MELISSA BARKER, Plaintiff, v. KAPSCH TRAFFICCOM USA, INC., et al., Defendants No. 1:19-cv-00987-TWP-MJD United States District Court, S.D. Indiana, Indianapolis Division Filed August 30, 2019 Counsel Jacob R. Cox, Cox Law Office, Jonathon Noyes, William E. Winingham, Wilson Kehoe & Winingham, Indianapolis, IN, for Plaintiff. Carly Jolene Tebelman, Darren Andrew Craig, Emily Schmale, Frost Brown Todd LLC, Indianapolis, IN, for Defendant Kapsch Trafficcom USA, Inc. Irina Kashcheyeva, Pro Hac Vice, Foley & Lardner LLP, Detroit, MI, Jonathan W. Garlough, Robert H. Griffith, Pro Hac Vice, Foley & Lardner LLP, Chicago, IL, Michael D. Leffel, Pro Hac Vice, Foley & Lardner LLP, Madison, WI, for Defendant Gila, LLC. Dinsmore, Mark J., United States Magistrate Judge ORDER ON SECOND MOTION TO COMPEL DISCOVERY *1 This matter comes before the Court on Plaintiff’s Second Motion to Compel Discovery [Dkt. 62]. The motion seeks an order compelling Defendant Gila, LLC (“Gila”) to respond to Plaintiff’s interrogatories and request for production. The motion is fully briefed and the Court, being duly advised, hereby GRANTS IN PART and DENIES IN PART the motion to compel for the reasons and to the extent set forth below. I. BACKGROUND The Court granted in part and denied in part the Plaintiff’s first motion to compel, which involved the same discovery requests as the instant motion. In that ruling, the Court instructed as follows: A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or provides evasive or incomplete responses. Fed. R. Civ. P. 37(a)(2)-(3). The burden “rests upon the objecting party to show why a particular discovery request is improper.” Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 449-50 (N.D. Ill. 2006). This burden cannot be met by “a reflexive invocation of the same baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.” Burkybile v. Mitsubishi Motors, Corp., 2006 WL 2325506, at *6 (N.D. Ill. August 2, 2006) (internal citations omitted). Moreover, in considering matters of proportionality, Rule 26(b) directs courts to consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). *** When a party raises objections to discovery requests, the objecting party bears the burden to explain precisely why its objections are proper given the broad construction of the federal discovery rules. In re Aircrash Disaster Near Roselawn, Inc. Oct. 31, 1994, 172 F.R.D. 295, 307 (N.D. Ill. 1997); see also Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). Thus, general objections to discovery requests that merely recite boilerplate language without explanation do not meet this burden, and courts within the Seventh Circuit consistently overrule them or entirely disregard such. See Novelty, Inc. v. Mountain View Mktg., 265 F.R.D. 370, 375 (S.D. Ind. 2009) (“ ‘general objections’ made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category, are not ‘objections’ at all—and will not be considered”); Burkybile, 2006 WL 2325506, at *9 (overruling boilerplate objections made generally and without elaboration).... As other Seventh Circuit district courts have noted, “[m]aking general objections is a dangerous practice, as the party who offers such general objections runs the risk of having them summarily denied.” Avante Int’l Tech., Inc. v. Hart Intercivic, Inc., 2008 WL 2074093, at *2 (S.D. Ill. 2008).... Further, when the objecting party raises nonspecific, boilerplate objections without clearly explaining how the request is objectionable, courts should overrule the objections in favor of broad discovery, pursuant to the federal rules. Novelty, 265 F.R.D. at 375 (holding that boilerplate objections without explanation are deemed waived); McGrath v. Everest Nat. Ins. Co., 625 F.Supp.2d 660, 671 (N.D. Ind. 2008) (staying the objecting party must specify why the discovery request is improper); In re Aircrash, 172 F.R.D. at 307 (noting that the federal discovery rules should be construed liberally and broadly). *2 [Dkt. 59.] The Court then overruled Gila’s Preliminary Statement and General Objections, gave Gila a deadline by which to provide a substantive response to Plaintiff’s discovery requests, and instructed Gila that, consistent with the guidance quoted above, any objections that it maintained were to be specific, detailed, and supported by evidence as required. The Order concluded: “It is the Court’s hope that Gila will seriously undertake its discovery obligations, thereby obviating the need for the Court to further address this issue.” Id. II. DISCUSSION Unfortunately, Gila did not heed the Court’s instructions and once again advanced numerous boilerplate objections without the necessary specific explanations to support them. The Court will address these boilerplate objections before turning to the more substantive issues raised by the motion to compel. A. Boilerplate Objections Gila has objected to each of Plaintiff’s interrogatories and document requests as “vague and ambiguous”; the Court does not find them to be so on their face, and Gila fails to adequately explain why it believes them to be. Accordingly, each of those objections is OVERRULED. So, too, are Gila’s objections that Interrogatory Nos. 2-7, 9, 11 and Document Requests Nos. 2-4 are overbroad and/or unduly burdensome. A party resisting discovery on the basis of undue burden must show with specificity that the discovery requests are issue are objectionable. See, e.g. Fair Oaks Dairy Farms, 2012 WL 3138108 at *3 (“Dairy Farms has not pointed to a single discovery request that it alleges would be overly burdensome.... Dairy Farms simply states that the discovery would be burdensome and expensive without greater detail. The insufficiencies are fatal to its request.”); Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum LLC, 2007 WL 1164970 at *4 (N.D. Ind. Apr.18, 2007) (quotation omitted) (“[I]f a party is to resist discovery as unduly burdensome, it must adequately demonstrate the nature and extent of the claimed burden by making a specific showing as to how disclosure of the requested documents and information would be particularly burdensome.”). This showing typically requires affidavits or other evidence supporting a party’s assertions of burden. See, e.g., Jenkins v. White Castle Mgmt. Co., 2014 WL 3809763 at *2 (N.D. Ill. Aug.4, 2014) (“What is required is affirmative proof in the form of affidavits or record evidence.”); Burton Mech. Contractors, Inc. v. Foreman, 148 F.R.D. 230, 233 (N.D. Ind.1992) (“An objecting party must specifically establish the nature of any alleged burden, usually by affidavit or other reliable evidence.”). As Gila has failed to provide the requisite support for these objections, they are OVERRULED. B. Specific Discovery Requests Gila makes specific arguments in support of a number of its objections to specific discovery requests. Each is addressed, in turn, below. 1. Interrogatory No. 2 Interrogatory No. 2 reads: Identify all individuals who have or may have knowledge or information related to any of the matters alleged in the Complaint, or your Answer or Affirmative Defenses thereto, including but not limited to any claims and defenses of the parties, and for each such person provide a detailed description of that person’s knowledge or information and identify any documents in his/her possession relevant to this litigation. Gila objects that this interrogatory is “premature” because it has not yet filed an answer or pled any affirmative defenses. That objection is without merit. Federal Rule of Civil Procedure 26(a)(1)(A) required Gila to identify similar information as part of its initial disclosures, which were due on May 15, 2019. Rule 26(a)(1)(E) further provides that “[a] party must make its initial disclosures based on the information then reasonably available to it” and “[a] party is not excused from making its disclosures because it has not fully investigated the case.” The same principle is applicable to Interrogatory No. 2. It is not objectionable because Gila has not yet filed an answer; rather, Gila remains obligated to answer the interrogatory with the information it has now, and to supplement its response once it files its answer, or as it obtains additional responsive information. See Fed. R. Civ. P. 26(e)(1) (setting forth requirement of supplementing discovery requests and initial disclosures). *3 Gila also objects, without elaboration, that the interrogatory “requests information protected by the attorney-client privilege and/or work product doctrine.” [Dkt. 66 at 13.] It does not. It requests facts; facts are not privileged. See, e.g., Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-CV-00195-WTL, 2014 WL 2881551, at *3 (S.D. Ind. June 24, 2014) (“As the Supreme Court explained in Upjohn, facts are not privileged.”) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). It also requests a list of documents; even if a document contains privileged information, the very existence of the document is not privileged. Gila’s objections to Interrogatory No. 2 are OVERRULED in their entirety. 2. Interrogatory No. 3 Interrogatory No. 3 reads as follows: Identify all documents, laws, regulations and/or policies or procedures that you admit you are governed by and/or required to follow when issuing Notices for Toll payments due. Gila objects to Interrogatory No. 3 on the ground that it “calls for legal conclusion and/or seeks information subject to the attorney-client and/or work product protections.” As Barker correctly notes, however, Federal Rule of Civil Procedure 33(a)(2) provides that “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.” While the wording of this interrogatory is not ideal,[1] the subject matter of the interrogatory is not inappropriate. Accordingly, the motion to compel is GRANTED as to the following modified version of Interrogatory No. 3: Identify all documents, statutes, regulations, policies, and procedures that apply to or govern Gila’s issuance of Notices for Toll payments due. To be clear, the interrogatory as modified asks for Gila’s knowledge, not that of its counsel, and therefore it does not call for privileged information. 3. Interrogatory Nos. 4, 6, and 11 and Document Request Nos. 2 and 3 Interrogatory No. 4 reads: Identify all individuals who were invoiced, provided notice, requested, or required, to submit payment, for amounts allegedly owed arising out of use of any Riverlink Toll Bridge(s) and for each such individual, state the following: a. The date(s) and location(s) on which such toll(s) were incurred; b. The amount charged to that individual for such toll(s); c. The date on and address to which the first Notice(s) of Toll was sent; d. The date on and address to which any subsequent Notice(s) of Toll was sent: e. The manner of mailing or other delivery for any and all Notice(s) of Toll sent; f. Identify any proof or evidence of mailing for any and all Notice(s) of Toll sent: g. Identify any proof or evidence of delivery for any and all Notice(s) of Toll sent: h. The amount of any administrative fee or penalty assessed, invoiced, or charged to that individual in relation to such Toll(s); i. Any documents or information you have that an individual did not receive any Notice(s) of Toll sent; j. The amount paid and date of payment by the individual for such Toll(s); k. The identity of the recipient of any such payment; l. The use of funds from any such payment; and m. Identify any documents evidencing or relating to the information sought in this Interrogatory. *4 Document Request No. 2 requests the documents identified in Interrogatory No. 4. Interrogatory No. 6 reads: For each individual identified in response to Interrogatory No. 4, describe in detail all efforts by you to collect on the amounts allegedly owed in relation to Toll Notices and identify any document evidencing or relating to the same. Interrogatory No. 11 reads: Do you admit that some individuals were assessed, charged, invoiced, or provided notice to pay administrative fees or penalties in a second (or other later) Notice of Toll where said individual(s) did not receive a first Notice of Toll? If so, identify all such individuals and instances and provide a detailed explanation identifying all facts and documents evidencing, relating to, or otherwise describing the reason for each such occurrence. If not, identify all documents evidencing, relating to, or supporting your assertion that such did not occur. Document Request No. 3 requests the documents identified in Interrogatory No. 11. Gila’s main objection to these discovery requests is that responding to them would be “incredibly burdensome” and therefore not proportional to the needs of the case. But, as noted above, Gila had the burden of providing evidence regarding what the burden would be, and it has failed to do so. Stating repeatedly that something would be “incredibly burdensome” and would require “enormous effort” does not satisfy Gila’s burden of demonstrating what that buden would be.[2] Further, the Court agrees with Barker that the information sought is relevant to, inter alia, the issue of numerosity, which Barker will have to address in her motion for class certification. Finally, the Court finds that the protective order that has been entered in this case, [Dkt. 34], will sufficiently protect any privacy concerns of the third-parties whose information is sought in these discovery requests. While Gila argues that “in the class action context, courts routinely deny motions to compel requests similar to this one for putative class member information when they are served prior to any grant of class certification,” [Dkt. 66 at 20], it offers no argument why identifying potential class members in this case should be delayed pending the certification of a class. Accordingly, the motion to compel is GRANTED as to Interrogatory Nos. 4, 6, and 11 and Document Request Nos. 2 and 3. 4. Interrogatory No. 5 Interrogatory No. 5 reads: Identify any other claim that has been made against Gila, LLC, in this State or any other, for similar conduct as that alleged in the Complaint and in doing so identify all documents evidencing or relating to said claim(s). Gila states that it has “already provided a substantive response to this Interrogatory and has not withheld any information based on its objections” and therefore the motion to compel is moot as to this interrogatory. [Dkt. 66 at 16.] However, Barker is entitled to an interrogatory answer, under oath, that is not subject to a series of improper boilerplate objections. Accordingly, the motion to compel is GRANTED as to Interrogatory No. 5. 5. Interrogatory No. 7 *5 Describe in detail your corporate structure and management, including but not limited to identification of all board(s), management, affiliates, subsidiaries, or parents as well as a description of your relationship to those entities that includes a description of whether and how any of them manage, govern, or otherwise control you (either directly or indirectly). In response to this interrogatory, Gila states that its sole member is ORG Gila LLC; that ORG Gila LLC has one member, Asset Performance Group, LLC; and that the sole member of Asset Performance Group, LLC, is Navient Corporation. The Court agrees with Gila that the remainder of the information sought in this interrogatory does not appear to be relevant to the issues in this case. Accordingly, the motion to compel is DENIED as to this interrogatory. 6. Interrogatory No. 8 and Document Request No. 4 Identify any insurance or other agreement that you have and under which an insurance business or other entity may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse for payments made to satisfy the judgment or your defense of this litigation. Document Request No. 4 seeks the documents themselves. It appears that Gila provided the information requested in these discovery requests after the motion to compel was filed. Accordingly, the motion is MOOT as to this interrogatory and document request. 7. Interrogatory Nos. 9 and 10 Interrogatory No. 9 reads: For each affirmative defense that you raise (or will raise) in your Answer to the Complaint, provide a detailed description of the factual and legal basis for that defense and identify any documents relating to the same. Interrogatory No. 10 reads: To the extent that you claim any non-party is responsible, in whole or in part, for the claims and liabilities asserted in the Complaint, identify each such non-party and provide a detailed factual and legal description of the basis for your assertion that such non-party is responsible that includes, but is not limited to, identification of all documents relating to, evidencing or supporting such assertion. As discussed above, “premature” is not a valid objection. If Gila has not yet identified any affirmative defenses and/or identified any non-party whom it will assert is liable in this case, it may so state, and then supplement its response as appropriate if it obtains additional information or otherwise changes its position. There is simply no rule that contention interrogatories may not be served at the beginning of a case. The motion to compel is GRANTED as to these interrogatories. 8. Document Request No. 1 Gila states in its response brief that it has produced all non-privileged documents that are responsive to this interrogatory and “will provide Plaintiff with a privilege log reflecting the few documents withheld on privilege grounds.” [Dkt. 66 at 6.] To the extent it has not yet done so, Gila shall provide the privilege log within fourteen days of the date of this Order. Along with its privilege log, Gila also shall verify in writing to Barker that it either has produced or does not have in its possession, custody, or control the documents identified in Barker’s reply brief as “missing.” [Dkt. 67 at 2-3]. C. Production of Electronically Stored Information in Native Format Barker asserts in her brief that Gila has failed to comply with the requirement that all electronically stored information be produced in its native format. See [Dkt. 30 at 4]. Although Gila states that it has done so, if Barker’s description of the manner in which Gila has produced documents is accurate, Gila clearly has not produced all of the information in its native format. To be clear, “native format” means the format in which the information being produced is maintained by Gila in the ordinary course of its business. For example, if Gila maintains information in a Word or Excel format, the information must be produced in Word or Excel format. If Gila maintains the information in a database, it must be produced in the format in which the database program saves and reads information, and it must include the metadata that was created by the database program. Producing screenshots from a database or a spreadsheet that contains information that has been extracted from a database is not producing the information in its native format. Within five days of the date of this Order, counsel shall meet and confer either in person or by telephone—not by email—to discuss and resolve this issue. The meeting shall include technical support personnel as necessary to ensure that everyone understands the native formats involved and the metadata that is created in those formats. If Barker remains unsatisfied with Gila’s ESI production after this meeting, she shall request a hearing on the matter. If the Court finds that Gila is willfully refusing to comply with the native format requirement, sanctions likely will result. III. CONCLUSION *6 For the reasons set forth above, Barker’s motion to compel [Dkt. 62] is DENIED as to Interrogatory No. 7, MOOT as to Interrogatory No. 8 and Document Request No. 4, GRANTED as to the modified version of Interrogatory No. 3 set forth above, and GRANTED in all other respects. With regard to all of the interrogatories and document requests as to which the motion is granted, Gila shall serve full and complete responses, not subject to any objection other than privilege, WITHIN FOURTEEN DAYS OF THE DATE OF THIS ENTRY. All electronically stored information shall be produced in its native format; any electronically stored information that was previously produced in a non-native format shall be re-produced in its native format by the same date. Also by that date, Gila shall serve a privilege log that identifies all responsive documents it has withheld on privilege grounds. Along with its privilege log, Gila also shall verify in writing to Barker that it either has produced or does not have in its possession or control the documents identified in Barker’s reply brief as “missing.” [Dkt. 67 at 2-3]. Given that Gila failed fully to comply with the Court’s order on Barker’s first motion to compel, as well as the fact that the vast majority of Barker’s second motion to compel has been granted, the Court may award Barker reasonable attorney fees. See Federal Rules of Civil Procedure 37(b)(2)(C) and 37(a)(5)(C). If Barker wishes to seek attorney fees, she must file a motion and supporting documentation on or before September 20, 2019. SO ORDERED. Distribution: Service will be made electronically on all ECF-registered counsel of record via email generated by the Court’s ECF system. Footnotes [1] In general, using the word “admit” in an interrogatory is best avoided. The purpose of interrogatories is to obtain information or pin down a party’s contentions; requests for admission are the correct mechanism for asking a party to admit a particular fact. [2] Gila also objects that the requests are unlimited in temporal scope, but this objection has been resolved by the fact that Barker has confirmed that the requests are limited to the Riverlink Toll Bridge program, which Barker states—without contradiction from Gila—did not begin until December 2016.