277 F.R.D. 642
D. Kan.2011Background
- Plaintiff Altina Pouncil, as Administrator of Willie Sue Clay Estate, sues Turner Branch and Branch Law Firm for legal malpractice, negligence, and fiduciary breach arising from the Estate's failed Vioxx claim.
- Estate's Vioxx claim against Merck ended due to a settlement eligibility bar; alleged misconduct occurred in handling that claim.
- Plaintiff served First Set of Interrogatories and First Requests for Production in 2010; Defendants responded in 2011.
- Plaintiff served a Second Set of Interrogatories Nos. 26-32 and Second Requests for Production Nos. 2-7 in May 2011; Defendants objected.
- Magistrate Judge Waxse granted the motion to compel, requiring full responses to Nos. 26-32 and production for Nos. 2-4 and 7 within 30 days.
- The court clarified how to count interrogatories under Rule 33(a), applying a common-theme standard to limit analysis and addressing specific objections to the second discovery set.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Second Set exceeds the interrogatory limit | Second Set within 40-limit after applying common-theme rule | First Set counted as more than 25; Second Set should be barred | Second Set does not exceed limit; responses required |
| Whether Interrogatories 26-28 are permissible given work-product and prematurity objections | Requests seek factual content, not protected mental impressions | Requests seek attorney mental impressions and are premature | Work product objections overruled; questions compelled; not premature |
| Whether Interrogatories 29-32 are relevant and cognizable despite mootness concerns | Information on staff and case management is probative of duty and negligence | Questions are irrelevant or moot after depositions | Interrogatories are relevant and not moot; must be answered |
| Whether Second Requests for Production Nos. 2-3 are proper and timely | Advertising records relevant to Vioxx-related intake and referrals | Requests are overbroad or untimely | Timely, narrowly tailored; production ordered for responsive advertising documents |
| Whether Second Request for Production No. 4 and No. 7 are proper | Fee-sharing documents and calendar records may reveal conflicts and involvement | Not reasonably connected; privilege/work product concerns | Request No. 4: relevant; production ordered; Request No. 7: calendars ordered; privilege/work product objections overruled |
Key Cases Cited
- Williams v. Bd. of Cnty. Comm'rs of the Unified Gov't of Wyandotte Cnty. & Kan. City, Kan., 192 F.R.D. 698 (D. Kan. 2000) (common theme approach to counting interrogatories under Rule 33(a))
- Upjohn Co. v. United States, 449 U.S. 383 (Supreme Court 1981) (attorney-client privilege; factors for protection)
- ERA Franchise Sys., Inc. v. N. Ins. Co. of New York, 183 F.R.D. 276 (D. Kan. 1998) (relevance and scope of discovery; ruling on discovery limits)
- Barzingus v. Wilheim, 306 F.3d 17 (10th Cir. 2010) (motion to compel discovery; interpretation of interrogatory limits)