with defense counsel regarding their concerns with Defendants' responses to the interrogatories at issue. The parties, however, were unable to resolve their disputes. Based on these interactions, the Court is satisfied Plaintiffs and defense counsel have adequately conferred as required by the above-cited rule. The Court now turns to discussion of Interrogatory Nos. 38 and 40.[21]

         B. ...


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