UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Ben’s Auto Body, Inc.

v. Civil No. 07-cv-417-PB

Progressive Casualty Insurance Company

Progressive Direct Insurance Company

O R D E R

Plaintiff moves to compel answers to its second set of

interrogatories, nos. 1-3. Defendant objected to each

interrogatory and objects to the motion.

Discussion

This discovery dispute is, in essence, a rerun of the

initial dispute over interrogatory no. 14 in plaintiff’s first

set of interrogatories. That interrogatory and the response was

as follows:

14. Please identify each and every automobile damage

insurance claim in Rockingham County and Strafford

County, New Hampshire, handled by Progressive Casualty

Insurance Company and Progressive Casualty Insurance

Company since January 1, 2000 to date, and include in

your answer the following:

a) The name and address of each claimant;

b) The name and address of each auto body repair

facility hired to repair the claimant’s vehicle;

c) The repair rates charged by each facility in

repairing the claimant’s vehicle;

d) Whether the repair facility was chosen by the

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claimant or suggested to him/her by the Defendant.

RESPONSE: Progressive Casualty objects to this

Interrogatory on the ground that plaintiff has not obtained

a stipulation or leave of court to propound more than 25

interrogatories, including discrete subparts, as it is

required to do pursuant to Federal Rule of Civil Procedure

33(a). Progressive Casualty further objects to this

Interrogatory on the grounds that it is overly broad and

unduly burdensome, seeks information that is irrelevant to

any party’s claim or defense, or the subject matter of the

litigation, will not lead to the discovery of admissible

evidence, and otherwise exceeds the scope of discovery

permissible under Federal Rules of Civil Procedure 26(b) and

33. Finally, Progressive Casualty objects to this

Interrogatory on the grounds that it seeks information

regarding third parties that is subject to privacy

protections, without authorization or a court order

permitting the release of such information, and also seeks

confidential, proprietary information without the entry of a

protective order.

That motion to compel (document no. 27) was, as to interrogatory

no. 14, resolved by the parties by withdrawal of the motion

(document no. 37) and the following attorneys’ agreement:

(Defendant) will provide the total Progressive property

damage claims in these two counties (or the closest

geographical area available) back to December 2004.

Document no. 45-4.

Counsel for the parties apparently understood that sentence

quite differently. On August 19, 2009, in a second motion to

compel, plaintiff’s counsel sought the claims files for that area

and period. Document no. 45, ¶ 5. Defense counsel, as part of

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defendant’s objection, filed an affidavit setting forth his

recollection of the negotiations and agreement. Document no. 46-

2. He stated that there was never an agreement to provide claim

files but rather defendant would provide annual totals for

property damage claims paid by Progressive. Id., ¶ 6-7. Judge

Arenas denied plaintiff’s motion to compel on August 24, 2009. 

No affidavit to rebut the defense counsel’s affidavit was filed.

Plaintiff’s counsel did not seek reconsideration of Judge

Arenas’ order, nor was it appealed to Judge Barbadoro. Instead,

plaintiff’s counsel, without leave of the court, served three new

interrogatories. Document no. 50-2. Interrogatory no. 1 is not

substantive. Interrogatory no. 3 is the former interrogatory no.

14 recast in language to obtain the facts from claim files if not

the files. The prior agreement and order resolved it and the law

of the case controls. The motion to compel as to interrogatory

three is denied.

Interrogatory no. 2 does not appear to be a reiteration of

former interrogatory no. 14. Neither party has argued the

substance. It is clear that plaintiff did not seek leave to

serve additional interrogatories as required by Federal Rule of

Civil Procedure 33(a)(1). However, given the timing of the

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interrogatory - i.e., four days before discovery closed - I grant

leave nunc pro tunc and direct the parties to brief the merits of

compelling and denying a response to interrogatory no. 2 within

ten (10) calendar days.

The motion (document no. 50) is denied as to interrogatory

no. 3 and stayed as to nos. 1 and 2 until further briefed.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 27, 2009

cc: Earl L. Kalil, Jr., Esq.

 Christopher E. Ratte, Esq.

 Joseph P. Geiger, Jr., Esq.

 Lauren S. Irwin, Esq.

 Russell F. Hilliard, Esq.

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