Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MARY E. ALLEN, et al.,

Plaintiffs,

v. 3:10cv142/MCR/CJK

SCHOOL BOARD FOR SANTA

ROSA COUNTY, FLORIDA, et al.,

Defendants.

________________________________________________________________ 

 

ORDER ON PENDING DISCOVERY ISSUES 

Before the Court is Defendants’ Emergency Motion to Compel Discovery 

Responses and Motion for Sanctions. (Doc. 162). Plaintiffs have filed their

Memorandum in Opposition to Defendants’ Motion to Compel Discovery. (Doc.

172). I have also considered, in reaching this ruling, Plaintiffs’ Emergency Motion

for Reconsideration of Discovery Order. (Doc. 169). The matter was heard before

me in a telephone hearing on May 12, 2011, at 10:00 A.M.

When the three defendants, whom I will collectively refer to in this order as

School Board, filed their Motion to Compel Discovery, I entered an interim order

(doc. 165), primarily addressing the issues created by the School Board’s failure to

attach two exhibitsto its combined discovery requests. Allen v. School Bd. for Santa

Rosa County, Fla., No. 3:10cv142/MCR/CJK, 2011 WL 1661600 (N.D. Fla. May 2,

2011). I required the School Board, under an expedited time schedule, to correct this

oversight and further required the 23 plaintiffs to immediately respond to those

Case 3:10-cv-00142-MCR-CJK Document 179 Filed 05/12/11 Page 1 of 7
Page 2 of 7

requests that had been left unanswered because of the lack of attached exhibits. I am

advised that the matters concerning the attached exhibits have now been resolved by

the parties and will not require further ruling by the court. I am further advised that

the School Board’s motion insofar as it concerns plaintiffs’ failure to use a verified

oath with notarization on the interrogatories has also been resolved based upon the

plaintiffs’ reliance (justifiable in my view) on 28 U.S.C. §1746. I have advised the

parties, that, but for the resolution of this matter, I would have ruled in favor of the

plaintiffs and found that the form of declaration they have used is acceptable. This

leavesfor resolution three issues. First are the interrogatories requesting information

on the Santa Rosa School District schools attended by the four student plaintiffs. 

Next isthe response ofstudent plaintiff Riley to interrogatory 2(d)(1). The final issue

concerns the number of interrogatories the School Board defendants should be

allowed to propound.

School Board Interrogatory–Schools Attended

By interrogatory 2(a) to each student plaintiff, the School Board asked these

plaintiffs to “identify each and every Santa Rosa school district school you attended,

including but not limited to, the name of each school, the date of attendance for each

school, the highest grade completed at each school, your current grade in school.” 

(Doc. 162 at 6). The School Board filed a Motion to Compel as to the objection

raised by the current and former student plaintiffs, representing to the court that these

plaintiffs responded, “objection; overly broad, unduly burdensome, lack of

relevance.” (Doc. 162 at 6). Plaintiffs, in their Memorandum in Opposition, have

admitted that they responded to the interrogatorywith the previouslyquoted sentence.

Plaintiffs, however, also informed the court that they went on, in the same responses,

Case No: 3:10cv142/MCR/CJK

Case 3:10-cv-00142-MCR-CJK Document 179 Filed 05/12/11 Page 2 of 7
Page 3 of 7

to provide the following, “without waiving any objection: I attended the following

schools in Santa Rosa County: Berryhill Elementary (kindergarten - fifth grade);

Hobbs Middle School (sixth - eighth grade); and Milton High School (ninth - twelfth

grade). I graduated from high school in 2010.” This quoted language actually came

from student plaintiff Riley’s interrogatory answers, and the plaintiffs represent that

each of the other four student plaintiffs provided substantially similar responses

reflecting their own educational histories in Santa Rosa County. (Doc. 172 at 10). 

I find that the defendant School Board’s Motion with regard to these

interrogatories is unjustified. Moreover, the School Board, whether out of intent or

oversight, failed to notify the court of the true substance of the answers to

interrogatory 2(a). Plaintiffs have explained that their objection was concerning the 

“including but not limited to” verbage included in the interrogatories. I am unable

to determine why the School Board included this verbage in the interrogatories, but

I need not consider this, because, as it stands now, in my view, no justiciable

objection remains. The only question is whether the answers provided to

interrogatory 2(a) are sufficient. They are. The defendant’s Motion will be denied

as to interrogatory 2(a).

School Board Interrogatory–Identify Prohibitory Directive

The next issue involvesstudent plaintiffRiley’s answer to interrogatory2(d)(1)

requesting him to “identify with particularity the date the directive prohibiting you

from including the phrase ‘God Bless’ in your letter to the student body was issued,

the name of the relevant district personnel who issued it, the content of the directive,

the context in which it arose, and any names and contact information to any witnesses

to its issuance.” (Doc. 162 at 8). Rather than responding to this interrogatory,

Case No: 3:10cv142/MCR/CJK

Case 3:10-cv-00142-MCR-CJK Document 179 Filed 05/12/11 Page 3 of 7
Page 4 of 7

plaintiff Riley referred to certain paragraphs of the Complaint and one two-page

exhibit appended to the Complaint. As plaintiffs point out, Mr. Riley has now been

deposed, and was asked a number of questions concerning the subject matter. 

Plaintiffs therefore conclude that Mr. Riley should not be required to further respond

to the interrogatory. The School Board proffers that a response in the form of an

interrogatory answer should be required.

Under Federal Rule of Civil Procedure 33(b)(3), each interrogatory “must, to

the extent it is not objected to, be answered separately and fully in writing under

oath.” The School Board defendants express their desire to have an interrogatory

answer for further use in these proceedings, rather than being limited to relying upon

the deposition answers given by Mr. Riley, which, of course, are not before me. On

balance, this argument goes to the School Board. Good tactical reasons exist why a

party would want to have a straight-forward interrogatory answer for use at further

proceedings, including summary judgment and cross-examination at trial. I therefore

find that Mr. Riley has not fully answered the subject interrogatory and should be

required to do so within seven (7) days.

School Board Interrogatories–Number Allowed

The final issue for resolution involves application of Rule 33(a)(1) of the

Federal Rules of Civil Procedure. This Rule provides, in relevant part: “[u]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.” School Board

defendants now move this court to compel answers to interrogatories that exceed the

rule limitation. The sole argument raised by the School Board in the motion to

compel is that each defendant is entitled to propound 25 interrogatories for a total of

Case No: 3:10cv142/MCR/CJK

Case 3:10-cv-00142-MCR-CJK Document 179 Filed 05/12/11 Page 4 of 7
Page 5 of 7

75. At the hearing on this matter, counsel for the School Board candidly admitted

that this wasthe School Board’s position. This position would, considering that there

are 23 individual plaintiffs in this matter, result in license for the School Board to

propound 1,725 interrogatories.

Although counsel for the School Board argued at the hearing that there are

other reasons to allow an excessive number of interrogatories, besides the School

Board’s interpretation of the Rule, such argument was never made in the motion

before me, and I will not consider the argument at this time. In the motion actually

filed by the School Board, these defendants relied upon a mechanistically literal

reading of the Rule, arguing that because plaintiffs brought the action against three

separate entities, these entities should each be allowed to propound a full set of

interrogatories to each plaintiff. The School Board relies upon St. Paul Fire and

Marine Insurance Company v. Birch, Stewart, Kolasch &Birch, LLP, 217 F.R.D. 288

(D. Ma. 2003). In St. Paul, the court read the interrogatory limit to apply to

individual parties on each side of the dispute, and not to each side in the aggregate. 

Id. at 289. Plaintiffs respond that the School Board defendants have consistently

litigated this case as a single unit, “united in a single, common and unitary purpose 

. . . .” (Doc. 172 at 14). The School Board defendants have consistently filed their

motions, notices, and discovery matters as one unit. I take the plaintiffs’ argument

to suggest that the School Board defendants may not, at thisstage of the conflict, now

decamp into three regiments, in order to gain some advantage in the skirmish lawyers

call discovery. Also, as noted by the plaintiffs, even as late as the May 12, 2011

hearing, the School Board defendants have not moved the court for leave to exceed

the 25 interrogatory limitation.

In McCarthy v. Paine Webber Group, Inc., multiple defendants were

represented by the same law firm and throughout that litigation had jointly filed and

Case No: 3:10cv142/MCR/CJK

Case 3:10-cv-00142-MCR-CJK Document 179 Filed 05/12/11 Page 5 of 7
Page 6 of 7

responded to motions. See 168 F. R. D. 448 ( D. Conn. 1996). After the court denied

a joint motion by all three defendants to increase the Rule 33(a) interrogatory limit,

one of the three defendants filed its own set of interrogatories. See id. at 449. 

Plaintiffs objected and relied upon the numerical limitation in the Rule, among other

issues. The Paine Webber defendants argued they were not bound by the 25

interrogatory limitation because there were, in fact, three defendants. The court saw

the situation otherwise: 

[D]efendant’s argument is disingenuous. Rule 33 of the Federal Rules

of Civil Procedure provides that ‘each party’ may submit up to twentyfive interrogatories ‘including all discrete subparts’ without leave of

court. However, in this case, all defendants have been represented by

the same law firm since May 1993, and have jointly filed and responded

to all motions since that time. In fact, all defendants brought the

previously mentioned motion to compel answers to the same type of

interrogatories that are at issue here. The motion was denied.

Id. at 450.

Also, in Zito v. Leasecomm Corp., a large group of defendants jointly served

a single set of interrogatories totaling 169 separate questions in all. See 233 F. R. D.

395 (S.D.N.Y. 2006). The District Court, in denying the Defendants’ Motion to

Compel Interrogatory Answers, questioned the conclusion reached by St. Paul Fire

and Marine Insurance Company, noting that in the Zito case, applying the St. Paul

reasoning, the plaintiffs would be entitled to propound 5,000 interrogatories. See id.

at 399. I also am not persuaded by the St. Paul Fire reasoning, which here would

lead to a ruling that the School Board defendants could propound over 1,700

interrogatories. This is an important case, but the scope of this litigation is not so

lacking in circumscription asto suggest this breadth of discovery, and I will not allow

it. The School Board’s Motion to Compel, asking the court to overrule the plaintiffs’

objection concerning the number of interrogatories, will be denied.

Case No: 3:10cv142/MCR/CJK

Case 3:10-cv-00142-MCR-CJK Document 179 Filed 05/12/11 Page 6 of 7
Page 7 of 7

Accordingly, it is ORDERED and ADJUDGED:

1. The Defendants’ Motion to Compel (doc. 162) with regard to the

question of declaration versus notarization of interrogatories is DENIED by

agreement of the parties.

2. The Defendants’ Motion to Compel concerning answer to interrogatory

2(a) is DENIED, as I find that the student plaintiffs have fully answered the

questions.

3. Interrogatory 2(d)(1) propounded to student plaintiff Riley, concerning

the use of “God Bless” in a letter to the student body, will be answered by Mr. Riley

within seven (7) days, and accordingly this portion of the Motion to Compel is

GRANTED.

4. The defendants’ apparent attempt to exceed the 25 interrogatory limit of

Federal Rule of Civil Procedure 33(a)(1) is DENIED, as more completely explained

above.

5. No sanctions or attorneys’ fees will be allowed at this time.

6. As I have previously explained in the order setting today’s hearing, any

further discovery disputes will be heard by me on an expedited basis, and I will

absolutely require counsel for all parties to be present in person at the United States

Courthouse in Pensacola on 24 hours notice to explain their positions in such

proceedings, which are, for the present time, purely hypothetical.

At Pensacola, Florida this 12 day of May, 2011.

nd

/s/Charles J. Kahn, Jr.

Charles J. Kahn, Jr.

United States Magistrate Judge

Case No: 3:10cv142/MCR/CJK

Case 3:10-cv-00142-MCR-CJK Document 179 Filed 05/12/11 Page 7 of 7