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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JOHN M. DIBBS,

 Plaintiff,

 v.

THE FRANKLIN MINT, et al., 

 Defendants.

CASE NO. C06-604RSM

ORDER GRANTING IN PART

DEFENDANTS’ MOTION TO

COMPEL

This matter comes before the Court on defendants’ Motion to Compel Answers to

Interrogatories and Production of Documents. (Dkt. #25). Defendants argue that plaintiff has

failed to produce documents responsive to defendants’ requests for production despite the

fact that plaintiff had agreed to produce such documents at a mutually agreeable time. 

Additionally, defendants argue that plaintiff has responded to several of defendants’

interrogatories by invoking Fed. R. Civ. P. 33(d), but have not complied with the

requirements of this rule. Plaintiff did not file a timely response.

Having reviewed defendants’ motion, the declaration and exhibits attached thereto,

and the remainder of the record, the Court hereby finds and ORDERS:

(1) Defendants’ Motion to Compel Answers to Interrogatories and Production of

Documents (Dkt. #25) is GRANTED IN PART. As an initial matter, the Court addresses

plaintiff’s untimely response. Pursuant to Local Rule CR 7(d)(3), “[a]ny opposition papers

shall be filed and served not later than the Monday before the noting date.” Here, defendants

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ORDER

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correctly noted their motion to compel for Friday, November 23, 2007, thereby requiring

plaintiff to respond by Monday, November 19, 2007. However, plaintiff’s response was filed

on November 20, 2007, one day after the required deadline as contemplated by this Court’s

rules. Plaintiff nevertheless does not suffer prejudice from his dilatory conduct for the

following two reasons. 

First, defendants have indicated to the Court that the issue regarding its requests for

production of documents has been resolved. On December 3, 2007, defendants filed a notice

to the Court regarding its motion to compel. (Dkt. #38). In this pleading, defendants

indicated that “[o]n November 26 and 28, 2007, plaintiff produced 329 pages of documents to

defendants. It appears that these are the documents that plaintiff agreed to produce in his

responses to several of defendants’ requests for production, and that were one of the subjects

of the Motion to Compel.” Id. at 1. Accordingly, this portion of defendants’ motion is

STRICKEN AS MOOT. 

Second, the Court finds merit in defendants’ arguments with respect to Fed. R. Civ. P.

33(d). Fed. R. Civ. P. 33(d) provides:

If the answer to an interrogatory may be determined by examining, auditing,

compiling, abstracting, or summarizing a party’s business records (including

electronically stored information), and if the burden of deriving or ascertaining the

answer will be substantially the same for either party, the responding party may

answer by: (1) specifying the records that must be reviewed, in sufficient detail to

enable the interrogating party to locate and identify them as readily as the

responding party could; and (2) giving the interrogating party a reasonable

opportunity to examine and audit the records and to make copies, compilations,

abstracts, or summaries. 

Id. (emphasis added).

The primary purpose of Fed. R. Civ. P 33(d) is to “shift the time and cost burden, of

perusing documents in order to supply answers to discovery requests, from the producing

party to the party seeking the information.” SEC v. Elfindepan, 206 F.R.D. 574, 576

(M.D.N.C. 2002) (citing Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 225-26 (10th

Cir. 1976)). A party claiming that the opposing party inappropriately used Fed. R. Civ. P.

33(d) must make a prima facie showing that the use of this rule is somehow inadequate, either

because the information is not fully contained in the documents or because it is too difficult to

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ORDER

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extract. See 7-33 Moore’s Federal Practice - Civil ¶ 33.105. The burden then shifts to the

producing party to justify the use of Fed. R. Civ. P. 33(d) instead of direct answers to

interrogatories. Id. The producing party may satisfy this burden by first showing that a

review of documents will actually reveal answers to the interrogatories, and then justifying

why the burden should shift from the responding party to the requesting party. Id.

Here, plaintiff has responded to defendants’ Interrogatories Nos. 1, 3, 4, 5, and 6 by

invoking Fed. R. Civ. P. 33(d). (Dkt. #26, Decl. of Stuart R. Dunwoody, Exh. A, pp. 7-15). 

Specifically, plaintiff responds to each of these interrogatories by stating:

Without waving his objections, pursuant to [Fed. R. Civ. P.] 33(d), in lieu of

responding to this interrogatory, Plaintiff makes available the documents produced

with its response to Defendants’ Request for Production of Documents, as the answer

may be derived from the business records of Plaintiff to the extent such records exist

and are properly discoverable.

Id.

Plaintiff does not, however, specify which records must be reviewed in sufficient detail

to enable defendants to locate and identify such records as required by Fed. R. Civ. P. 33(d). 

Nor does plaintiff offer any justification for why the burden should be shifted from him to

defendants other than the conclusory statement mentioned above. Consequently, the Court

GRANTS defendants’ motion with respect to the portion of defendants’ motion to compel

that requests plaintiff to comply with Fed. R. Civ. P. 33(d). Further, the Court ORDERS

plaintiff to properly respond to defendants’ Interrogatories Nos. 1, 3, 4, 5, and 6 no later than

twenty-one (21) days from the date of this Order.

(2) The Clerk is directed to forward a copy of this Order to all counsel of record .

DATED this 10 day of December, 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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