In Garrard v. Rust-Oleum Corp., No. 20 C 00612 (N.D. Ill. May 23, 2023), Illinois Magistrate Judge Jeffrey Cole analogizing discovery to “like watching paint dry”, ordered the plaintiffs to respond to defendant’s interrogatory requesting the date each photo was produced was taken and ordered that the plaintiffs would “have to issue appropriate interrogatories” to obtain more information about the defendant’s non-custodial and centralized sources of relevant ESI than was already provided.

Case Discussion

In this case filed against the defendant over claims that their wood finishing products are defective, Judge Cole began his order with this statement:

“There is a well-worn simile to describe something that is rather tedious and boring – ‘like watching paint dry.’ Discovery is often like that – and worse. Indeed, we have it on the best of authority that ‘protracted discovery, [is] the bane of modern litigation.’…So, imagine what discovery regarding paint drying must be like. That is along the lines of what we have here, and counsel in this case – about a dozen of them – have been arguing over it for about four months. To make things a bit more tedious, the disputes they have been incapable of resolving are, to varying degrees, over trivial, routine matters. Why counsel in this case seem to have decided to take a ‘no-prisoners’ stance…on these particular disputes is not clear. What is clear is that whatever the reason, it is not a justifiable or persuasive one. It should not be overlooked that counsels’ months of haggling have whittled down their conflicts, and they have filed a ‘Joint Submission Regarding Discovery Disputes’ and ‘Joint Responses.’ But fairly assessed, they are, in substance, dueling motions to compel.”

Judge Cole ruled on two conflicts. The first involved the defendant’s request for plaintiff to answer Interrogatory No. 11, which asked “[f]or each photograph Plaintiffs produced in this Action without metadata showing the date the photo was taken, … specify the date the photo was taken as accurately as possible.” The second dispute related to plaintiff’s request for the defendant to “disclose non-custodial and centralized sources of relevant ESI.”

Judge’s Ruling

Regarding the first dispute, Judge Cole stated: “It seems obvious that an undated photograph of something filed by a party in a federal lawsuit is not going to have evidentiary value standing alone. Yet, plaintiffs refuse to provide dates relating to the photograph on the ground that the defendant exceeded Fed.R.Civ.P. 33(a)(1)’s limit of ‘no more than 25 written interrogatories, including all discrete subparts.’ Plaintiffs say that there are 32 ‘discrete subparts’ in Interrogatories Nos. 1-5, and 8, for a total of 36 interrogatories before Interrogatory No. 11. Defendant insists that there are no ‘discrete subparts,’ and Interrogatory No. 11 is just that: the eleventh interrogatory.”

Continuing, he said: “While counting supposedly “discrete subparts” might be significant to all too many counsel,…for courts it’s often – staying with the theme – ‘like watching paint dry.’ That’s because ‘[t]here is no bright-line test on how to count parts of interrogatories.’…One can cite all the cases about counsel needing judges to count ‘discrete subparts’ one wants, but in the end, it’s just another discretionary call, reversible for abuse only.”

As a result, he ordered: “As it happens, in this case, both plaintiffs and defendant’s lawyers have counted ‘wrong.’ I count two subparts to Interrogatory No. 1…; three subparts to Interrogatory No. 2…; three subparts to Interrogatory No. 3…; three subparts to Interrogatory No. 4…; two subparts to Interrogatory No. 5…; two subparts to Interrogatory No. 8… So, throwing in Interrogatories Nos. 6, 7, 9, and 10, that makes Interrogatory No. 11 the twentieth interrogatory. Another court might see it differently; but no matter. Twenty is less than twenty-five. Plaintiff is ordered to answer Interrogatory No. 11 within five days of the date of this Order.”

Regarding the second dispute, Judge Cole stated: “The problem is that the defendant’s counsel say they have repeatedly met and conferred regarding non-custodial locations of documents…So, from the court’s perspective, the defendants have identified document harvesting locations by departments – research and development, testing, quality assurance, marketing, labeling, consumer complaints, warranty claims, and sales – and have claimed to have gathered and searched for a staggering number of documents. That – again, from the court’s perspective – should have satisfied a plaintiff who that claims to want a list of non-custodial document sources…It is unclear what more the plaintiff could want.”

He also stated: “No one, including the defendant, wants the wood on their deck rotting. And while a case presenting the issues that this one does is significant, especially to the parties, the reality is that this is not a wrongful death or wrongful conviction case, or a medical malpractice case in which the doctor’s blunder has caused the death of a patient. Nor is it a case involving a claimed violation of the Constitution. This is a case about a product that purportedly did not work the way it was supposed to when it was purportedly used the way it was supposed to be used. The product isn’t one that caused death or disfigurement or disability. What is involved is a $35 can of paint; or, in each case, several $35 cans of paint…The fact that plaintiff’s counsel wants to certify a large class of allegedly cheated paint buyers doesn’t change what the case is actually about.”

As a result, Judge Cole ruled: “With that in mind, we won’t be having any mini-trials to test whether counsel are telling the truth about document locations throughout the discovery process, if that’s what plaintiffs are angling for. If plaintiffs want more information on those document locations than defendant’s attorneys swear they have already provided, the plaintiffs will have to issue appropriate interrogatories. As counting interrogatories has become so central in this case, parties should not be getting any uncounted inquiries. If the plaintiffs think there is something nefarious going on about the defendants’ location claims and document searches, they will have make a proper showing for ‘discovery on discovery.’”

So, what do you think? Is discovery really “like watching paint dry”? Please share any comments you might have or if you’d like to know more about a particular topic.

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