PROCEEDINGS: ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO COMPEL INTERROGATORY RESPONSES AND GRANTING, IN PART, PLAINTIFF’S MOTION TO COMPEL DOCUMENT REQUESTS
On January 28, 2009, plaintiff filed a notice of motion and motion to compel discovery, a joint stipulation, and the supporting declaration of Patrick F. Bright.
BACKGROUND
On May 12, 2008, plaintiff Superior Communications, a California corporation, filed a complаint against defendant Earhugger, Inc., a Utah corporation, for infringement of U.S. Patent 5,847,545 (“the patent”), alleging defendant violated the patent “by selling, and offering to [sell] ... battery chargers, e.g., the PowerPOD charger, that infringe the '545 patent.” Complaint ¶ 1. Plaintiff seeks declaratory and injunctive relief and actual damages, among other things. On August 20, 2008, defendant filed an answer and raised sevеral affirmative defenses, including equitable defenses and defenses that the patent is invalid and has not been infringed.
On January 20, 2009, plaintiff filed its Disclosures of Asserted Claims and Infringement Contentions alleging defendant’s “Pow-erPOD battery chargers (“the Accused Products”) infringe Claims 1-7 [of the patent], as shown in the attached claim charts.” Plaintiff further contends “[o]ne such [infringing] product, on information and bеlief, is the EH Power Pod Charger.”
I
Local Rule 37-2.2 provides, in part,
... After the opposing party’s papers are added to the stipulation by the moving party’s counsel, the stipulation shall be provided to opposing counsel, who shall sign it (electronically or otherwise) and return it to counsel for the moving party, no later than the end of the next business day, so that it can be filed with the notice of motion.
Local Rule 37-2.2.
Here, Mr. Bright states that on January 23, 2009, he “added to the motion the inserts
II
Under the federal rules, discovery is permitted in civil actions of “any nonprivileged matter that is relevant to any party’s claim or defense____” Fed.R.Civ.P. 26(b)(1); see Surfvivor Media, Inc. v. Survivor Prods.,
[з] The disрute before the Court focuses on ten interrogatories and 75 document requests plaintiff served on defendant. Rule 33 of the Federal Rules of Civil Procedure provides for the serving by a party upon any other party of written interrogatories that relate to any matters which can be inquired into under Rule 26(b). Fed.R.Civ.P. 33(a)(2). Rule 34 provides for the serving by a party upon any other party of written requests for the responding party “to produce and permit the requesting party ... to inspect ... [and] copy ... any designated documents or electronically stored information” that is “in the responding party’s possession, custody or control.” Fed.R.Civ.P. 34(a)(1)(A).
As an initial matter, defendant contends plaintiffs interrogatories do not comply with Rule 33(a) because they exceed 25 in number. Rule 33(a) provides that:
[и] nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories*218 may be granted to the extent consistent with Rule 26(b)(2).
Fed.R.Civ.P. 33(a). “Although the term ‘discrete subparts’ does not have a precise meaning, courts generally agree that ‘interrogatory subparts are to be counted as one interrogatory ... if they are logically or factually subsumed within and necessarily related to the primary question.’ ” Trevino v. ACB Am., Inc.,
Defendant claims: Interrogatory nos. 1, 2,
Stаte all of the facts that support or undermine the allegation in YOUR answer to the Complaint. Identify all PERSONS who have knowledge of these facts. Identify all DOCUMENTS and things that RELATE or refer to those facts.
Jt. Stip. at 5:27-6:2. Even if the Court were to overlook that this single interrogatory requires defendant, among other things, to set forth all facts regarding each of the affirmative defenses upon which defеndant relies, and the additional difficulty defendant would have in coherently responding to this request given that plaintiffs complaint does not identify which claims of the patent-in-suit defendant’s products allegedly infringe or which of defendant’s products allegedly infringe the patent-in-suit. Interrogatory no. 1 still has at least three discrete subparts: facts; persons; and documents. Safeco of Am.,
Since granting plaintiffs motion to compel respоnses to the interrogatories, even in part, would exceed 25 interrogatories, the Court will deny without prejudice plaintiffs motion to compel responses to Interrogatory nos. 1 and 3 through 10, and afford plaintiff the opportunity to prioritize its inquiries and
The plaintiff also seeks to compel documents responsive to Request nos. 1-75.
Defendant makes numerous boilerplate objections to the document requests, including that the requests: invade protected attorney-client privilege and work-product рrotection; are vague and unduly burdensome; are “premature” since defendant has not received discovery from plaintiff; and the “answer[s] may be as readily ascertained by [plaintiff] as by [defendant] by an inspection of documents .... ” Further, defendant offers to make available to plaintiff “all nonprivileged documents within the scope of [the] document requests], if аny, in Utah at a mutually agreeable location and time.”
As an initial matter, none of defendant’s objections to category (1) document requests (Request nos. 1-6, 11-15 and 38-39) are well-taken since these requests seek only documents supporting defendant’s answer and affirmative defenses, and such document requests complement Rule 33(a)(2), which allows a party to propound сontention interrogatories. Cf. Cable & Computer Technology, Inc. v. Lockheed Saunders, Inc.,
The same cannot be said, however, for the category (2), (3) and (4) document requests. With regard to category (2), since the Court has previously denied without prejudice plaintiffs motion to compel responses to plaintiffs interrogаtories, the Court also denies plaintiffs motion to compel documents responsive to Request nos. 7 and 16, which refer to defendant’s responses to the interrogatories. As for categories (3) and (4), although boilerplate objections are generally improper, and the Court disapproves of them, Paulsen v. Case Corp.,
Moreover, it is clear to the Court that some of the documents responsive to plaintiffs category (3) and (4) document requests may be protected by the attorney-client privilege or the work-produet doctrine. For example, Request no. 61 seeks “ALL DOCUMENTS RELATED TO communications between [defendant’s] counsel, and anyone other than [defendаnt], regarding this litigation.” Similarly, Request no. 66 seeks: “Ml DOCUMENTS that refer or RELATE TO the validity or invalidity of any of the claims of the patent-in-suit.” Clearly, a response to these requests may include documents protected by the attorney-client privilege or work-product protection or both. However, the Court does not know whether defendant has provided a privilege log to plaintiff. If not, dеfendant must provide plaintiff with a privilege log setting forth the documents defendant is withholding from production on attorney-client privilege and work product grounds.
Finally, it is not clear to the Court whether plaintiff is challenging defendant’s offer to make documents available for inspection in Utah and claiming defendant must copy and produce the responsive documents to plaintiff in California. Defendant’s portion of the joint stipulation discusses this issue extensively, but plaintiffs does not, other than eonclusorily asserting the offer is “illusory.” Rule 34 requires that document requests “must specify a reasonable time, place, and manner for the inspection and for performance of the related acts.” Fed. R.Civ.P. 34(b)(1)(B). Here, plaintiff has not provided the Court with а copy of its document requests, and the Court does not know whether plaintiff designated a different place for production of the requested documents than defendant offers, and neither party has provided the Court with any evidence regarding the respective burdens on the parties for document production. For the parties’ guidance, the Court notes “the gеneral rule [is] that business records should be examined at the place where they are kept, at least where the documents requested are large in number and their production poses some inconvenience.” Petruska v. Johns-Manville,
For all these reasons, plaintiff’s motion to compel documents responsive to document Request nos. 1-75 IS GRANTED, IN PART, AND DENIED, IN PART. Specifically, the Court GRANTS the motion to compel documents responsive to Request nos. 1-6, 8-15, 20-21, 24-39, 42-43, 45-52, 55-71 and 74-75, and DENIES plaintiffs motion as to Request nos. 7, 16-18, 22-23, 40-41, 44, 53-54 and 72-73.
ORDER
1. Defendant’s counsel IS ORDERED to Show Cause why he should not be sanctioned in the amount of $500.00 for having violated Local Rule 37-2.2. If defendant’s counsel objects, he shall file objections, no later than March 2, 2009, and the matter will then be set for hearing on March 12, 2009, at 9:00 a.m. in Courtroom 23.
2. Plaintiffs motion to compel further responses to Interrogatory nos. 1 and 3-10 IS DENIED WITHOUT PREJUDICE, and plаintiffs motion to compel a response to Interrogatory no. 2 IS DENIED with prejudice.
3. Plaintiffs motion to compel further responses to Request nos. 1-75 IS GRANTED, IN PART, AND DENIED, IN PART. Defendant shall produce to plaintiff all documents responsive to Request nos. 1-6, 8-15, 20-21, 24-39, 42-43, 45-52, 55-71 and 74-75, no later than twenty (20) days from the date of this Order. In the event documents responsive to these requests are privileged, defendant shall provide a privilege log to plaintiff that complies with the requirements of footnote 10, no later than thirty (30) days from the date of this Order. Plaintiffs motion to compel documents responsive to Re-
quest nos. 7, 16-18, 22-23, 40-41, 44, 53-54 and 72-73 IS DENIED.
Notes
. In his declaration, Mr. Bright “ask[s] this Court to award appropriate issue preclusion and monetary sanctions to Plaintiff, in addition to an order directing Defendant ... to producе the long-overdue discovery within 5 calendar days after the entry of such an order.” Declaration of Patrick F. Bright ("Bright Decl.”) ¶ 3. However, plaintiff's notice of motion does not state plaintiff seeks these sanctions, and the joint stipulation does not address these sanctions; thus, the Court does not consider these requests, which are improperly set forth solely in counsel’s declaration.
. At oral argument, Mr. Zenger stated he authorized Mr. Bright to sign the joint stipulation on his behalf since he was on vacation. However, Mr. Bright stated this is not true. Thus, Mr. Zenger should file a declaration under oath if he does not want to be sanctioned, as set forth in the Order.
. “[Fjederal courts have consistently held that documents are deemed to be within [a party's] 'possession, custody оr control’ for purposes of Rule 34 if the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co.,
. The Court finds Interrogatory no. 2 does not seek relevant information, as plaintiff candidly admits. Thus, plaintiff’s request to compel a response to Interrogatory no. 2 is denied.
. Plaintiff merely argues that it has not asked more than 25 interrogatories, and does not request the Court allow it to ask more than 25 interrogatories.
. The Court, thus, does not address defendant’s other objections, which would not afford plaintiff any greater relief than granted herein.
. Request no. 19 is not included in the joint stipulation.
. Request nos. 20 and 22 are identical and Requеst nos. 21 and 23 are identical.
. Request nos. 62-64 seek information about defendant’s experts and their evidence. Since Judge Anderson has not set a separate discovery period for expert discovery, the Court finds these document requests are not premature.
. Unfortunately, the joint stipulation is woefully lacking in pertinent information, such as whether defendant producеs or sells products other than the "Accused Products.”
. The Court finds Model Form 11 :A, set forth in The Rutter Group Practice Guide, Federal Civil Procedure Before Trial, correctly and adequately lists all the information that should be on the privilege log, including the title or position of the author and recipient of the document. See In re Grand Jury Investigation,