Commercial Litigation and Arbitration

Samples of Overly Broad and Burdensome Interrogatories — Party May Not Refuse to Answer Interrogatories, Then Claim the Interrogatories Are Cumulative of Later Deposition — Examples of Meritorious Cumulativeness Objections

From SEC v. Berry, 2011 U.S. Dist. LEXIS 39907 (N.D. Cal. April 1, 2011):

[Sample Overly Broad and Burdensome Interrogatories.] The SEC correctly points out that none of the authority cited by Berry supports her claim that the interrogatories are, "by [their] nature," overbroad and unduly burdensome. Indeed, the cases cited by Berry are easily distinguished from the situation here. In JJCO, Inc. v. Isuzu Motors Am., Inc., CIV. NO. 08-00419 SOM/LEK, 2009 U.S. Dist. LEXIS 102121, at *12 (D. Haw. Oct. 30, 2009), the plaintiff sought "all correspondence between Isuzu and GM over a four-year period," all of which could not possibly relate to the plaintiff's claims. In Brown's Crew Car of Wyo. LLC v. State Transp. Auth., Case No.: 2:08-cv-00777-RLH-LRL, 2009 U.S. Dist. LEXIS 39469, at *14-15, 18-19 (D. Nev. May 1, 2009), the intervenor sought information that was "well beyond the scope and purpose of this action" and even appeared "calculated to needlessly increase the cost of litigation." And in In re Ebay Seller Antitrust Litig., No. C 07-1882 JF (RS), 2008 WL 5212170, at *2 (N.D. Cal. Dec. 11, 2008), the court determined that the defendant's contention interrogatories seeking "all facts" supporting the plaintiff's allegations were inappropriate at that time and so it denied the defendant's motion without prejudice after noting that there was no dispute that the plaintiff would have to respond fully to the interrogatories at some point.

In this case, though, the SEC's interrogatories request that Berry describe conversations she had with specific individuals about a specific topic that is directly relevant to this action. Moreover, Berry has been aware of these interrogatories for more than two years, so she cannot now claim that she has been caught off guard by them. Accordingly, the Court rejects Berry's "burdensome" argument.

B. Whether the Interrogatories Are Cumulative of Berry's Deposition Testimony

Berry next argues that answering the interrogatories would be cumulative of her deposition testimony. She cites her deposition testimony where the SEC asked whether, for instance, she had ever had discussions about stock options with the individuals mentioned in the interrogatories. *** "These questions and testimony," she contends, "demonstrates that the SEC is simply seeking what it already has." Id. at 7.

The SEC initially argues that Berry waived any "cumulative" objection since she did not include it in either her original or amended interrogatory responses and only mentions it now. Docket No. 195 ("Reply") at 4 (citing Fed. R. Civ. P. 33(b)(4) ("Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.")).... The SEC's argument is well-taken.

Even if the Court excuses this failure, though, the SEC argues that defendant cannot be allowed to refuse to answer interrogatories, then attend a deposition, and then claim that the deposition testimony should suffice as a response to the interrogatories. ... Indeed, none of the cases cited by Berry support such a tactic. Instead, the cases she cites merely support the unremarkable proposition that Rule 26 is designed in part to limit discovery that is unreasonably cumulative or duplicative or that could be obtained from some other source that is more convenient, less burdensome, or less expensive. See Fed. R. Civ. P. 26(b)(2)(C); see also Sloan v. Oakland Police Dep't., No. C-00-4117 CW (JCS), 2006 U.S. Dist. LEXIS 25100, at *15 n.2 (N.D. Cal. Mar. 23, 2006) (noting, among other things, that should defendants bring a motion to compel responses to interrogatories served before plaintiff's deposition, such a motion will only be granted if the additional interrogatory responses sought are not duplicative of information already obtained, through deposition or otherwise); Pulsecard, Inc. v. Discover Card Services, Inc., Civ. A. No. 94-2304-EEO, 168 F.R.D. 295, 306 (D. Kan. 1996) ("That litigants may engage in successive forms of discovery 'is not a license to engage in repetitious, redundant and tautological inquiries.'") (quoting Richlin v. Sigma Design West, Ltd., 88 F.R.D. 634, 640 (E.D. Cal. 1980)) (internal quotation marks omitted); Penk v. Oregon State Bd. of Higher Education, 1983 U.S. Dist. LEXIS 10463, at *1-2 (D. Or. Dec. 23, 1983) (defendant had taken extensive depositions of most of plaintiffs' experts and also had the reports the experts prepared for use at trial, so defendant had had "complete access to the requested information through the other discovery devices it has chosen to use").

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