1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KORY T. O’BRIEN, Case No.: 18-cv-00980-BAS-MDD
12 Plaintiff, ORDER DENYING PLAINTIFF'S 13 v. MOTION TO COMPEL DISCOVERY RESPONSES 14 LISA GULARTE, et al., Defendants. 15 16 17 INTRODUCTION 18 Plaintiff Kory T. O’Brien (“Plaintiff”), a state prisoner proceeding pro se 19 and in forma pauperis, has filed a Motion to Compel (“Motion”) discovery 20 responses. (ECF No. 58). The dispute pertains to Plaintiff’s propounded 21 interrogatory requests to Defendants Anthony Ekwosi1, Ed Flores, and Mike 22 Bierbaum (collectively, “Defendants”). Plaintiff met and conferred with 23 Defendants counsel on November 28, 2019 in an attempt “to resolve issue[s] 24 of discovery.” (ECF No. 58-2 at 24). Following the meet and confer, the 25 parties were unable to resolve five pending issues: Plaintiff’s interrogatories 26 1 numbered 2, 3, 4, 5 and 9. (ECF No. 58-2). 2 For the reasons stated herein, the Court DENIES Plaintiff’s Motion to 3 Compel. (ECF No. 58). 4 LEGAL STANDARD 5 The Federal Rules of Civil Procedure authorize parties to obtain 6 discovery of “any nonprivileged matter that is relevant to any party’s claim or 7 defense and proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1). 8 District courts have broad discretion to limit discovery to prevent its abuse. 9 See FED. R. CIV. P. 26(b)(2). Courts must limit discovery where the party 10 seeking the discovery “has had ample opportunity to obtain the information by discovery in the action,” where the proposed discovery is “unreasonably 11 cumulative or duplicative,” or where the information is “obtain[able] from 12 some other source that is more convenient, less burdensome, or less 13 expensive.” Id. 14 DISCUSSION 15 At issue are Plaintiff’s Interrogatories numbers 2, 3, 4, 5 and 9. 16 Defendants oppose Plaintiff’s Motion asserting its untimeliness because it 17 was brought “more than one hundred days after Defendants served 18 responses, and seventy days after the motion to compel cut-off date.” (ECF 19 No. 60 at 1). In their Statement of Discovery Dispute, Defendants 20 supplemented their responses and object substantively to the Interrogatories 21 at issue. (ECF No. 60-1). In addition, Plaintiff further requests reasonable 22 expenses in bringing this Motion to Compel. (ECF No. 58). 23 The Court agrees that Plaintiff’s Motion is untimely. Plaintiff has 24 offered no justification for the delay. The Court could deny Plaintiff’s Motion 25 solely due to its untimeliness. However, taking into consideration Plaintiff’s 26 pro se and incarcerated status, the pending issues will be addressed on their 1 A. Interrogatories 2 Federal Rule of Civil Procedure Rule 33 governs interrogatories to 3 parties. See Fed. R. Civ. P. 33. An interrogatory may relate to any matter 4 that may be inquired of under Rule 26(b). FED. R. CIV. P. 33(a)(2). The 5 responding party must answer each interrogatory by stating the appropriate 6 objections with specificity or, to the extent the interrogatory is not objected 7 to, by “answer[ing] separately and fully in writing under oath.” FED. R. CIV. P. 33(b). The responding party has the option in certain circumstances to 8 answer an interrogatory by specifying responsive records and making those 9 records available to the interrogating party. FED. R. CIV. P. 33(d). 10 Courts “will generally find [interrogatories] overly broad and unduly 11 burdensome on their face to the extent they ask for every fact which supports 12 identified allegations.” Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 404- 13 05 (D. Kan. 1998). Although interrogatories “need not be phrased with 14 technical precision, they should give a reasonably clear indication of the 15 information sought by the propounding party.” Heritage Furniture, Inc. v. 16 American Heritage, Inc., 28 F.R.D. 319, 320 (D. Conn. 1961). Moreover, 17 interrogatories will be quashed, absolving defendants from answering them, 18 where they are extremely argumentative. Rhodes v. Houston, 258 F. Supp. 19 546, 584 (D. Neb. 1966). 20 a. Interrogatories Nos. 2, 3, 4, and 5 21 The issues regarding the responses to Interrogatories Nos. 2, 3, 4, and 5 22 are similar and will be treated together. 23 Interrogatory No. 2, directed to Defendant Bierbaum, requires him to 24 identify whether he reports to L. Gularte about matters in his employ. After 25 disputing the question, Defendant Bierbaum supplemented his answer to 26 “Yes.” This answer is an appropriate response. 1 Interrogatory No. 3, directed to Defendant Ekwosi, asks why he allowed 2 inmate Thompson to work in Plaintiff’s assigned area knowing Plaintiff 3 voiced concerns about violence from inmate Thompson. Defendant Ekwosi 4 objected that the request is vague as to the date in question and responded 5 that he did not believe inmate Thompson was assigned to work in the sewing 6 department on July 17, 2017. Defendant’s response specifically discussed the 7 date in question, as alleged in Plaintiff’s complaint. (ECF No. 1 at 3). Because Defendant Ekwosi asserted that he did not believe inmate 8 Thompson was assigned to that area, on the date in question, his response is 9 satisfactory. 10 Interrogatory No. 4, directed to Defendant Bierbaum, requires him to 11 identify whether he allowed inmate Thompson to work in his department 12 after Plaintiff voiced concerns for his safety. Defendant Bierbaum first 13 responded that Plaintiff did not voice any concerns to him. His initial 14 response was deficient. In his amended responses, Defendant Bierbaum 15 clarified that he was not aware of Plaintiff’s concerns. This response is 16 satisfactory because Defendant Bierbaum was not made aware of Plaintiff’s 17 concerns and would not be able to answer whether he allowed inmate 18 Thompson in the sewing department after being informed of such concerns. 19 Interrogatory No. 5, directed to Defendant Flores, requires him to 20 identify why he, along with his co-worker, Defendant Ekwosi, allowed inmate 21 Thompson to stay in the sewing department. Defendant Flores asserted that 22 he does not have authority over job assignments and further detailed the 23 process of inmate assignment. As Defendant Flores does not have authority 24 to assign inmates to specific areas, he is unable to express why inmate 25 Thompson was assigned to the sewing department. Therefore, his answer is 26 sufficient. 1 Accordingly, Defendant’s supplemental responses, in their Statement of 2 Discovery Dispute, are adequate and satisfactory answers to Plaintiff’s 3 interrogatories. No further responses are required from Defendants as to 4 interrogatories Nos. 2, 3, 4, and 5. 5 Plaintiff’s Motion to Compel Further Response to Interrogatories Nos. 2, 6 3, 4, and 5 is therefore DENIED. 7 b. Interrogatory No. 9 Interrogatory No. 9, directed to Defendant Ekwosi, asks: 8
9 “Defendant A. Ekwosi, as a state official employee of CALPIA, is there any policy that you, A. Ekwosi, were allowed to sin[] that 10 your comprehension of the English language would not allow the 11 understanding of the English Language word of “comfort” as defined in the Oxford New Desk Dictionary and Thesaurus Third 12 Edition copy right 2009 printed 2009 to mean as the state of 13 physical well-being? If so please indicate policy.”
14 (ECF No. 58-2 at 15). 15 Defendant Ekwosi objects on grounds that the interrogatory 1) lacks 16 foundation, 2) is argumentative, and 3) is vague and ambiguous. 17 Interrogatory No. 9 is argumentative and vague. Defendant Ekwosi’s 18 objection is sustained and no further response is required.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KORY T. O’BRIEN, Case No.: 18-cv-00980-BAS-MDD
12 Plaintiff, ORDER DENYING PLAINTIFF'S 13 v. MOTION TO COMPEL DISCOVERY RESPONSES 14 LISA GULARTE, et al., Defendants. 15 16 17 INTRODUCTION 18 Plaintiff Kory T. O’Brien (“Plaintiff”), a state prisoner proceeding pro se 19 and in forma pauperis, has filed a Motion to Compel (“Motion”) discovery 20 responses. (ECF No. 58). The dispute pertains to Plaintiff’s propounded 21 interrogatory requests to Defendants Anthony Ekwosi1, Ed Flores, and Mike 22 Bierbaum (collectively, “Defendants”). Plaintiff met and conferred with 23 Defendants counsel on November 28, 2019 in an attempt “to resolve issue[s] 24 of discovery.” (ECF No. 58-2 at 24). Following the meet and confer, the 25 parties were unable to resolve five pending issues: Plaintiff’s interrogatories 26 1 numbered 2, 3, 4, 5 and 9. (ECF No. 58-2). 2 For the reasons stated herein, the Court DENIES Plaintiff’s Motion to 3 Compel. (ECF No. 58). 4 LEGAL STANDARD 5 The Federal Rules of Civil Procedure authorize parties to obtain 6 discovery of “any nonprivileged matter that is relevant to any party’s claim or 7 defense and proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1). 8 District courts have broad discretion to limit discovery to prevent its abuse. 9 See FED. R. CIV. P. 26(b)(2). Courts must limit discovery where the party 10 seeking the discovery “has had ample opportunity to obtain the information by discovery in the action,” where the proposed discovery is “unreasonably 11 cumulative or duplicative,” or where the information is “obtain[able] from 12 some other source that is more convenient, less burdensome, or less 13 expensive.” Id. 14 DISCUSSION 15 At issue are Plaintiff’s Interrogatories numbers 2, 3, 4, 5 and 9. 16 Defendants oppose Plaintiff’s Motion asserting its untimeliness because it 17 was brought “more than one hundred days after Defendants served 18 responses, and seventy days after the motion to compel cut-off date.” (ECF 19 No. 60 at 1). In their Statement of Discovery Dispute, Defendants 20 supplemented their responses and object substantively to the Interrogatories 21 at issue. (ECF No. 60-1). In addition, Plaintiff further requests reasonable 22 expenses in bringing this Motion to Compel. (ECF No. 58). 23 The Court agrees that Plaintiff’s Motion is untimely. Plaintiff has 24 offered no justification for the delay. The Court could deny Plaintiff’s Motion 25 solely due to its untimeliness. However, taking into consideration Plaintiff’s 26 pro se and incarcerated status, the pending issues will be addressed on their 1 A. Interrogatories 2 Federal Rule of Civil Procedure Rule 33 governs interrogatories to 3 parties. See Fed. R. Civ. P. 33. An interrogatory may relate to any matter 4 that may be inquired of under Rule 26(b). FED. R. CIV. P. 33(a)(2). The 5 responding party must answer each interrogatory by stating the appropriate 6 objections with specificity or, to the extent the interrogatory is not objected 7 to, by “answer[ing] separately and fully in writing under oath.” FED. R. CIV. P. 33(b). The responding party has the option in certain circumstances to 8 answer an interrogatory by specifying responsive records and making those 9 records available to the interrogating party. FED. R. CIV. P. 33(d). 10 Courts “will generally find [interrogatories] overly broad and unduly 11 burdensome on their face to the extent they ask for every fact which supports 12 identified allegations.” Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 404- 13 05 (D. Kan. 1998). Although interrogatories “need not be phrased with 14 technical precision, they should give a reasonably clear indication of the 15 information sought by the propounding party.” Heritage Furniture, Inc. v. 16 American Heritage, Inc., 28 F.R.D. 319, 320 (D. Conn. 1961). Moreover, 17 interrogatories will be quashed, absolving defendants from answering them, 18 where they are extremely argumentative. Rhodes v. Houston, 258 F. Supp. 19 546, 584 (D. Neb. 1966). 20 a. Interrogatories Nos. 2, 3, 4, and 5 21 The issues regarding the responses to Interrogatories Nos. 2, 3, 4, and 5 22 are similar and will be treated together. 23 Interrogatory No. 2, directed to Defendant Bierbaum, requires him to 24 identify whether he reports to L. Gularte about matters in his employ. After 25 disputing the question, Defendant Bierbaum supplemented his answer to 26 “Yes.” This answer is an appropriate response. 1 Interrogatory No. 3, directed to Defendant Ekwosi, asks why he allowed 2 inmate Thompson to work in Plaintiff’s assigned area knowing Plaintiff 3 voiced concerns about violence from inmate Thompson. Defendant Ekwosi 4 objected that the request is vague as to the date in question and responded 5 that he did not believe inmate Thompson was assigned to work in the sewing 6 department on July 17, 2017. Defendant’s response specifically discussed the 7 date in question, as alleged in Plaintiff’s complaint. (ECF No. 1 at 3). Because Defendant Ekwosi asserted that he did not believe inmate 8 Thompson was assigned to that area, on the date in question, his response is 9 satisfactory. 10 Interrogatory No. 4, directed to Defendant Bierbaum, requires him to 11 identify whether he allowed inmate Thompson to work in his department 12 after Plaintiff voiced concerns for his safety. Defendant Bierbaum first 13 responded that Plaintiff did not voice any concerns to him. His initial 14 response was deficient. In his amended responses, Defendant Bierbaum 15 clarified that he was not aware of Plaintiff’s concerns. This response is 16 satisfactory because Defendant Bierbaum was not made aware of Plaintiff’s 17 concerns and would not be able to answer whether he allowed inmate 18 Thompson in the sewing department after being informed of such concerns. 19 Interrogatory No. 5, directed to Defendant Flores, requires him to 20 identify why he, along with his co-worker, Defendant Ekwosi, allowed inmate 21 Thompson to stay in the sewing department. Defendant Flores asserted that 22 he does not have authority over job assignments and further detailed the 23 process of inmate assignment. As Defendant Flores does not have authority 24 to assign inmates to specific areas, he is unable to express why inmate 25 Thompson was assigned to the sewing department. Therefore, his answer is 26 sufficient. 1 Accordingly, Defendant’s supplemental responses, in their Statement of 2 Discovery Dispute, are adequate and satisfactory answers to Plaintiff’s 3 interrogatories. No further responses are required from Defendants as to 4 interrogatories Nos. 2, 3, 4, and 5. 5 Plaintiff’s Motion to Compel Further Response to Interrogatories Nos. 2, 6 3, 4, and 5 is therefore DENIED. 7 b. Interrogatory No. 9 Interrogatory No. 9, directed to Defendant Ekwosi, asks: 8
9 “Defendant A. Ekwosi, as a state official employee of CALPIA, is there any policy that you, A. Ekwosi, were allowed to sin[] that 10 your comprehension of the English language would not allow the 11 understanding of the English Language word of “comfort” as defined in the Oxford New Desk Dictionary and Thesaurus Third 12 Edition copy right 2009 printed 2009 to mean as the state of 13 physical well-being? If so please indicate policy.”
14 (ECF No. 58-2 at 15). 15 Defendant Ekwosi objects on grounds that the interrogatory 1) lacks 16 foundation, 2) is argumentative, and 3) is vague and ambiguous. 17 Interrogatory No. 9 is argumentative and vague. Defendant Ekwosi’s 18 objection is sustained and no further response is required. 19 Plaintiff’s Motion to Compel Further Response to Interrogatory No. 4, 20 propounded to Defendant Ekwosi, is DENIED. 21 B. Expenses for bringing a motion to compel 22 Plaintiff requests the sum of $300.00, to be paid by Defendants, as a 23 reasonable expense in obtaining this Motion “pursuant to Rule 37 (a)(4).” 24 (ECF No. 58 at 1). Federal Rule of Civil Procedure Rule 26(c)(3) provides that “Rule 25 26 37(a)(5) applies to the award of expenses.” FED. R. CIV. P. 26(c)(3). Having 1 || denied Plaintiff's Motion to Compel, there is no basis for an award of 2 ||expenses against Defendants. See Fed. R. Civ. P. 37(a)(5)(B). 3 Plaintiff's request for expenses, under Rule 37(a)(5), is DENIED. 4 CONCLUSION 5 For the forgoing reasons, Plaintiff's Motion to Compel is DENIED. The g || Court finds the responses provided by Defendants are sufficient under the 7 ||Rules. Accordingly, Plaintiff's request for expenses is DENIED. 8 9 IT IS SO ORDERED. 10 Dated: February 6, 2020
12 Hon. Mitchell D. Dembin 3 United States Magistrate Judge
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