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Nye v. Viking Spirit, Inc.

United States District Court, D. Alaska

June 26, 2018

MATTHEW R. NYE, Plaintiff,
VIKING SPIRIT, INC., in personam; VIGILANT, LLC, in personam; F/V VIGILANT, O.N. 1251422, her engine, tackle, gear, apparel, furniture and equipment, in rem, Defendants.




         Before the Court at Docket 79 is Defendants' Motion to Compel Discovery Responses to Defendants' Fourth Set of Discovery.[1] Plaintiff opposed at Docket 88; Defendants replied at Docket 90.[2] Oral argument was not requested and was not necessary to the Court's decision.


         This is an admiralty case brought by Plaintiff Matthew Nye against Defendants Viking Spirit, Inc., Vigilant, LLC, and F/V Vigilant, O.N. 1251422. Mr. Nye seeks damages for personal injuries he sustained while he was a seaman aboard the F/V Vigilant. Mr. Nye receives ongoing maintenance and cure.[3]

         On July 17, 2017, the Court entered a Scheduling and Planning Order, which set discovery deadlines and limited the number of interrogatories to thirty, based on the agreement of the parties.[4] In July 2017, Defendants served their First Discovery Requests, which contained Interrogatory Nos. 1-20.[5] On September 25, 2017, Defendants served their Second Discovery Requests, which contained Interrogatory No. 21.[6] Interrogatory No. 21 states as follows:

Provide the following information for all out-of-country travel since the date of the injury alleged in your complaint: dates of all travel; cost and identity of all persons and entities providing accommodations (e.g., motel/hotel/hostel/friends); destinations (countries, cities, parks, recreational facilities; etc.); identity and contact information for all fellow-passengers (including persons travelling with you from the U.S. and persons with whom you travelled with/between foreign destinations); the names of all medical/therapy facilities and providers; dates of all foreign treatment/therapy and the purposes of said treatment (e.g., mind/body/spirit)[.][7]

         Mr. Nye objected on the basis that the interrogatory “is overbroad, unduly burdensome, seeks irrelevant information and is not reasonably calculated to lead to the discovery of nonprivileged admissible evidence. . . . [and] because it is vague and ambiguous.”[8] Mr. Nye nevertheless provided an answer. In March 2018, Defendants served their Third Discovery Requests, which included Interrogatory Nos. 22-24.[9] On April 1, 2018, Defendants served their Fourth Discovery Requests, which included Interrogatory Nos. 25-34.[10] Mr. Nye responded to Interrogatory No. 25 and objected to Interrogatory Nos. 26-34, stating as follows in response to each: “Plaintiff objects to this Interrogatory because Defendants have exceeded the thirty interrogatories permitted by the Court[']s Scheduling and Planning Order. Interrogatory no. 21 included at least six discrete subparts.”[11]

         Defendants now seek to compel Mr. Nye's response to Interrogatory Nos. 26-34, asserting that: (1) Mr. Nye “waived any objection to Defendants['] exceeding the thirty-interrogatory limit by selectively answering Defendants' fourth set of discovery”; and (2) “Defendants' Interrogatory No. 21 should be considered one interrogatory because it seeks information directly related to Plaintiff's out-of-country travel.”[12] Defendants also “request the Court compel responses to Defendants' additional interrogatories as a matter of efficiency and in consideration of the discovery cutoff.”[13]


         1. Waiver

         Defendants assert that “[i]f a party believes that the numerical limitation for interrogatories has been exceeded, it waives the objection if it selectively answers some of the interrogatories and objects on this ground to the rest.”[14] Defendants point out that, citing Allahverdi v. Regents of Univ. of New Mexico, a District of Alaska court stated that “[a] party who selectively responds to some interrogatories may be found to have waived its objection to the number of interrogatories.”[15] Mr. Nye responds that “the rule of Allahverdi does not apply where a party serves multiple sets of discovery requests.”[16]

         Here, Defendants served four sets of interrogatories. According to Mr. Nye's calculation-by which Interrogatory No. 21 constituted six distinct interrogatories-the first three discovery requests contained a total of twenty-nine separate interrogatories.[17] Thus, according to Mr. Nye, Defendants' Fourth Discovery Request represented the thirtieth through thirty-ninth interrogatories served on Mr. Nye in the case. Mr. Nye's decision to answer the first interrogatory-titled Interrogatory No. 25 but representing number 30 to Mr. Nye-and object to the remaining interrogatories comported with Alaska Local Rule (Civil) 33.1, which provides:

(a) Duty to Answer. In the event that a party is served with a number of interrogatories in excess of the number permitted under Federal Rule of Civil Procedure Rule 33(a)(1), the stipulation of the parties, or the order of the court, the receiving party must answer or otherwise interpose an objection, other than an objection that the number of interrogatories exceeds the maximum allowed, to the first number of interrogatories that do not exceed the maximum number allowed.
(b) Response to Excess Interrogatories. The party receiving the interrogatories may, as to each excess interrogatory at the option of the party receiving the interrogatories, either: (1) answer the interrogatory; or (2) object to the interrogatory by signifying “Objection. See Rule 33(a)(1).”[18]

         Furthermore, to require a party to respond sequentially only to the mandated number of interrogatories and object to the rest makes more sense than holding that a party who answers any interrogatories has waived its numerosity objection altogether-such a rule would “incentivize litigants to file protective orders in every case before responding to a single ...

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