United States District Court, D. Kansas
GENE HIRT and ERIC S. CLARK, Plaintiffs,
UNIFIED SCHOOL DISTRICT NO. 287, et al., Defendants.
MEMORANDUM AND ORDER
E. BIRZER UNITED STATES MAGISTRATE JUDGE.
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
Nature of the Case
the factual background and procedural posture of this case
have been thoroughly explored in previous orders,
Court will only discuss the same as is relevant to the
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,  which they did on April 10,
2018. As set forth in that Third Amended
Complaint,  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,  and of the Kansas Open Records
Plaintiffs' claims stem from a July 13, 2015 letter sent
to Mr. Hirt by Mr. Turner. 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.”
Scheduling Order in this case was entered on September 26,
2017. As pertinent here, it states no party may
serve more than 60 interrogatories, including all discrete
subparts, on any other party. It also sets a discovery
completion deadline of July 1, 2018. 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. Defendants served one set
of interrogatories on each Plaintiff, consisting of 17
interrogatories in each set.
Plaintiff's Motion to Compel (ECF No. 103)
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.
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. Defendants state they objected to put
Plaintiffs on notice they were, in Defendants' view,
getting close to reaching their limit of 60 interrogatories.
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. 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
does allow parties to increase the limit on interrogatories
if stipulated or ordered by the court,  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. . . ."
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
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.” 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.
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
Duty to Confer
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.