UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Hypertherm, Inc.

v. Civil No. 05-cv-373-JD

Opinion No. 2008 DNH 215

American Torch Tip Company

O R D E R

Hypertherm, Inc. brought patent infringement claims against

American Torch Tip Company (“ATTC”). ATTC filed a counterclaim,

alleging that Hypertherm engaged in unfair and anticompetitive

practices. Hypertherm propounded interrogatories to ATTC asking,

in part, for the factual and legal bases of the counts alleged in

ATTC’s counterclaim. ATTC provided responses but also objected

to the interrogatories.

ATTC moves for a protective order that would delay its

obligation to respond to the interrogatories until after the

close of discovery. Hypertherm objects. Hypertherm moves to

compel ATTC to provide further responses to five of the ten

interrogatories. ATTC objects to the motion to compel.

Discussion

Because ATTC’s motion for a protective order and

Hypertherm’s motion to compel pertain to the same

Case 1:05-cv-00373-JD Document 395 Filed 12/29/08 Page 1 of 14
1The parties were allowed discovery limited to the issues

raised in the motion.

2It appears, however, that the parties failed to file the

revised discovery plan within forty-eight hours of the order

granting the motion to amend, and instead the original proposed

discovery plan was approved on May 28, 2008.

2

interrogatories, the motions are considered in the same order

although the issues are addressed separately. 

General discovery on ATTC’s counterclaim was stayed while

Hypertherm’s motion to dismiss or for summary judgment on counts

in ATTC’s counterclaim was pending.1 The order granting the

motion in part and denying it in part issued on September 11,

2007. On April 15, 2008, the court ordered the parties to file

a discovery plan for the counterclaim, which was filed and then

amended on May 5, 2008, and the motion to amend was granted on

May 6, 2008.2 The parties moved to extend the discovery

deadlines which was granted on October 14, 2008. 

Hypertherm propounded its first set of interrogatories,

numbered one to ten, on June 20, 2008. The interrogatories

sought information about the counts in ATTC’s counterclaim. In

several of the interrogatories, Hypertherm asked ATTC to describe

the circumstances, identify all documents, or provide “each and

every instance” of actions pertaining to the counts in the

counterclaim.

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3ATTC has now filed a second motion for a protective order

pertaining to a different discovery dispute between the parties.

3

 ATTC provided responses on July 28, 2008, objecting to the

interrogatories on grounds including that they were overly broad,

consisted of compound questions that raised the total beyond

twenty-five, and, as contention interrogatories, need not be

answered until after the close of discovery. After counsel

conferred about the interrogatory dispute, Hypertherm provided

revised interrogatories on September 5. ATTC provided

supplemental responses two weeks later, in which it continued to

object on a variety of grounds but also cited documents by Bates

numbers under Federal Rule of Civil Procedure 33(d). ATTC filed

a motion for a protective order, addressing Hypertherm’s

interrogatories as amended.3 On October 24, Hypertherm moved to

compel ATTC to provide additional answers to its interrogatories

numbered 3, 4, 5, 6, and 9, or to limit ATTC to proof of the

counts in its counterclaim as provided in the answers to date.

I. Hypertherm’s Motion to Compel

Hypertherm seeks an order compelling ATTC to provide answers

to interrogatories numbered 3, 4, 5, 6, and 9, which ask ATTC to

provide information about ATTC’s counterclaim. In particular,

Hypertherm contends that ATTC’s responses, under Federal Rule of

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Civil Procedure 33(d), were incomplete. ATTC objects to the

interrogatories, asserting that, among other things, they are

overly broad and unduly burdensome. Hypertherm responds that

complete answers to the interrogatories are necessary to provide

it with meaningful information about the grounds for the counts

in ATTC’s counterclaim.

A. Contention Interrogatories

ATTC characterizes Hypertherm’s interrogatories as

“contention interrogatories.” “‘Contention interrogatories seek

to discover the factual basis for the allegations raised in the

complaint, answer or counterclaim. The purpose of contention

interrogatories is also to determine the theory of a party’s

case.’” Exxon Res. & Eng’g Co. v. United States, 44 Fed. Cl.

597, 601 (Fed. Cl. 1999) (quoting Iain D. Johnston & Robert G.

Johnston, Contention Interrogatories in Federal Court, 148 F.R.D.

441, 442 (1993)); see also Ryan v. Mary Immaculate Queen Ctr.,

188 F.3d 857, 860 (7th Cir. 1999) (contention interrogatory

allows determination of whether party has any tenable basis for

claim); Med. Educ. Dev. Servs., Inc. v. Reed Elsevier Group, PLC,

2008 WL 4449412, at *11 n.16 (S.D.N.Y. Sept. 30, 2008). 

Contention interrogatories ask a party to state its contentions,

to provide the factual basis for a claim, or to explain how the

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law applies to the factual basis. Shqeirat v. U.S. Airways

Group, Inc., 2008 WL 4232018, at *4 (D. Minn. Sept. 9, 2008). 

“The general view is that contention interrogatories are a

perfectly permissible form of discovery, to which a response

ordinarily would be required.” Starcher v. Corr. Med. Sys.,

Inc., 144 F.3d 418, 421 n.2 (6th Cir. 1998). “An interrogatory

is not objectionable merely because it asks for an opinion or

contention that relates to fact or the application of law to

fact, but the court may order that the interrogatory need not be

answered until designated discovery is complete, or until a

pretrial conference or some other time.” Fed. R. Civ. P.

33(a)(2). On the other hand, contention interrogatories that ask

for “each and every” or all documents, facts, activities, and

actions that support a claim may be overly broad and unduly

burdensome. See Lucero v. Valdez, 240 F.R.D. 591, 594 (D.N.M.

2007); Moses v. Halstead, 236 F.R.D. 667, 674 (D. Kan. 2006); see

also, e.g., Shqeirat, 2008 WL 423018, at *4; Jadwin v. County of

Kern, 2008 WL 3820288, at *2 (E.D. Cal. Aug. 8, 2008); Heartland

Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL

2192860, at *2 (D. Kan. July 25, 2007).

In its motion to compel, Hypertherm summarizes its

interrogatories as asking for the “factual basis” of particular

allegations in ATTC’s counterclaim. Although the actual wording

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4Indeed, at this stage of the litigation, ATTC must have a

“factual basis” for each of the counts alleged in its

counterclaim. See Fed. R. Civ. P. 11(b)(3).

6

of the interrogatories is more specific and inclusive, as

summarized, the interrogatories do not venture beyond the

permissible scope of contention interrogatories.4 Therefore, the

disputed interrogatories, numbered 3, 4, 5, 6, and 9, are

construed to ask ATTC to provide the “factual basis” for its

allegations in support of the referenced allegations or counts in

ATTC’s counterclaim. The factual basis for ATTC’s counts and

allegations in the counterclaim means the primary evidentiary

basis for asserting those matters either in narrative form or

with specific reference to particular business records that

provide supporting evidence for the allegations and claims made.

B. Use of Rule 33(d)

Hypertherm contends that ATTC’s reliance on Rule 33(d) to

answer the interrogatories by a general reference to thousands of

documents produced in discovery is tantamount to not answering at

all. In addition, Hypertherm asserts that ATTC has not shown

that Rule 33(d) applies in the circumstances of the current

discovery and asks that ATTC be compelled to provide narrative

answers with specific references to the documents it has

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referenced. In response, ATTC contends that the information

Hypertherm seeks cannot be supplied in the limited time

available.

Rule 33(d) provides an option for a party to answer

interrogatories “[i]f 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 . . . .” Under Rule 33(d), the answering party must

specify the records to be reviewed “in sufficient detail to

enable the interrogating party to locate and identify them as

readily as the responding party could” and must also give “the

interrogating party a reasonable opportunity to examine and audit

the records and to make copies, compilations, abstracts, or

summaries.” Fed. R. Civ. P. 33(d)(1) & (2). Importantly, Rule

33(d) is not a means for a party to avoid answering

interrogatories by making only a general reference to a mass of

documents or records. Calkins v. Pacel Corp., 2008 WL 2311565,

*4 (W.D. Va. June 4, 2008). In addition, the rule is construed

narrowly to apply only to answers that can be derived from

“business records.” See Wagner v. Fishing Co. of Alas., Inc.,

2008 WL 281333, at *1 (W.D. Wash. July 18, 2008) (citing cases).

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Interrogatory 3 asks for the factual basis of ATTC’s

allegation that Hypertherm engages in an improper means of

competition by threatening to void its warranties if its

customers use non-genuine consumable parts. ATTC responded by

objecting but also stated that previously produced documents,

including certain notes, correspondence, and catalogs were

responsive to the question. ATTC listed certain Bates numbered

documents, but cautioned that those were only illustrative and

that Hypertherm “should review ATTC’s previous production in its

entirety and make its own determination as to responsiveness of

previously produced documents.”

Interrogatory 4 asks for the factual basis of ATTC’s

allegations about Hypertherm’s false or misleading assertions

pertaining to ATTC as alleged in Counts V, VIII, and X of ATTC’s

counterclaim. ATTC made its standard objections and also

asserted that all documents that have been and will be produced

in discovery were responsive to the question and identified

certain documents by Bates numbers but only as illustrations,

again directing Hypertherm to review all of the discovery

produced.

Interrogatory 5 asks for the factual basis of ATTC’s

allegations of tortious interference. ATTC gave the same answers

as to the previous interrogatories with some Bates numbered

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documents as illustrations. Interrogatory 6 asks for the factual

basis ATTC’s allegations that Hypertherm controls, maintains, or

fixes the prices of its consumable parts, and ATTC gave the same

answer as above. Interrogatory 9 asks for the extent of ATTC’s

knowledge about “allegations in ATTC’s Counterclaim in 1994, in

2001, in 2002, and in August 2006.” In response, ATTC objected

and again stated that documents previously produced and those

that would be produced “would reflect the knowledge of ATTC

around the various times set forth in this Interrogatory.”

ATTC makes no effort to justify its answers in light of Rule

33(d). Instead, ATTC argues that responding to the

interrogatories would be a “herculean task,” that it has expended

significant time and money in its attempts to respond, and that

the Rule 33(d) option was necessary to prevent an undue burden on

its counsel. ATTC also argues that interrogatories are not

useful in complex litigation, such as patent cases, and that full

answers to the interrogatories would be too extensive to be

useful. ATTC’s explanation for its failure to adequately respond

is not persuasive. 

Therefore, ATTC shall provide complete and responsive

answers to Hypertherm’s interrogatories, as they are construed in

this order. That is, ATTC shall provide the primary evidentiary

basis for its allegations and the counts in its counterclaim on

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the issues identified in the interrogatories. If its response to

an interrogatory is made under Rule 33(d), ATTC shall comply with

the rule’s requirements and provide a narrative answer that

explains its response.

II. ATTC’s Motion for Protective Order

ATTC seeks a protective order that would postpone its

obligation to provide answers to Hypertherm’s interrogatories

until after discovery on its counterclaim has closed. 

A party may seek a protective order from discovery upon a

showing of good cause. Fed. R. Civ. P. 26(c)(1). The court,

based on finding good cause, may protect a party from “annoyance,

embarrassment, oppression, or undue burden or expense,” by, among

other remedies, specifying the time for the disclosure requested

in discovery. Fed. R. Civ. P. 26(c)(1)(B). Courts are afforded

wide discretion in the management of discovery. Educadores

Puertoriquenos en Accion v. Hernandez, 367 F.3d 61, 67 (1st Cir.

2004).

In this case, ATTC contends that Hypertherm’s

interrogatories cannot be answered before the close of discovery

on the counterclaim because the answers depend on information

that is largely in Hypertherm’s possession. ATTC asserts that

answering the interrogatories now would cause prejudice and would

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be unduly burdensome because supplementation would be necessary

as ATTC gains additional information about the ten counts in its

counterclaim. In particular, ATTC fears that Hypertherm would

file a dispositive motion based on its incomplete answers to the

interrogatories.

ATTC filed its amended counterclaim on October 27, 2006. A

month later, ATTC moved to extend the discovery deadlines. 

Hypertherm moved to dismiss or in the alternative for summary

judgment on the counts alleged in ATTC’s counterclaim. 

Hypertherm also moved to bifurcate the counterclaim from the

patent case and to stay discovery on the counterclaim. 

On December 27, 2006, the parties entered a stipulation to

extend certain discovery and filing deadlines. On February 1,

2007, the court granted Hypertherm’s motion to bifurcate the

counterclaim from the patent infringement case and stayed

discovery on the counterclaim until Hypertherm’s pending

dispositive motion on the counterclaim was resolved. The parties

were directed to file a discovery plan to the extent any

discovery was necessary to address Hypertherm’s pending motion. 

ATTC requested and Hypertherm agreed to provide certain discovery

pertaining to the counterclaim for purposes of the pending

motion. On September 11, 2007, Hypertherm’s motion was granted

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as to summary judgment on Count I of ATTC’s counterclaim and was

otherwise denied.

Five months later, after the court issued its order on claim

construction, ATTC moved for a certificate of appealability on

the summary judgment order entered on September 11, 2007. The

motion was denied as untimely. The court reminded the parties

that discovery on the counterclaim was stayed only until

Hypertherm’s dispositive motion was resolved, which had occurred

on September 11, 2007. 

The court ordered the parties to file a discovery plan for

the counterclaim on or before May 1, 2008. As amended, the

parties’ discovery plan required mandatory initial disclosures by

June 20, 2008. In addition, the parties agreed to provide

electronic disclosures by June 1, 2008, and all fact discovery

was to be completed by November 3, 2008. The deadline for all

discovery, including experts, was March 2, 2009.

Recently, the parties’ filed a joint motion to extend the

discovery deadlines, which was granted. Fact discovery will now

close on January 2, 2009, and all discovery will close on March

13, 2009. 

ATTC has had months to provide adequate responses to

Hypertherm’s interrogatories. ATTC has not shown any basis for

delaying its answers until the close of all discovery on March

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13, 2009. Instead, ATTC shall provide complete answers, as

outlined in this order, on or before January 23, 2009. ATTC also

will be required to supplement its answers as required under

Federal Rule of Civil Procedure 26(e).

Conclusion

For the foregoing reasons, the plaintiff’s motion to compel

(document no. 343) is granted as is more fully explained in this

order. The defendant is ordered to provide complete and

responsive answers to Interrogatories numbered 3, 4, 5, 6, and 9,

failing which the counts of the defendant’s counterclaim

referenced by those interrogatories will be dismissed with

prejudice. The defendant’s motion for a protective order

(document no. 321) is granted to the extent that the deadline for

the defendant to provide its answers to the plaintiff’s first set

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of interrogatories on the counterclaim is January 23, 2009, and

is otherwise denied. 

No costs or fees are awarded at this time.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 29, 2008

cc: Jill C. Anderson, Esquire

Jacob K. Baron, Esquire

Steven M. Bauer, Esquire

Lucas M. Blower, Esquire

Colin G. Cabral, Esquire

Seth M. Cannon, Esquire

Joseph A. Capraro, Jr., Esquire

Christopher J. Carney, Esquire

Jeffery M. Cross, Esquire

Joseph T. Cattilo, Esquire

Ami D. Gandhi, Esquire

Maia H. Harris, Esquire

Marc H. Kallish, Esquire

Rhett R. Krulla, Esquire

Jonathan A. Lax, Esquire

Richard C. Nelson, Esquire

W. Scott O'Connell, Esquire

Jeremy P. Oczek, Esquire

Richard D. Rochford, Jr., Esquire

David W. Ruoff, Esquire

John T. Shapiro, Esquire

John M. Skeriotis, Esquire

Benjamin M. Stern, Esquire

Wayne Tang, Esquire

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