Can your TCPA defendant blow off imperfect discovery requests?
- Peter Schneider
- Jun 20
- 9 min read
There are many pro-se telephone consumer protection act plaintiffs going after illegal calls in civil lawsuits, and discovery is particularly important in these cases.
Even seasoned lawyers struggle with making 'perfect' discovery requests that can't be reasonably objected to, so pro se TCPA plaintiffs routinely receive objections to discovery requests and have to overcome them. Let's look at objections that went to court and what the court said to help our pro se plaintiff friends in their arguments.
Parties are entitled to seek discovery of any non-privileged matter that is relevant to any claim and/or defense in the action. Fed. R. Civ. P. 26(b)(1). The discovery sought may include information that is not admissible as long as it appears reasonably calculated to lead to the discovery of admissible evidence. This defines the scope of discovery in federal civil litigation in general. The party responding to discovery requests shall use common sense and reason. E.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 U.S. Dist. LEXIS 36343, 2008 WL 1924935, *8 (D. Kan. Apr. 30, 2008). Hyper-technical, quibbling, or evasive objections are not viewed with favor. The responding party has a duty to supplement any previously provided responses if the information sought is later obtained, or the response provided needs correction. Fed. R. Civ. P. 26(e). The Discovery and Scheduling Order limits the parties to 25 interrogatories as permitted by Federal Rule of Civil Procedure 33; 25 requests for admission according to Federal Rule of Civil Procedure 36 [this was imposed by this judge, the rule does not define a limit to the number of RFAs]; and 25 requests for production according to Federal Rule of Civil Procedure 34. [this was imposed by this judge, the rule does not define a limit to the number of RFPs]. Parties may propound written interrogatories (questions) on other parties in an action, inquiring to any matter within the parameters of Rule 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must respond to the interrogatories to the fullest extent possible, Fed. R. Civ. P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4). Failure to timely serve responses waives objections to the interrogatories. Fed. R. Civ. P. 33(b)(4). Federal Rule of Civil Procedure 36 empowers a party to serve on any other party a request to admit the truth of facts, the application of law to fact, or opinions about either and the genuineness of any described documents. Fed. R. Civ. P. 36(a)(1)(A), (B). A matter is deemed admitted "unless, . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney." Conlon v. U.S., 474 F.3d 616, 621 (9th Cir. 2007). In their opposition, Defendants contend that Plaintiff's motion should be denied because he did not meet and confer with defense counsel before filing his motions. Although encouraged, compliance with Local Rule 251 and the requirements set forth in Federal Rules of Civil Procedure 26 and 37, including efforts to meet and confer with opposing parties before filing a motion to compel action, is not required in this action. [The plaintiff dodged a bullet on this, always include an attempt to reach the other side with a phone call to meet and confer on discovery disputes before going to the judge, and document your efforts in your motion] Defendants also argue the merits of their responses to Plaintiff's discovery requests, relying mainly on Plaintiff's procedural error of propounding interrogatories in discovery sets titled as requests for admissions. Although Plaintiff titled his discovery as sets "of admission," the vast majority of his discovery requests are actually interrogatories, interspersed with a few admissions. Perhaps because of Plaintiff's lack of knowledge of legal proceedings, he was unaware that the standard discovery practice is to serve different discovery requests (i.e. interrogatories, requests for admission, requests for production) as separate, distinct sets of discovery. For example, a set of requests for admissions should only contain requests for an opposing party to admit the truth of matters. Narrative style responses to questions should be propounded in a separate set of interrogatories. Plaintiff's novice error of combining interrogatories and requests for admissions in a document titled as the latter is not so great an error to excuse Defendants from providing responses. [Other judges might use this an excuse to deny the plaintiff so best to not make this mistake] Although Plaintiff's discovery requests contain technical flaws, defense counsel's technical objections are not well taken. Defendants could have, and should have, responded to Plaintiff's inquiries which should have been propounded as interrogatories by stating their objection as to form, construing the inquiry as an interrogatory rather than a request for admission, and without waiving any objections, providing responsive information. Defendants need not provide further responses to Plaintiff's discovery requests to which they have previously provided substantive responses, but they must do so for all of Plaintiff's requests to which they previously did not respond based on the form of the request. As to Plaintiff's discovery requests to which Defendants have already provided substantive responses, Plaintiff has not met his burden as the moving party. Plaintiff's mere assertion that "both defendants (sic) answers was (sic) vague" is inadequate. Plaintiff does not demonstrate why the information sought in his interrogatories is relevant, why the responses provided are deficient, and why any objections are not justified. [best practice is to explain why further responses is relevant to the needs of the case] Thus, Plaintiff is not entitled to compel further responses from Defendants as to those discovery requests for which Defendants have provided substantive responses.
Telemarketers are generally dishonest people, and often the discovery responses the generate are also dishonest. However a TCPA plaintiff must be careful not to keep asking the same question different ways to trip up the telemarketer, but to elicit true impeachment materials that contradict the dishonest responses.
Defendants have responded to 13 sets of discovery, totaling 163 interrogatories and 97 requests for production. On September 21, 2016, counsel for Defendants received 6 additional sets of discovery, totaling 150 requests for admission. Defendants assert the requests for admission are duplicative and amount to harassment. Plaintiff contends Defendants have not provided honest and truthful answers, which require him to serve additional discovery on Defendants. The Court finds limiting discovery is appropriate in this case. Plaintiff has already served numerous discovery requests on Defendants. The requests for admission seek duplicative information from the previous discovery requests. For example, in his interrogatories, Plaintiff requested information regarding the vehicles he was transported in from September 2011 to current. In the requests for admission, Plaintiff asks for information regarding the vehicles he was transported in on specific dates in September 2011. Plaintiff's distrust in Defendants' discovery responses does not justify the additional discovery requests. See Scott v. Palmer, 2014 U.S. Dist. LEXIS 165665, 2014 WL 6685810, *3 (E.D. Cal. Nov. 26, 2014) ("Mere distrust and suspicion regarding discovery responses do not form a legitimate basis to further challenge responses which are facially legally sufficient; and Plaintiff is entitled neither to continue demanding additional and/or different evidence in support of discovery responses already provided nor to expand the scope of discovery beyond that sought in the initial discovery request."). [A way to attack untruthful answers is find impeachment evidence, not to keep asking the same questions different ways in discovery]
Requests for admission are often a glass cannon. Powerful potential, yet easy to ruin. RFAs are the most nuanced discovery tool and TCPA plaintiffs should study exactly how they work. For example, when defendant responds to them with a "can't admit or deny" look closely at the explanation, and at the other evidence in the case. Does the defendant have a legitimate basis to claim that it can't admit or deny the RFA? Did they do a reasonable investigation?
The Federal Rules of Civil Procedure permit only five forms of responses to a request for admission: (1) an unqualified admission; (2) an unqualified denial; (3) a detailed explanation why the matter can be neither admitted nor denied after reasonable investigation of the information that is known or readily available; (4) a qualified admission which explains the need for and substance of the qualification; and (5) an objection to the request. Under Rule 36, "[t]he propounding party 'bears the burden of setting forth its requests simply, directly, not vaguely or ambiguously, and in such a manner that they can be answered with a simple admit or deny without an explanation.'" The party requesting admission may move for the court to "determine the sufficiency of an answer." Fed. R. Civ. P. 36(a)(6). When a court finds that "an answer does not comply with [Rule 36], the court may order either that the matter is admitted or that an amended answer be served." "The analysis into whether the answers or objections are sufficient focuses on the specificity of the response and not on whether the response is [factually] correct." A court may deem a matter admitted if an answer is "evasive or fail[s] to respond to the substance of the question, and the evidence establishes that the request should have been admitted.". Gamesmanship in the form of non-responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted. The court's review of a motion to determine the sufficiency of the answers is guided by the purpose of Rule 36 and requests for admission. Rule 36 serves to "facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be." Requests for admission are used to narrow the array of issues before the court, and thus expedite both the discovery process and the resolution of the litigation. Requests for admission are not substitutes for other discovery devices and are designed to reduce trial effort and promote litigation efficiency. The court's review of State Farm's motion to determine the sufficiency of Maggie's Auto's answers requires navigating a tension within the text of Rule 36(a)(4). The first sentence of Rule 36(a)(4) indicates that, when a responding party cannot admit or deny a request for admission, a sufficient answer is one which "state[s] in detail" what efforts have been made to respond. However, the third sentence suggests that if a responding party cannot admit or deny due to "lack of knowledge or information," a sufficient answer requires no further detail so long as the responding party recites that "it made a reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny." Id. Thus, the internally conflicting sufficiency requirements of Rule 36(a)(4) present an issue: whether a responding party must detail the "reasonable inquiry" that it made in its response to sufficiently answer that it "lacks information or knowledge" to admit or deny a request for admission. This court has held that a responding party who answers that it cannot admit or deny a request for admission for reason that it lacks knowledge or information must make a reasonable inquiry and provide a detailed explanation of its efforts to investigate before its answer can be sufficient under Rule 36(a)(4). A general statement that [a party] can neither admit nor deny, unaccompanied by reasons, will be held to be an insufficient response. The majority of courts within the Fourth Circuit have likewise held that compliance with Rule 36(a)(4) requires a responding party to detail its reasonable inquiry. A party must give reasons for a claimed inability to respond. It is not enough to claim lack of knowledge. A party must show the information is not reasonably within its power to obtain. Utilizing the "magic words" of Rule 36(a)(4) does not discharge the duty of a responding party to comply with Rule 36 in good faith. "Generally, a 'reasonable inquiry' is limited to review and inquiry of those persons and documents that are within the responding party's control[,]" and includes investigation of the party's "officers, administrators, agents, employees, servants, enlisted or other personnel, who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response." Ordinarily, a "reasonable inquiry" does not require an investigation of third parties, absent sworn deposition testimony of the third party. However, a responding party must inquire of a third party where "there is some identity of interest manifested, such as by both being parties to the litigation, a present or prior relationship of mutual concerns, or their active cooperation in the litigation, and when there is no manifest or potential conflict between the party and the third party."
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington, Oregon, or Montana?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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