Special Discovery Master Resolves Discovery Issues Concerning Sufficiency of Document Production and Contention Interrogatories

April 26, 2018


In Imorphics Ltd. v. THINK Surgical, Inc., C.A. No. N16C-09-149-MMJ-CCLD, a special discovery master was tasked with resolving cross-motions to compel. The plaintiffs’ motion argued that the defendant, THINK Surgical, Inc., failed to sufficiently respond to certain interrogatories and requests for production. Specifically, the plaintiffs requested THINK to identify and quantify all damages it claimed to have suffered and identify all documents relating to the quantification of damages. In response, THINK argued that a request to provide calculations and formulae for calculating damages called for expert testimony. Moreover, THINK asserted that it had already provided hundreds of pages of documents and any further production was not reasonably proportional to the needs of the case. After considering the competing arguments, the special master found that THINK’s narrative response failed to quantify any facts that would be pertinent to an expert’s calculation of damages, and ordered THINK to provide, to the extent possible, a quantification of data that may serve as the underpinnings of a subsequent expert damages analysis or provide further specificity in the form of a narrative response that identified supporting documents.

Additionally, the plaintiffs argued that THINK must produce its federal tax returns in response to requests for production seeking business and financial documents. The special master disagreed and found that, as compared to other forms of financial information, tax returns are entitled to a greater degree of protection. Accordingly, the special master concluded that discovery of tax returns was not appropriate at the present time, but such a request could be renewed in the event that the other financial information produced by THINK did not provide the plaintiffs with the requested information.

In THINK’s motion to compel, THINK sought to compel responses to two contention interrogatories that the plaintiffs argued were premature. In considering the issue, the special master noted that under Rule 33(c), the Court may order that contention interrogatories need not be answered until after designated discovery has been completed or until a pretrial conference or other later time. However, where a party had a factual basis under Rule 11 for an allegation, courts have required parties to respond to contention interrogatories with the information presently known and to supplement the responses if new information is learned in discovery. Based on this analysis and the nature of the contention interrogatories at issue, the special master ordered the plaintiffs to respond using their present knowledge to those interrogatories seeking the basis for the plaintiffs’ claims.

Analysis: Depending on the nature of the dispute, CCLD judges may order that discovery matters be handled by a special master. As shown in the Imorphics case, experienced special masters utilized by CCLD judges can address discovery disputes in expedited fashion. Here, the dispute was submitted for resolution on December 22, 2016, and the special master issued his 41-page opinion on January 5, 2017. Imorphics also touched on a number of discovery issues that arise frequently, such as responses to contention interrogatories and discovery of tax returns. Ultimately the special master acknowledged that there was no rule limiting the use of contention interrogatories early in a case—particularly where, as here, the contention interrogatories sought the factual basis for the plaintiffs’ claims.

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