TEXASLDPC INC., Plaintiff, v. BROADCOM INC., LSI CORPORATION, AVAGO TECHNOLOGIES U.S. INC., Defendants C.A. No. 18-1966-SB United States District Court, D. Delaware Signed December 16, 2022 Counsel Gregory Robert Booker, Warren K. Mabey, Jr., Fish & Richardson, P.C., Wilmington, DE, Bret T. Winterle, Pro Hac Vice, David H. Hoffman, Pro Hac Vice, Lawrence K. Kolodney, Pro Hac Vice, Michael R. Headley, Pro Hac Vice, Rodeen Talebi, Pro Hac Vice, for Plaintiff. Adam Wyatt Poff, Robert M. Vrana, Young, Conaway, Stargatt & Taylor LLP, Wilmington, DE, Ramy E. Hanna, McKool Smith, Houston, TX, Steven J. Rizzi, Pro Hac Vice, for Defendant. Rychlicki, Helena C., Special Master SPECIAL MASTER RULINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S MOTION TO COMPEL DISCOVERY (D.I. 417) *1 Pending before the Special Master is a discovery dispute raised by Plaintiff regarding its motion to compel discovery responses from Defendants. Specifically, Plaintiff seeks a ruling that Defendants’ numerosity objections to Plaintiff's discovery, including Interrogatory (“ROG”) Nos. 24-28, and Requests for Admission (“RFA”) Nos. 1-25 are without merit and should be overruled, and thus this outstanding discovery must be answered. (D.I. 417). Defendants responded by Letter Brief opposing the motion on December 6, 2022. I held a hearing regarding the dispute on December 8, 2022. I have reviewed and considered the parties’ letter briefs and attached exhibits, cited case law, and the parties’ arguments made at the hearing. LEGAL STANDARD Federal Rule of Civil Procedure 33 governs interrogatories to parties, and states in part “a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” Fed. R. Civ. Pro. 33(a)(1) (emphasis added). In this case, the Court allowed a “maximum of 30 interrogatories, including contention interrogatories, ... for each side.” D.I. 151 ¶4. Rule 33 does not define the term “discrete subparts,” but the Advisory Committee does give an example of an interrogatory that would count as one interrogatory, although it has several subparts.[1] Courts have wrestled with determining whether an interrogatory contains more than one discrete subpart. See generally Erfindergemeinschaft Uropep GbR v. Eli Lilly and Co., 315 F.R.D. 191 (E.D. Tex. 2016). It appears that several Courts, including this District, review numerosity objections to interrogatories on a case-by-case basis. See Id. at 197; See also Medigus Ltd. v. Endochoice, Inc., C.A. No. 15-505, 2016 WL 5791409 at *2, n.4 (D. Del., July 19, 2016) (determining whether interrogatories counted as more than one). An objection can be waived if it is not brought within the prescribed timeframe for objections to interrogatories. Barkes v. First Corr. Medic., C.A. No, 06-104, 2010 WL 1962797 at *2 (D. Del. May 17, 2010). Rule 33 provides that more than 25 interrogatories may be propounded with leave of the Court. In addition, it counsels that “[l]eave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2).” Fed. R. Civ. Pro. 33(a). Rule 26 permits the Court to alter the limits on the number of interrogatories. Fed. R. Civ. Pro. 26(b)(2)(A). The Court, however, must limit the extent of discovery if it determines the discovery sought is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. Pro. 26(b)(2)(C)(i). *2 As the Special Master appointed in this action, my authority is governed by Fed. R. Civ. Pro. 53 and this Court's Order Appointing Special Master (D.I. 231). I am authorized “to require the submission of reports, call conferences, and hold hearings in order to determine the status of issues relating to discovery and to issue orders requiring the parties to adhere to case management dates set by the Court.” In addition, I am authorized to “hear, resolve and make rulings on all disputes regarding discovery and, when appropriate, enter orders setting forth [my] rulings.” D.I. 231 at ¶3. This is a discovery dispute about obtaining interrogatory responses. Therefore, my authority extends to granting leave to propound the additional interrogatories requested. DISCUSSION 1. Requests for Admissions At the time that Plaintiff moved to compel discovery request responses from Defendants, Defendants had objected to the twenty-five requests on the grounds of numerosity, among other objections, and refused to answer. Before Defendants served their opposition to the instant motion, they informed Plaintiff that they would supplement their RFA responses which would moot their numerosity objections. Defendants served their supplemental RFA responses on December 6, 2022, the same day they served their opposition letter brief to Plaintiff's motion. I reviewed Defendants’ supplemental RFA responses before the hearing on this motion. Eighteen of Plaintiff's RFAs were styled as, “Admit that the document produced by Defendants that is Bates Numbered [Bates range] is a true and correct copy of the original document and is otherwise authentic within the meaning of the Federal Rules of Evidence 901-903.” Each of the eighteen RFAs has a different Bates range corresponding to a particular document produced by Defendants. (the “Authenticity RFAs”). Defendants’ supplemental RFA responses to each of the Authenticity RFAs read, “Defendants incorporate by reference their prior response, the General and specific objections as fully set forth herein. Subject to Defendants’ previously stated general and specific objections, Defendants respond to this Request as follows: This Request is denied as moot in light of the parties’ ongoing discussions relating to a stipulation of document authenticity.” During the hearing, I asked Defendants to explain further why they believed the Authenticity RFAs were moot. Defendants responded that they had forwarded a revision to the stipulation that included a carve-out, “with the caveat that people may challenge on a document-by-document basis.” In addition, Defendants asserted that we should not be discussing this issue because there had been no meet-and-confer regarding the matter. Plaintiff used 72% of their allotted requests for admission to request authentication of the documents. Defendants provided non-answers. Plaintiff is entitled to use its discovery tools to obtain relevant information. If Plaintiff is unwilling to wait to see if Defendants will challenge the authenticity of these documents, they may request that information by using their allotted RFAs. I do not agree that I must wait for the parties to meet and confer again regarding the Authenticity RFAs. The parties did meet and confer regarding the issue and Defendants agreed to supplement the responses. Their responses are deficient, and I have the authority to rule on Plaintiff's motion. Therefore, at the hearing, I asked Defendants to substantively supplement the Authenticity RFAs. Defendants’ counsel responded, “Sure.” To be very clear of my intentions, I now order Defendants to supplement Plaintiff's RFA Nos. 8-25, and either admit or deny the authenticity of the documents at issue. 2. Interrogatory Nos. 24-28 Plaintiff moves for an order compelling Defendants to respond substantially to ROGs 24-28. Defendants oppose on grounds of numerosity of the interrogatories (many discrete subparts in each interrogatory) and Plaintiff's delay in bringing the motion. *3 During the hearing, I discussed with the parties the issue of waiver of the numerosity objection for many of the interrogatories. Although Defendants made a general objection of numerosity for each set of interrogatories, they only specifically objected to ROGs 2, 4, 7, 20, 22, and 23. I do not however, need to reach the issue of waiver of the numerosity objection as to the other ROGs. I do not agree with Defendants’ count of discrete subparts for ROGs 2, 4, 7, 20, 22, and 23. Defendants count 62 discrete subparts; I, however, only count 15 discrete subparts. By either count, this means that Plaintiff has exceeded the number of interrogatories allowed in this case. Defendants assert that I do not have the authority to allow Plaintiff to exceed the 30-interrogatory limit memorialized in the Scheduling Order (D.I. 151). I disagree. Defendants were correct that I am not authorized to change Court-ordered case deadlines and I declined to do so for Plaintiff. See D.I. 416. As noted above, I am authorized to “hear, resolve and make rulings on all disputes regarding discovery and, when appropriate, enter orders setting forth [my] rulings.” D.I. 231 at ¶3. Plaintiff filed a valid motion requesting that I order Defendants to respond to ROGs 24-28. I may do so. Regarding ROG 24, Plaintiff has sufficiently explained why it needs a response. This is information that Plaintiff has not been able to obtain by any other method. In addition, ROG 24 is similar to ROGs 1, 22, and 23 in terms of some of the requested information; those ROGs have not been fully supplemented. Defendants argue that responding to this ROG is burdensome. Defendants also argue that Plaintiff waited too long to bring this issue to me. I disagree that Plaintiff waited too long. I do, however, agree with Defendants that responding to certain subparts of ROG 24 would be burdensome. I take notice of a declaration by a Broadcom employee that was submitted by Defendants in support of an earlier motion to compel (D.I. 251). I therefore order Defendants to respond to ROG 24 subparts i, ii, iii, vi, and vii. Regarding ROG 25, Plaintiff has sufficiently explained why it needs a response. This is information that Plaintiff has not been able to obtain by any other method. Indeed, Plaintiff attempted to obtain the information requested in this ROG by way of 30(b)(6) deposition topics. Defendants objected to preparing a witness and the Court has ordered that the only 30(b)(6) deposition allowed will be regarding damages. In addition, ROG 25 is similar to ROG 7 in terms of the requested information; that ROG has not been fully supplemented. I therefore order Defendants to respond to ROG 25. Regarding ROGs 26-28, Plaintiff explained that these interrogatories are all relevant to damages and request information that Plaintiff has not been able to obtain by other means. Defendants argue that these ROGs are unduly burdensome. They also argue that ROGs 27 and 28 seek expert opinions. I agree with Defendants that responding to ROGs 26 and 27 would be unduly burdensome and therefore deny Plaintiff's motion to compel responses. I disagree with Defendants that responding to ROG 28 is unduly burdensome and that it requests expert opinion. I therefore order Defendants to respond to ROG 27. CONCLUSION As detailed above, Plaintiff's Motion to compel responses to Requests for Admission Nos. 1-25 and Interrogatory Nos. 24-28 from Defendants (D.I. 417) is GRANTED IN PART AND DENIED IN PART. Because of the holidays, Defendants must serve the responses by January 13, 2023. *4 If I have not discussed certain assertions made or case law cited by the parties that does not mean that I did not consider them before making my Rulings and Recommendations. The parties are referred to D.I. 231 regarding procedures for any appeal of the Rulings and Recommendations. Such are the Rulings and Recommendations of the Special Master. Footnotes [1] “[A] question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” Amendments to the Federal Rules of Civil Procedure, Committee Notes, 146 F.R.D. 401, 675-676 (1993).