Richard B. McNamara.
ORDER
In this action for both legal and equitable relief, the Plaintiffs now move to compel the Defendants to answer six interrogatories. For the reasons stated in this Order, the Plaintiffs' motion is GRANTED in part and DENIED in part.
I
On June 27,2011, the Plaintiffs served upon the Defendants a "Second Set of Interrogatories and Requests for Production" ("Second Request"). The Second Request contained six separate interrogatories requesting, in pertinent part, that the Defendants:
1. Identify every circumstance in which the Cog billed the Resort and produce all documents supporting the response;
2. Identify every circumstance in which the Resort billed the Cog and produce all documents supporting the response;
3. Identify the date(s) of any vote(s) of the MPPC Board to award a limited partnership share in MWHPLP or the option to purchase a limited partnership share in MWHPLP to Charles Kenison and for each such vote identify the directors who participated in the vote and state how each director voted. Produce all documents supporting the response;
4. Identify all agreements between the Resort and the Cog concerning the shared use of any asset of either entity and/or
the compensation to be paid for any such shared use. For each such agreement, state whether the agreement was voted upon by the MPPC Board and, if so, state the date(s) of any such vote(s), identify the directors who participated in the vote, and state how each director voted. Produce all documents supporting the response;
5. Identify all entities that were identified, targeted[,] or approached as potential buyers of some or all of the Resort assets during the period from 2003 to 2006. Produce copies of all documents and materials provided to any such entity; and
6. Identify all entities that were identified, targeted[,] or approached as potential buyers of some or all of the Cog assets during the period from 2003 to 2006. Produce copies of all documents and materials provided to any such entity.
Also, for each interrogatory, the Plaintiffs also provided, "If any documents responsive to this request have already been produced, you may identify those documents by Bates number rather than producing those documents again."
The Defendants responded to the Plaintiffs' Second Request on or about August 24, 2011, and objected to each question on several grounds: (1) that the interrogatories exceed the maximum number of fifty (50) allowed under N.H. Super. Ct. R. 36; (2) that the questions are overly burdensome and harassing; (3) that because the documents necessary to respond to the interrogatories are no longer in the Defendants' custody or control and are, therefore, equally accessible to both parties, the Plaintiffs are required to find the information themselves; (4) that the relevant documents have already been provided; and (5) that a party need not create new documents in response to production requests.
As a preliminary matter, the Court finds that the Plaintiffs have not exceeded the maximum number of interrogatories allowed under Super. Ct. R. 36. Under Super. Ct. R. 36, "A party may file more than one set of interrogatories to an adverse party, but the total number of interrogatories shall not exceed fifty, unless the Court otherwise orders for good cause shown after the proposed additional interrogatories have been filed." The Plaintiffs assert that they have only "propounded 17 interrogatories on Mr. Presby and 11 on Mr. Bedor." See Plaintiffs' Memo, at 5, Exhs. D and E. They further provide that "[n]o other interrogatories have been propounded." Plaintiffs' Memo, at 5. The Defendants have not provided sufficient evidence to the contrary.
II
The thrust of Defendant's argument is that the information that Plaintiffs seek is contained in documents which have already been produced, or which are equally available to both sides. The Defendants assert, without contradiction, that the new owners of the Mt. Washington Hotel possess the Resorts' financial documents, and that "either party may arrange a time to examine and copy the documents." Defendant's Memorandum, p. 2, n. 2. Both parties cite federal cases, and seemingly assume that federal law is controlling.
Superior Court Rule 35 does not contain an explicit provision such as that of Federal Rule of Civil Procedure ("FRCP") 33(d), which allows a party to respond to an interrogatory by referring the inquiring party to the business records of the party upon whom the request has been served. However, a New Hampshire trial court has broad discretion to regulate discovery. N.H. Ball Bearings v. Jackson, 158 N.H. 421, 429 (2009); Johnston v. Lynch, 133 N.H. 79, 94 (1990). The Court finds that the principles underlying FRCP 33(d) are reflective of New Hampshire law in a case such as this, involving a complex business dispute spanning many years and involving voluminous discovery.
FRCP 33(d) provides, in relevant part:
(d) Option to Produce Business Records.
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting or summarizing a party's business records, (including electronically stored records), and if the burden
of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the inquiring party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts or summaries.
The large body of federal law regarding FRCP 33(d) has led to bright line tests regarding its applicability. In order for a party to avail itself of this rule, the responding party must: (1) affirm that the information sought is in the documents referenced; (2) affirm that responding in the traditional manner would impose a burden on it; (3) affirm that the burden of obtaining the information would be the same on both the inquiring and responding party; and (4) identify the documents from which the information may be ascertained. 8B Wright and Miller, Federal Practice & Procedure, Sec. 2178 (3d ed. 2011).
III
The first two interrogatories are almost identical and, thus, are analyzed together. The Plaintiffs request that the Defendants provide a list of every circumstance for which the Cog billed the Railway, and vice versa. The Defendants assert that because the Plaintiffs have equal access to the documents, the Defendants are not responsible for answering discovery relevant to those documents. Specifically, the Defendants argue that the original documents are no longer in their custody and control, but instead are being held in a location equally accessible to both parties. "[C]ompelling discovery from another is unnecessary when the documents sought are equally accessible to all." Baum v. Village of Chitte-nango, 218 F.R.D. 36, 40 (N.D.N.Y. 2003). That is, compelling discovery is improper where the discovery "sought can be obtained by the plaintiff just as easily as [it] can be obtained by the defendant." Blair v. Travelers Ins. Co., 9 F.R.D. 99, 99 (W.D. Mo. 1949); Fresenius Medical Care Holding Co. v. Baxter, 224 F.R.D 644 (N.D. Cal. 2004). In the present case, the parties have equal access to the documents relevant to interrogatories one and two because they are in the custody and control of a third-party. Moreover, the Defendants have specifically identified the category of documents that contain the information sought. The Plaintiffs have made no showing that it would be less burdensome for the Defendants to sort through the records and extract the requested information than the Plaintiffs. Therefore, requiring the Defendants to provide discovery based on those documents is improper.
Although there is some authority that FRCP 33(d) is not applicable where the business records of an entity are in the hands of a third party, see, e.g., National Fire Ins. Co. of Hartford v. Jose Trucking Co., 264 F.RD. 233, 240-41 (W.D.N.C. 2010), the principles underlying the rule are applicable in this case, where the records are in the hands of a successor entity.
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The Plaintiffs attempt to side-step the fact that the information is equally accessible to both sides by characterizing their interrogatories as "contention interrogatories." However, "'[contention' interrogatories are interrogatories that seek to clarify the basis for or scope of an adversary's legal claims." Starcher v. Correctional Med. Systems. Inc., 144 F.3d 418,421 n.2 (6th Cir. 1998). In other words, they are interrogatories, used primarily toward the end of discovery, that ask a party to apply facts to law. See Lucero v. Valdez, 240 F.R.D. 591, 594 (D. N.M. 2007). In the Plaintiffs' first two interrogatories, however, they do not ask for the facts that the Defendant will be using to establish their defenses. Instead, their interrogatories and document requests simply seek certain facts. Their remaining four interrogatories are similar in character. Such interrogatories are not contention-based and, more importantly, do not relieve the Plaintiffs of their burden to investigate, on their own, discovery equally accessible to both sides.
Similarly, with respect to the Plaintiffs' third and fourth interrogatories, the Defendants argue that they have submitted sufficiently relevant information on a number of occasions, including in the initial discovery request and during depositions. But more importantly, they specifically identify the category of documents where the relevant information can be found—the minutes of Defendant Mountain Properties Preservation Corporation. Although the Court does not agree that listing dates provided within documents is a request to "create a new document," the Court finds that the Defendants have met their burden by identifying, with sufficient specificity, previously disclosed documents where the information may be found. See, e.g., FRCP 33(d).
The considerations applicable to interrogatories 1 through 4 are applicable to interrogatory 5: the Defendants are asked to identify all entities that were identified, targeted or approached as potential Resort buyers during 2006 through 2006 and attach all documents relating to those entities. The Defendants claim that they have responded to questions on this issue during deposition and that all relevant documents were turned over to the plaintiffs in 2008.
It is not, however, clear from the Defendants' Memorandum whether or not the category and location of documents which are responsive to the Plaintiffs' request were identified by the Defendants. The responding party has the duty to specify by category and location the documents from which the answer can be de- rived. Dunkin' Donuts Inc. v. N.A.S.T., 428 F. Supp. 2d 761, 771 (N.D. Ill. 2005); In re Sulfuric Acid Litigation, 231 F.R.D. 351, 366 (N.D. Ill. 2005). Accordingly, the Defendants must specify the category and the location of the documents from which the answer can be derived.
IV
Finally, in reference to interrogatory six, the Defendants assert, without dispute, that the request seeks irrelevant information which has no bearing on the claims before the Court. The Plaintiffs' motion does not respond to that argument, and the Court does not understand how a list of entities that "were identified, targeted[,] or approached as potential cog buyers during 2003 to 2006" is relevant or would otherwise lead to the discovery of relevant evidence. For this reason, the Court finds that the Defendants' refusal to answer was proper.
Based on the foregoing, the Court DENIES the Plaintiffs' requests to compel responses to interrogatories one, two, three, four, and six. With respect to interrogatory five, the Court GRANTS the Plaintiffs' motion to the extent that Defendants must either answer the interrogatory or identify, with sufficient specificity, the category and location of the documents that contain the information.
SO ORDERED.
Richard B. McNamara,
Presiding Justice