United States District Court, D. New Mexico
ORDER DENYING PLAINTIFFS' MOTION TO COMPEL
DEFENDANT MCCALL'S RESPONSES TO WRITTEN
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiffs' Motion to
Compel Chief Christopher McCall's Responses to Written
Discovery (doc. 67) and the attendant briefing
(docs. 77, 93). Defendant McCall objected
in his Answers to all of Plaintiff's interrogatories and
requests for production on several grounds, including
relevancy and proportionality, constitutional zone of
privacy, existence of a collective bargaining agreement, and
numerosity. See generally docs. 72-5, 72-6.
Because the Court finds that the interrogatories directed to
Defendant McCall exceeded the total number allowed, it hereby
DENIES Plaintiffs' Motion to Compel and reserves ruling
on Defendant's other objections until Plaintiffs have
amended their interrogatories.
order of the Court,  each side in this case is limited to fifty
(50) interrogatories and fifty (50) requests for production
to serve or notice on the other side. Doc. 26 at 1.
Plaintiffs submitted thirteen numbered interrogatories to
Defendant McCall. See doc. 72-5. However, Defendant
McCall contends that Plaintiffs exceeded the interrogatory
limit in Interrogatory No. 8 by using subparts that
constitute discrete questions and should therefore count as
separate interrogatories. Doc. 77 at 15-16.
have recognized that, while interrogatory subparts are
permissible, “[e]xtensive use of subparts, whether
explicit or implicit, could defeat the purposes of the
numerical limit contained…in a scheduling order, by
rendering it meaningless unless each subpart counts as a
separate interrogatory.” Williams v. Board of
County Commissioners, 192 F.R.D. 698, 701 (D. Kans.
2000). Accordingly, parties “cannot evade
[interrogatory limitations] through the device of joining as
‘subparts' questions that seek information about
discrete separate subjects.” Soseeah v. Sentry
Ins., 2013 WL 11327129, at *6 (D.N.M. Nov. 4, 2013)
(quoting Fed.R.Civ.P. 33 Advisory Committee Notes (1993
which subparts of an interrogatory constitute discrete
questions is a “case-specific assessment” not
reducible to a “crisp verbal formula.”
Synopsys, Inc. v. Atoptech, Inc., 319 F.R.D. 293,
295 (N.D. Cal. 2016) (internal citation omitted). See
also Burget v. Capital W. Secs., Inc., 2010 WL 11508643,
at *2 (W.D. Okla. Mar. 30, 2010) (“The difficulty with
the numerical limitations of interrogatories lies with how to
count both the discrete and natural subparts to
interrogatories, ” which courts generally resolve
“on a case-by-case basis”). However, courts have
developed some general principles for counting
interrogatories. Subparts directed toward a “common
theme” should generally be counted as a single
interrogatory, while “subparts inquiring into discrete
areas” are generally counted as multiple
interrogatories. Williams, 192 F.R.D. at 701
(quoting Charles A. Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure § 2168.1, at 261
(2d ed. 1994)); see also Meadows v. Home Depot USA,
Inc., 2002 WL 31374956, at *2 (D. Kans. August 29, 2002)
(explaining that “subparts directed at eliciting
details concerning a ‘common theme' should
generally be considered a single question, ” while
“subparts that inquire into discrete areas should, in
most cases, be counted as more than one
interrogatory”). Parties may not evade discovery
limitations “through the device of joining as
‘subparts' questions that seek information about
discrete separate subjects.” Meadows, 2002 WL
31374956, at *2.
specifically, some courts have held that “[s]ubparts
count as one interrogatory…only if they are logically
or factually subsumed within and necessarily related to the
primary question.” EEOC v. New Mexico Corrections
Dep't, Civ. No. 15-879 KG/KK (D.N.M. Sept. 30, 2016)
(quoting Rodriguez v. Chavez, 2013 WL 1444183, at *1
(D. Colo. Apr. 9, 2013)). Put another way, subparts are
considered discrete “if the first question can be
answered fully and completely without answering the second
question.” Paananen v. Cellco P'ship, 2009
WL 3327227, at *2 (W.D. Wash. Oct. 8, 2009) (quoting
Estate of Manship v. U.S., 232 F.R.D. 552, 555 (M.D.
La. 2005)) (internal quotation marks omitted). Conversely,
subparts are considered discrete when the second question is
fully independent of the first:
Probably the best test of whether subsequent questions,
within a single interrogatory, are subsumed and related, is
to examine whether the first question is primary and
subsequent questions are secondary to the primary question.
Or, can the subsequent question stand alone? Is it
independent of the first question?
Kendall v. GES Exposition Servs., 174 F.R.D. 684,
685 (D. Nev. 1997).
explained below, the Court has counted Plaintiffs'
interrogatories under the guidance of these general
principles and concludes that Plaintiffs' interrogatories
to Defendant McCall alone exceed the Court-ordered limit of
fifty. Notably, however, Defendant asserts that Plaintiffs
have also submitted requests to other individual defendants.
See doc. 77 at 15 (“At the same time that
Plaintiffs propounded their requests to Chief McCall, they
sent requests to Defendant J.J. Murphy.”), doc.
45, doc. 46. It appears that, at least in the
case of Defendant J.J. Murphy, these requests included
interrogatories. See doc 46 (“Plaintiffs'
First Set of Interrogatories to Defendant City Manager J.J.
Murphy” sent on August 10, 2018). The
scheduling order in this case limits interrogatories to fifty
per side to serve or notice on the other
side. Doc. 26 at 1. Therefore, Plaintiffs'
interrogatories to any Defendant are counted and must not
Court's count, Interrogatory No. 1 contains three (3)
(a) is directed at evaluations “to improve the working
environment as it relates to minority communities.”
Doc. 72, Ex. 5 at 2. This is thematically distinct
from the other questions, which ask about racially derogatory
(b), (c), and (d) inquire about HPD's policies and
procedures regarding racially derogatory remarks and ask for
information about any discipline of HPD officers for
violation of such policies.
(e) and (f) ask Defendant McCall about his individual
conduct, including whether Defendant McCall has ever used
derogatory remarks/conduct (regardless of whether he was
disciplined for it-indeed, this question is not specifically
limited to the workplace). While related to the broader theme
of racially derogatory remarks, subparts (f) and more
particularly (e) diverge from the focus on HPD's policies
and procedures, and so constitute a discrete area of inquiry.
all questions within Interrogatory No. 2 are directed at a
common theme (HPD's affirmative action plan), it is
counted as a single interrogatory.
all questions within Interrogatory No. 3 are directed at a
common theme (a COMSTAT-like program requiring the presence
of reasonable suspicion and probable cause for every
detention), it is counted as a single interrogatory.