MEMORANDUM AND ORDER
DAVID J. WAXSE, Magistrate Judge.
Pending before the Court is High Point SARL's Motion to Compel Defendants to Answer Forty (40) Interrogatories (ECF No. 526). Pursuant to Fed. R. Civ. P. 37(a), High Point SARL ("High Point") seeks an order to compel Defendants to answer Fourth Interrogatory Nos. 26-29, Fifth Interrogatory Nos. 30-31, and any additional interrogatories High Point may propound within the limit. Defendants contend that they are not required to answer any further interrogatories because High Point's existing interrogatories contain discrete subparts that, when added together, exceed the number of interrogatories allowed. As explained below, High Point's motion to compel is granted in part and denied in part.
High Point filed this patent infringement case against Sprint Nextel Corporation, Sprint Spectrum L.P., SprintCom, Inc., Sprint Communications Company L.P., Sprint Solutions, Inc., APC PCS LLC, APC Realty and Equipment Company, LLC, and STC TWO LLC (collectively referred to as "Sprint") on December 29, 2008 in the United States District Court for the Eastern District of Virginia, alleging that Sprint's public mobile telephone network infringes upon High Point's network architecture and communication management patents. This case was transferred to the District of Kansas on May 18, 2009.
As of the time of this motion was filed, High Point had served the following 31 interrogatories on Sprint: First Set of Interrogatories Nos. 1-12; Second Set of Interrogatories Nos. 13-16; Third Set of Interrogatories Nos. 17-20; Fourth Set of Interrogatories Nos. 21-29; and Fifth Set of Interrogatories Nos. 30-31. Beginning with High Point's Fourth Interrogatory No. 26 and continuing through Fifth Interrogatory No. 31, Sprint objected to these interrogatories as exceeding the 40-interrogatory limit set by the Scheduling Order. According to Sprint, High Point exceeds the interrogatory limit because the following interrogatories (the "disputed interrogatories") should be counted as more than one: First Interrogatory Nos. 3, 10-11; Third Interrogatory Nos. 17-20; and Fourth Interrogatory Nos. 23-24. High Point filed this motion to compel Sprint to answer Fourth Interrogatory Nos. 26 through Fifth Interrogatory No. 31.
II. SUMMARY OF THE PARTIES' ARGUMENTS
High Point claims that this dispute concerns nothing more than how to count interrogatories, and that each of its interrogatories (numbering thirty-one by its count) seek information closely related to a singular, common theme. Although High Point recognizes that the interrogatory limit includes discrete subparts, it argues that subparts are discrete when they are marginally related to the interrogatory, while subparts seeking details concerning a common theme count as a single interrogatory.
Under High Point's reading of this Court's precedent, the inquiry is not whether the interrogatory can be broken down into separate questions, but whether the subparts are logically related to and necessary components of the primary question. Under this interpretation, High Point argues it is within the forty interrogatory limit and therefore Sprint must answer all its interrogatories.
Sprint urges the Court to deny High Point's motion for failure to adequately confer under D. Kan. Rule 37.2. Sprint argues that High Point's correspondence merely sought compliance and stated the common theme test, and did not explain how each of their disputed interrogatories met that standard nor address any of Sprint's general or specific objections. According to Sprint, High Point's support memorandum constitutes the first time Sprint has seen or heard many of High Point's arguments. As a result, Sprint disputes the sufficiency of High Point's attempts to confer, comprised of two exchanges of letters and a phone call, under the District of Kansas' local rules, given the scope and complexity of the disagreement.
Sprint also argues that High Point has taken the "common theme" test out of context. The proper test, according to Sprint, is that subparts are separate questions if they can stand alone. Because common subject matter does not necessarily equate to a common theme, subparts need not be unrelated to be discrete. By this standard, Sprint claims it acted in good faith when it answered forty-six interrogatories by their count, six more than required by the scheduling order. Sprint does not contend that all of High Point's interrogatories contain subparts, but those that do are only marginally related and easily severable from the main question.
In sum, High Point argues that none of the disputed interrogatories contain any subparts that should be counted separately, while Sprint argues that the disputed interrogatories contain subparts that should all be counted separately.
III. DUTY TO CONFER
Before a party can file a motion to compel, the Federal Rules of Civil Procedure and this district's local rules require the would-be movant to confer with opposing counsel in a good faith effort to resolve the dispute without court action.
Although Sprint is correct that a single letter cannot constitute a reasonable effort to confer under D. Kan. Rule 37.2,
A. Counting of Interrogatory Subparts
Federal Rule of Civil Procedure 33(a)(1) imposes a numerical limit on the number of allowable interrogatories. Under this rule, a party may serve a maximum of twenty-five written interrogatories upon any other party, including discrete subparts, unless the Court or stipulation from the opposing party allows more.
Discrete subparts are included in the interrogatory limit to prevent abuse, but remain problematic because they are often difficult to identify. As this Court first noted in Williams v. Board of County Commissioners of the Unified Government of Wyandotte County and Kansas City, Kansas:
As noted by this Court in Williams, and subsequent decisions in Swackhammer v. Sprint Corp. PCS,
Federal Practice and Procedure commentators Wright, Miller and Marcus have construed the advisory committee's guidance to mean that "an interrogatory containing subparts directed at eliciting details concerning a common theme should be considered a single question," while an interrogatory with "subparts inquiring into discrete areas is likely to be counted as more than one for purposes of the limitation."
Because subpart counting is inherently difficult, this Court has frequently ruled on such disputes,
The plaintiffs refused to answer this question, claiming that this one interrogatory comprised more than forty separate interrogatories, exceeding the number allotted to the parties. While the court recognized that the interrogatory spanned multiple alleged design defects and contained three discrete subparts,
Another instructive example comes from Semsroth, where this Court ruled that an interrogatory oriented around a common theme that contains instructions for the answering party on the type of information to be furnished in its answer does not automatically split a single interrogatory into multiples.
With these standards and examples in mind, this Court makes the following specific findings with regard to the disputed interrogatories:
Sprint argues that this question constitutes four interrogatories, because it asks "what are they," "where have they been," "how many have there been," and "when were they used." High Point argues that the question constitutes one interrogatory, related to ascertaining the structure of the hardware that makes up Sprint's allegedly infringing network.
The Court agrees with High Point. Under Williams, High Point's delineation of the details that should be included in Sprint's response does not turn this interrogatory into separate questions. The specific details concern a common theme — Sprint's hardware used in its CDMA Network since December 1, 2002. As such, this question constitutes
Sprint argues that this question constitutes two interrogatories, as the compliance with a CDMA standard is not necessarily dependent on using frame relay, ATM, or other statistically multiplexed protocols. High Point argues that the question should be counted as one, since the question is narrowly tailored to ascertain when Sprint migrated to a CDMA-compliant standard, and the protocols listed are merely examples of CDMA packetization methods.
Sprint claims that this question asks four discrete interrogatories because it asks Sprint to carve up a huge volume of data in four unrelated ways. High Point stresses that the common theme is Sprint's monthly revenue, and that the listed categories are more than marginally related. The Court agrees with High Point. The common theme of this question — revenue from Sprint's CDMA operations — is clear. That it asks for this revenue data to be provided in different ways does not serve to separate it into multiple inquiries. Thus, this question constitutes one interrogatory.
Sprint argues that this constitutes four interrogatories, because it asks "when was it added," "when was it removed," "what is it," and "where has it been." High Point argues that this question orients around the common theme of the dates of use of potentially infringing equipment. The Court agrees with High Point. Asking for dates of installation and dates of removal does not multiply the inquiry. Notably, Sprint correctly points out that this question has a similar construction to interrogatory No. 3, which this Court counted as one. This question similarly constitutes
Sprint argues that this constitutes two, if not four interrogatories, because it asks for a comprehensive identification of software and software updates, followed by the dates of each upgrade. High Point argues that the dates relate to the common theme of software update identification. The Court agrees with High Point, and notes that this too is similar to the construction of interrogatory No. 3. Because it follows a discernable common theme of software and updates installed on infrastructure products, this question thus constitutes
High Point argues that this counts as one interrogatory because it relates to the identification of hardware components used by Sprint in conjunction with their Infrastructure Products. Sprint argues that this constitutes three interrogatories, because it asks "what are they," "when was it removed," and "when was it installed." However, this question is similar in construction to Nos. 3 and 17, and for similar reasons constitutes one interrogatory.
Sprint argues that this question asks three discrete interrogatories: "what are they, where are they installed, and where are they now"? High Point insists that the common theme is self-apparent — the identity of core infrastructure products which are used in conjunction with one another to transmit voice data.
The Court agrees with High Point because Sprint's use of they in its briefing seems to concede that the BSC, MSC, and MGW components are interrelated. Therefore, the mere inclusion of identification categories does not serve to split this question into multiple interrogatories. Because both sides agree that these three pieces of equipment work together, and that this question requests the same information on all three components, this question thus constitutes
Sprint argues that there are at least three discrete interrogatories, and as many as five interrogatories contained within No. 23, because it asks "what are they," "when were they purchased," "for how much," "what documentation is there," and "when were they first used."
However, while Sprint concedes that the purchase date, purchase price, and documentation of purchase are all related enough to potentially count as one, it also argues that the date of use and identity of these products are somehow discrete enough to justify separating the interrogatory into multiple questions. The Court disagrees. This interrogatory should be counted as
Sprint argues that this interrogatory should be split into five, because it asks for (1) monthly customer counts, (2) monthly revenues, (3) monthly gross/net/actual profits and costs/expenses, (4) projected monthly profits and costs/expenses, and (5) the monthly sale of any other products or services to subscribers, all over a fifteen year period. High Point opposes the split, claiming that it should be counted as one under the common theme of profit derived from Sprint's operation of its accused network.
The Court disagrees with both parties, and finds that the interrogatory actually consists of two interrogatories. This question, in essence, asks Sprint for (1) the number of customers (by month) since 1996, and (2) monthly financial data since 1996, broken down by the categories specified in (b)-(g).
Sprint also argues that interrogatory Nos. 30-31 contain discrete subparts. Though High Point did not address Sprint's objections to these interrogatories specifically, this Court has an interest in preventing additional motion practice.
High Point does not indicate what its common theme for this question is, while Sprint argues that this interrogatory consists of at least eight discrete subparts. However, the Court recognizes that this interrogatory is similar to many of the previous interrogatories, in that it asks for information about a common theme, with a delineation of the various "slices" of information that should be provided about it. While the interrogatory is awkwardly phrased, this question should nonetheless be counted as
Sprint claims that this interrogatory comprises at least seven discrete subparts. High Point does not indicate their common theme in their brief. However, unlike the previous interrogatory, the Court cannot readily ascertain a common theme. Moreover, the mere fact that all of the questions vaguely relate to licensing would not make this extremely lengthy and detailed interrogatory a single inquiry, even if High Point had asserted a common theme. This Court cannot allow the "common theme" test to swallow the rule limiting interrogatory requests.
As a result, the Court finds that this question consists of eight discrete interrogatories; parts (a)-(f) are each one interrogatory, while part (g) consists of two interrogatories. This brings the total of interrogatories propounded by High Point to their limit of forty.
B. Sprint's General Objections
High Point also argues that Sprint's general objections to Interrogatory Nos. 26 through 31 are meritless and urges the Court to consider them waived. It asserts that Sprint did not make any meaningful effort to show application of these theoretical objections to any specific interrogatory, nor did Sprint provide any evidence to support its general objections to the interrogatories. In response to the motion, Sprint argues that it substantiated its general objections by specifically applying each objection in its responses to each individual interrogatory.
Reviewing the relevant two sets of interrogatories, the Court notes that Sprint asserts eleven general objections, as well as twelve objections to definitions and instructions in its response to High Point's Fourth Set of Interrogatories. Sprint asserts twelve general objections to High Point's Fifth Set of Interrogatories, eleven which are identical to the general objections to the Fourth Set. In its objections to the Fifth Set, Sprint incorporates by reference its objections to the definition and instructions to High Point's First and Fourth Sets of Interrogatories. It further sets forth six additional objections to definitions used in High Point's Fifth Set of Interrogatories.
All of Sprint's general objections are listed "to the extent" that the objection applies to any of the set of interrogatories. The final general objection, attempting to avoid later repetition, incorporates all of the general objections and inserts them into each specific interrogatory response "as if fully set forth therein." Sprint's definitional and instructional objections follow a similar pattern. While some of the general objections are specifically mentioned in later interrogatories, many of them make no further appearance within the interrogatories. For example, Sprint's general objection No. 2 to High Point's Fourth Set of Interrogatories objects on the basis of "attorney-client privilege, work-product doctrine, accountant-client privilege, and/or certain other privileges, doctrines, or immunities." Of the nine interrogatories included in the Fourth Set, only Interrogatory No. 26 has a specific objection based upon attorney-client privilege and work product. Sprint does not assert a specific objection based upon any privilege for the rest of the interrogatories. Moreover, Sprint provides no additional support for its claim of privilege in its general objections, specific objections, or response to the motion to compel.
This Court has set forth its position on general objections in Johnson v. Kraft Foods North America, Inc.:
Sprint, as the party resisting discovery, has the burden of supporting all of its objections, including its general objections.
In addition, the Court finds Sprint's assertion of numerous, repetitive, boilerplate, incorporated-by-reference general objections to be a violation of Fed. R. Civ. P. 26(g). Under Rule 26(g)(1), every discovery response or objection must be signed by at least one attorney of record or by the pro se party. By signing, the attorney or party "certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry," the discovery response or objection is "consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law."
The 1983 advisory committee comments to Rule 26(g) elaborate on the attorney's duties under the Rule. They provide that "Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37."
Considering the number of times this Court has made it clear that general objections such as those asserted by Sprint are invalid and inappropriate,
C. Sprint's Specific Objections
Finding all of Sprint's general objections to be waived, the Court next considers the specific objections Sprint (1) preserved by asserting in its initial objections to the interrogatories, and (2) continued to reassert and support in its response to the motion to compel. Based upon the parties' briefing with respect to the specific objections, the Court will address Sprint's specific objections to Fourth Interrogatory Nos. 26-29 together and then address the specific objections to Fifth Interrogatory Nos. 30 and 31.
1. Fourth Interrogatory Nos. 26-29
High Point's Fourth Interrogatory Nos. 26 through 29 asks Sprint to provide the following information:
In its initial responses, Sprint objected that the interrogatories are vague, ambiguous, overbroad, unduly burdensome, and seek irrelevant information. Sprint also asserted an attorney-client privilege objection in response to Interrogatory No. 26. It objected to Interrogatory Nos. 28 and 29 as duplicative and cumulative of other interrogatories. Sprint did not reassert its attorney-client privilege objection in its response to High Point's motion to compel and the Court considers that objection abandoned.
a. Vague and Ambiguous Objections
As the party objecting to the interrogatories as vague or ambiguous, Sprint has the burden to shown such vagueness or ambiguity.
High Point defends the wording of its interrogatories, arguing that they are neither vague nor ambiguous and Sprint should apply the ordinary meaning to the words and phrases in the context of this litigation. It further argues that Sprint has not provided any evidence to support its contention the terms and phrases are vague or ambiguous.
A party responding to discovery requests should exercise use common sense and reason to determine the meaning of words and phrases, and apply the ordinary meanings whenever possible.
Here, Sprint has sufficiently met its burden to show the terms and phrases "telecommunications networks," "telecommunications services" (No. 26), "dates for each software upgrade relating to each component" (No. 28), "Sprint Network," and "date of purchase for each geographic location" (No. 29) could be considered vague and ambiguous. Sprint's vague and ambiguous objections to Interrogatory Nos. 26, 28 and 29 are sustained.
For the terms "circuit-switch or packet-switch configuration" contained in Interrogatory No. 27, the Court finds that Sprint has failed to show that those terms or phrases are vague and ambiguous. High Point specifically defined these terms in the definitions section of its Fourth Set of Interrogatories. Sprint has not shown how these defined terms are otherwise vague and ambiguous. Sprint's vague and ambiguous objection to Interrogatory No. 27 is overruled.
b. Overbreath and Irrelevance Objections
Sprint objects that all the interrogatories are overly broad and seek irrelevant information for the same reasons the interrogatories are vague and ambiguous, i.e., the inclusion of undefined terms that do not have common meanings. As the Court is ordering High Point to provide definitions for many of the terms Sprint has objected to, this should resolve Sprint's overly broad and irrelevance objections based upon lack of defined terms.
Sprint also objects that Interrogatory Nos. 26-28 are overly broad because they are unlimited as to time period. The Court agrees with Sprint that Interrogatory No. 26 has an unlimited time frame and scope as written. The Court will therefore sustain Sprint's overly broad objection to the temporal scope of this interrogatory. Unless the parties agree on a different time period, the Court finds that Interrogatory No. 26 should be limited to patent licensing agreements in effect on or after December 1, 2002 — the date identified in Interrogatory No. 1. Sprint shall answer the interrogatory with the temporal limitation. Sprint has asserted similar objections to Interrogatory Nos. 27-28 because they are "unlimited as to time." These objections are overruled. Interrogatory Nos. 27-28 contain an internal reference to Interrogatory No. 19, which is explicitly limited to infrastructure products that were part of Sprint's CDMA network on or after December 29, 2002.
Sprint objects to Interrogatory No. 26 to the extent it requests information related to "voice-over-internet-protocol" as not seeking relevant information. It argues that it is a blatant attempt to obtain material relevant to another case pending before this Court, Sprint v. Vonage, D. Kan. Case No. 05-2433, and this information is irrelevant to Sprint's CDMA Network for handling voice calls. High Point does not address this issue and the Court does not find the relevancy of the request for "voice-over-internet protocol" readily apparent. Sprint's relevance objection to Interrogatory No. 26 is sustained to the extent the interrogatory asks for information related to "voice-over-internet-protocol."
Sprint also objects to Interrogatory No. 28 as seeking information that is not relevant. It argues that the dates for software upgrades on hardware components that have not been accused of infringement are irrelevant. High Point does not discuss this argument in its reply. The Court tends to agree with Sprint that information on software upgrades to hardware components that have not been accused of infringement does not appear to seek relevant information. Sprint's relevancy objection to Interrogatory No. 28 is sustained to the extent the interrogatory requests information on software upgrades on hardware components not accused of infringement in this action.
Additionally, Sprint argues that Interrogatory No. 29 asks for dates of purchase for infrastructure products, which are not relevant except as to unlicensed Nortel products. Sprint's argument as to the broad irrelevance of equipment purchase outside this limited scope is persuasive, especially given High Point's failure to address the relevance of this interrogatory in its reply brief. Sprint's relevancy objection to Interrogatory No. 29 is sustained. Sprint shall answer Interrogatory No. 29 with the following modification: "For each unlicensed Nortel product installed in the Sprint Network at any time on or after December 29, 2002, identify the date of purchase for each product and its geographic location in the Sprint Network."
c. Undue Burden and Cumulative Objections
Sprint objects to Interrogatory Nos. 27 through 29 on the grounds that responding to these interrogatories is unduly burdensome. For Interrogatory No. 27, Sprint claims that the interrogatory calls for the configuration of hundreds of thousands of different hardware components. It argues that there is no benefit to High Point in obtaining this information because the configuration of each component is unnecessary for it to prove its claims. High Point only needs information on the few key components or major assemblies identified that allegedly infringe the patents-in-suit. Not only would this type of information be incredibly burdensome for Sprint to provide on a component level for every component in the CDMA Network, High Point has already obtained narrative explanation of the relevant information during 30(b)(6) depositions of Sprint. Because High Point has already obtained such information through a less burdensome approach, it would be cumulative, duplicative and overly burdensome to compel Sprint to answer Interrogatory No. 27. Sprint generally refers the Court to the Rule 30(b)(6) deposition of Dwight E. Patton regarding protocols of bearer traffic in the accused Sprint network.
The Court has reviewed the pages of the Patton deposition filed,
Sprint argues that Interrogatory No. 27 "calls for the configuration of hundreds of thousands of different hardware components" without further explanation or discussion. Sprint has not offered any supporting evidence detailing and explaining the nature of the burden in terms of time, money and procedure required to answer the interrogatory. Instead, Sprint argues that there would be little benefit to High Point in obtaining this information and that High Point only needs information on a few key components or major assemblies. This is not sufficient to sustain its objection. Sprint's unduly burdensome objection to Interrogatory No. 27 is overruled.
Sprint also asserts a similar unduly burdensome objection to Interrogatory Nos. 28, claiming that the interrogatory's request for identification of the software on every individual hardware component unnecessary and encompasses hundreds of thousands of hardware components. It argues that the dates of all upgrades of all accused components would be very burdensome. The software was upgraded numerous times and each upgrade could take months to propagate throughout the network. To date, High Point has not identified any specific software upgrades as being relevant to its infringement theories. Sprint cites to the Rule 30(b)(6) depositions of Jay Bluhm and Young Zhao.
High Point does not discuss this objection in its reply; however, Sprint nonetheless has the burden to support its objection. The Court has reviewed the selected deposition cites provided by Sprint for the Bluhm and Zhao depositions
For Interrogatory No. 29, Sprint argues that it is unduly burdensome because it requests information for tens of thousands of infrastructure products. Sprint references the Rule 30(b)(6) deposition of its witness Yarkovsky. The Court has reviewed the selected excerpts from the Yarkovsky deposition
2. Fifth Interrogatory No. 30
In its initial responses, Sprint objected that the interrogatories are vague, ambiguous, overbroad, and unduly burdensome. Sprint further objected to the interrogatory:
In its response, Sprint argues that interrogatory subpart (b), which requests the purchase date of each Motorola SDU, is generally irrelevant if Motorola had a license to sell the product throughout the relevant time period. The Court agrees. High Point has not otherwise offered any argument why this information is relevant. Sprint's relevance objection to Interrogatory No. 30 is sustained. Sprint need only answer subpart (b) of High Point's Interrogatory No. 30 for "each unlicensed Motorola SDU."
Sprint also argues that subpart (f), which seeks identification of each cell station, BTS, BCS, MSC, and MGW that was used with each such Motorola SDU, is objectionable in its use of the ambiguous phrase "used with." It argues that this asks, in essence, for identifying information on the entire network operated by Sprint. In that subpart, High Point requests information on equipment far outside the scope of this actual litigation in an attempt to obtain irrelevant information it may find valuable in other contexts. The Court agrees with Sprint that phrase "used with" is ambiguous with respect to subpart (f) of this interrogatory. High Point shall provide Sprint with its definition of the phrase "used with" as it pertains to subpart (f) of Interrogatory No. 30.
As for subpart (g), Sprint argues that the relevancy of all software updates is questionable since information on updates which did not change the functionality of the equipment in a way related to the patents-in-suit is not relevant. The Court agrees with Sprint that to the extent subpart (g) requests information on updates for software that did not change the functionality of the equipment related to the patents-in-suit, that subpart appears to seek information that is not relevant. High Point has not otherwise made any argument in favor of its relevance. The Court will therefore sustain Sprint's relevancy objection to subpart (g) of Interrogatory No. 30. Sprint need only answer subpart (g) of High Point's Interrogatory No. 30 for software updates that changed the functionality of equipment related to the patents-in-suit.
Sprint additionally objects to High Point's definition of "Motorola SDU" because the definition includes any "Motorola Selection and Distribution Unit and/or Selector Distribution Unit"— terms that are themselves vague, ambiguous, and undefined. High Point does not address this argument in the briefing. The Court will sustain the vague and ambiguous objection and order High Point to provide Sprint with a more descriptive definition of the term "Motorola Selection and Distribution Unit and/or Selector Distribution Unit," as that term relates to "Motorola SDU" used in Interrogatory No. 30.
3. Fifth Interrogatory No. 31
Sprint initially objected to Interrogatory No. 31 as vague and ambiguous. It also objected to the interrogatory as overbroad and unduly burdensome to the extent that it requests Sprint to "describe in detail, including all facts and application of law to fact" and seeks "all facts and circumstances." Sprint further objected to this interrogatory for incorporating "any contention" and requesting a determination in subpart (g) whether something "can only be used" in a particular way or "whether Motorola's Equipment has any use other than that for use in a Sprint CDMA Cellular Network."
Sprint argues in its response to the motion that Interrogatory No. 31 is primarily objectionable because the question asks for "all facts and application of law to fact" for each listed subpart, and further, in subparts (c) and (f) demands information on "all facts and circumstances" supporting Sprint's contentions. This is the type of blanket requests that this Court has recognized as overly broad and unduly burdensome.
This Court has found interrogatories that ask a party to identify "each and every fact" or "all facts" supporting its allegations to be overly broad and unduly burdensome.
These "blockbuster" interrogatories require the responding party to provide the equivalent of a narrative of its entire case together with identification of virtually all supporting evidence for each and every fact.
Interrogatory No. 31 asks, for each subpart of information sought, that Sprint "describe in detail, including all facts and application of law to fact." Although the introductory language of the interrogatory asks Sprint to "describe in detail, including all facts . . .", the Court does not find that this makes the entire interrogatory per se objectionable. When taken together with the respective subparts, the Court finds that subparts (a) through (f) are sufficiently narrowed by the discrete topic or contention, and thus are not unduly burdensome and overly broad on their face. With regard to Sprint's objections to subparts (c) and (f) based upon their request for "all facts and circumstances" supporting its contentions, the Court does not find that this language renders the subpart overly broad and unduly burdensome. Subpart (c) asks Sprint to identify "all facts and circumstances" supporting any contention that there was an implied license granted to Sprint under the High Point Patents. Because the interrogatory subparts are limited to specific contentions, the inclusion of the language "all facts and circumstances" does make this subpart overly broad or responding to it unduly burdensome. Likewise, subpart (f)'s language, seeking "all facts and circumstances" supporting or relating to Sprint's contention regarding whether there was exhaustion of any of the High Point Patents with respect to the use of Motorola Equipment in a Sprint CDMA Cellular Network, does not make the subpart overly broad and unduly burdensome.
Sprint also argues that subpart (c), which asks it to detail the facts and circumstances supporting "any contention" that there was a license granted to Sprint under the patents-in-suit, is an overbroad blanket request that seeks a narrative explanation of Sprint's defenses. The Court does not read the interrogatory as broadly as Sprint. The interrogatory appears limited to asking for the facts and circumstances supporting Sprint's contention, if it has one, that it was granted an implied license under the High Point Patents to use Motorola Equipment in Sprint's CDMA Cellular Network. Sprint's overly broad and unduly burdensome objections to Interrogatory No. 31 are overruled.
Sprint also objects that subpart (g) is vague and ambiguous, overly broad, and unduly burdensome. It requires that Sprint evaluate every single possible use for the Motorola Equipment in order to determine whether it can "only be used" or has "any use other than" use in the Sprint CDMA Network. It is vague and ambiguous as it sets no limits as to what types of alternatives uses can or should be considered. In addition, Sprint argues that it requests a determination of whether something "can be used" in a particular way or "whether Motorola's Equipment has any use other than that for use in a Sprint CDMA Cellular Network." Sprint's vague and ambiguous objection to subpart (g) is sustained. This interrogatory subpart is so poorly constructed and ambiguous that the Court cannot understand what specific information is being sought.
Under Fed. R. Civ. P. 37(a)(5)(C), if a motion to compel is granted in part and denied in part, the court may, after providing an opportunity to be heard, "apportion the reasonable expenses for the motion." Neither party has requested fees or expenses related to the motion. As the Court has already sanctioned Sprint under Fed. R. Civ. P. 26(g), the Court finds that further apportionment of reasonable expenses related to the motion are unnecessary.
VI. SUMMARY OF RULINGS
The Court finds that High Point met its obligation to make a reasonable effort to confer with Sprint prior to filing this motion, and that High Point's Fifth Interrogatory No. 31, subpart (g) should be counted as its fortieth interrogatory. The Court further deems all of Sprint's general objections to High Point's Fourth and Fifth Sets of Interrogatories as waived and Sprint is sanctioned $2,000 as a Rule 26(g) violation for asserting general objections not warranted by existing law and interposed for the improper purpose of causing unnecessary delay. As the Court stayed payment of sanctions on High Point's first Rule 26(g) violation, the Court will likewise stay payment of Sprint's sanctions. Payment of the sanctions is stayed pending completion of this case and further order of the Court. If there are no further violations of Rule 26(g) by Sprint during this litigation, this sanctions order will be vacated.
The Court makes the following rulings with respect to the specific objections reasserted by Sprint in response to High Point's motion to compel:
With regard to