United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DISCOVERY
H. RICH III UNITED STATES MAGISTRATE JUDGE
declaratory judgment action, on May 6, 2016, at the request
of counsel for plaintiff Gemini Insurance Company
(“Gemini”), I held a teleconference to resolve
disputes over the adequacy of the responses of defendant
Arundel Valley, LLC (“Arundel”) to Gemini’s
requests for production of documents and contention
interrogatories. See ECF No. 19 at 1. I determined
that I required further information, including identification
by paragraph number of responses remaining in dispute and
written argument on the merits, with citation to authority.
See id. at 1-2. I directed the parties to submit
simultaneous letter briefs, and simultaneous responses,
see id., which they have done. At issue are
Arundel’s responses to requests for production of
documents (“RFP”) Nos. 2-4 and interrogatories
(“Interrog.”) Nos. 7-23. For the reasons that
follow, and treating Gemini’s request as a motion to
compel, I grant it in part, with respect to RFP Nos. 2-4 and
Interrog. No. 23, and otherwise deny it.
RFP Nos. 2-4, Gemini’s motion is GRANTED on the basis
that Arundel offers no response to Gemini’s argument
that they are standard requests for documents that support
Arundel’s affirmative defenses.
Interrog. No. 23, Gemini’s motion is GRANTED on the
basis that I overrule Arundel’s objections that the
interrogatory constitutes a multipart question and that it
seeks the discovery of counsel’s legal theories. The
interrogatory, which asks Arundel to explain the defect in
the product at issue and/or the reason why that
product would not pass without objection in the trade, is not
multipart. These are essentially synonymous concepts and, in
any event, Arundel need address only one of them. Nor does
the question seek to elicit counsel’s legal theories.
Rather, it seeks to elicit facts underpinning the claim that
the product was defective.
is DIRECTED to provide documents responsive to RFP Nos. 2-4,
and to answer Interrog. No. 23, no later than June 24, 2016.
the remaining disputed discovery requests, Interrog. Nos.
7-22, the motion is DENIED for the reasons that follow.
Interrog. Nos. 7 and 22, I SUSTAIN Arundel’s objection
that they constitute multipart questions, in violation of
this court’s scheduling order limiting the parties
“to not more than 30 interrogatories per opposing side
(subparts not permitted)[, ]” ECF No. 6 at 1
(emphasis added). In addition, I SUSTAIN Arundel’s
objections that Interrog. No. 7 (i) seeks Arundel’s
legal theories, in that it asks Arundel to explain why
certain damages fall within the coverage grant of the Gemini
policy and why exclusions identified by Gemini in its
complaint do not apply to the damages recovered,
(ii) is overbroad, in that its definition of “state the
basis” essentially requires that Arundel state all
facts supporting that contention. See, e.g., Moses v.
Halstead, 236 F.R.D. 667, 674 (D. Kan. 2006)
(“[T]his court has made it clear that . . .
‘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.”) (footnote omitted); see also, e.g.,
Rowland v. Paris Las Vegas, No. 13CV2630-GPC (DHB), 2015
WL 4742502, at *2 (S.D. Cal. Aug. 11, 2015)
(“[C]ontention interrogatories should not require a
party to provide the equivalent of a narrative account of its
case, including every evidentiary fact, details of testimony
supporting witnesses, and the contents of supporting
documents.”) (citation and internal punctuation
Interrog. Nos. 8-15 and 17-18, I SUSTAIN Arundel’s
objections that these (i) constitute improper hypothetical
questions in that they ask that Arundel state the basis for
certain “claims” that Gemini infers Arundel makes
from its denial of certain paragraphs of Gemini’s
complaint and (ii) are overbroad, for the reasons discussed
above in connection with Interrog. No. 7.
Interrog. No. 16, Arundel has answered the interrogatory
notwithstanding its objections, and Gemini has failed to
articulate how its answer is defective.
Interrog. Nos. 19 and 20, I SUSTAIN Arundel’s objection
that they are overbroad, for the reasons discussed above in
connection with Interrog. No. 7.
Interrog. No. 21, I SUSTAIN Arundel’s objection that
Gemini expressly seeks Arundel’s legal theories, asking
that it explain every reason why it believes that coverage
exists for some or all of the damages awarded to Arundel.
acknowledge that Gemini offers to rephrase certain
interrogatories in such a manner as to overcome
Arundel’s objections and/or indicates that it would not
object were the court to do so. For two reasons, I decline
either to afford Gemini that opportunity or to exercise
discretion to “blue-pencil” its interrogatories.
as Arundel points out, this is an action in which Gemini
seeks a declaratory judgment that it has no duty to indemnify
its insured, Branch River Plastics, Inc. (“Branch
River”), for damages awarded to Arundel against Branch
River in a state court action on Arundel’s claims that
certain Branch River panels used in an Arundel construction
project breached the implied warranties of merchantability
and fitness for a particular purpose (the “Underlying
Suit”). See Complaint for Declaratory Judgment
(ECF No. 1) ¶¶ 6-26 & p. 11. The parties
already possess the evidence - the “facts” - on
which this action is based: materials from the Underlying
Suit, including the trial transcript and exhibits, and the
insurance policy at issue.
Arundel suggests, this tends to undermine Gemini’s
argument that it requires answers to its multiple contention
interrogatories. See, e.g., Kodak Graphic Commc’ns
Can. Co. v. E.I. du Pont de Nemours & Co., No.
08-CV-6553T, 2012 WL 413994, at *5 (W.D.N.Y. Feb. 8, 2012)
(“Where the requesting party already has all relevant,
non-privileged evidence, its demand that the opposing party
disclose its attorney’s selection and compilation of
certain documents is often a thinly-veiled effort to
ascertain how counsel intends to marshal the facts,
documents and testimony in his possession, and to discover
the inferences that counsel believes properly can be drawn
from the evidence it has accumulated.”) (citation and
internal punctuation ...