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March 30, 2020 Practice Points

Discovery Limits: The Tension and Interplay Between Local Rules and the Rules of Civil Procedure

Familiarity with the local rules can assist counsel on either side of a dispute in thwarting unnecessarily aggressive written discovery.

By Michael Stefanilo Jr.

It is imperative that attorneys practicing in federal court familiarize themselves with the local rules applicable to their respective districts. Without awareness of local rule clarifications and supplementations to the Federal Rules of Civil Procedure, it is challenging to navigate almost all facets of federal practice, as each district court has its own particular way of enforcing, shaping, and interpreting various strictures and allowances of the rules. This is particularly true of discovery practice.

For example, the local rules for the District of Massachusetts impose discovery limits on practitioners that differ slightly from the language of the federal rules. District of Massachusetts Local Rule 26.1(C) states “[u]nless the judicial officer orders otherwise, the number of discovery events shall be limited for each side (or group of parties with a common interest) to ten (10) depositions, twenty-five (25) interrogatories, twenty-five (25) requests for admissions, and two (2) separate sets of requests for production.” Id. (emphasis added). Federal Rule 33 limits interrogatories to twenty-five per party rather than per side. Unlike the Local Rule, Federal Rule 33 also neglects to provide a condition to account for a “group of parties with a common interest.” Id. While this local rule modification might be considered reasonable by some—and perhaps even necessary—a party bringing suit against multiple other parties, or being sued by a group of plaintiffs, might argue that the local rules are inconsistent with the federal rules in placing limitations on discovery events (in this case the number of interrogatories) and that the federal rules should supersede, thus permitting more interrogatories to be served.

There is a dearth of case law on this issue. In St. Paul Fire and Marine Ins. Co. v. Birch, Steward, Kolasch & Birch, 217 F.R.D. 288 (D. Mass. Sept. 28, 2003), Magistrate Judge Collings stopped short of holding that Rule 26.1(C) was outright unenforceable; however, it was his interpretation that any limit on the number of interrogatories that could be served by a party, which differed from Fed. R. Civ. P. 33, required a court order, due to the broader language contained in Rules 33 and 26, when compared to that contained in Local Rule 26.1.

Excessive interrogatory use is a real issue in practice. In a discrimination case, for example, if a plaintiff brings suit against a corporation—as well as the corporation’s CEO; general manager; local level manager; supervisor; and human resources director, in addition to the alleged harasser—arising out of purported discrimination and harassment that resulted in reports up the chain of command and, then, subsequent retaliatory conduct, Rule 33 would, in theory, permit the plaintiff to serve the defendants with 150 interrogatories. This is, by any account, excessive, but permissible under the rules. If this case were filed in the District of Massachusetts, the local rules would arguably cap the number of interrogatories available to the plaintiff to 25 directed to the corporate defendants as parties in interest (often represented by the same counsel of record), in addition to potentially 25 directed to the alleged harasser (often, but not always, represented separately). In most cases, each of these individuals would be deposed, rendering the necessity for 150 interrogatories immoderate in the first place, but the local rules serve to temper the overuse of disproportional written discovery in instances such as this.

Other federal district courts have disagreed with the decision in St. Paul, refusing to strictly adhere to the language of Rule 33 when considering local clarifications or requests for relief by an overburdened party. Of note, in Allen v. Sch. Bd. for Santa Rosa Cty.., No. 3:10CV142/MCR/CJK, 2011 WL 1831764, at *3 (N.D. Fla. May 12, 2011), the court disagreed with the broad interpretation made by Judge Collings in St. Paul. The court in Allen was faced with a group of defendants attempting to use Rule 33 to serve the plaintiff with excessive written discovery. The court stepped in, holding that, where the defendants consistently litigated the case as a single unit, united in a single, common, and unitary purpose, and where the defendants consistently filed their motions, notices, and discovery matters as one unit, they could not rely on the fact that they are technically separate parties under Rules 26 and 33 in order to serve 25 interrogatories each on the opposing side. Other courts have ruled similarly to the court in Allen. See Zito v Leasecomm Corp., 233 FRD 395, 399 (S.D.N.Y 2006) (holding that, including subparts, issuing 169 interrogatories was abusive where potential witnesses were already known and the parties to whom the interrogatories were directed were in the process of producing relevant documents. The court found that the interrogatories would provide little additional benefit, but would be extremely expensive and time-consuming); Vinton v Adam Aircraft Industries, Inc., 232 FRD 650, 664 (D. Colo. 2005). In Vinton, the court cited Wright, Miller, and Marcus, 8A Federal Practice and Procedure § 2168 at 261, and reasoned that parties that are merely separated nominally should be considered a single party for the purposes of the 25-interrogatory limitations in Rule 33. The court also required the plaintiff to justify how the presence of multiple parties warranted an increase in the number of interrogatories needed.

While Federal Rules 26(c)(1) and 37 provide relief to a party from oppressive discovery tactics, F.R.C.P. 26 does not expressly speak to discovery limits such as the one prescribed by Rule 33. One important function of local rules is to mitigate disproportionate discovery to protect the parties and the court from an excessive and unnecessarily expensive stratagem. Familiarity with the local rules can assist counsel on either side of a dispute in thwarting unnecessarily aggressive written discovery that is often served for no other purpose than to harass, annoy, or oppress, or is served without thought at all but, rather, to simply to go through the motions.

Michael Stefanilo Jr. is a partner practicing in employment and civil rights law at the Boston, Massachusetts-based civil litigation firm of Brody, Hardoon, Perkins & Kesten, LLP. 

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