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Hubbell v. O.W. Hubbell & Sons

March 28, 2008


The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge


In this action, Plaintiff alleges that Defendants infringed his copyright by distributing DVDs and CDs containing the copyrighted work, publishing the copyrighted work on a website and distributing hard copies of the work. (Dkt. No. 1 at ¶¶ 17, 24.) Before the Court is Plaintiff's motion for an Order compelling Defendants "to provide full, truthful, complete, and guileless answers to this pro se Plaintiff's Interrogatory Numbers 1 thru (sic) 10." (Dkt. No. 39.) Defendants have opposed the motion. (Dkt. No. 43.) For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.


Parties may obtain discovery of any matter, not privileged, that is relevant to the "claim or defense of any party." Fed. R. Civ. P. 26(b)(1). A party resisting discovery has the burden of showing "specifically how, despite the broad and liberal construction afforded the federal discovery rules, each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive, by submitting affidavits or offering evidence revealing the nature of the burden." Compagnie Francaise d' Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y.1984) (quoting Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 [E.D.Pa.1980] )(internal citations omitted). In order to satisfy its burden, the resisting party must do more than " 'simply inton[e the] familiar litany' that the interrogatories are burdensome, oppressive or overly broad" and must "clarify and explain its objections and [ ] provide support therefor." Id. at 42-43.


In their response to the motion Defendants have referenced the need for a confidentiality order. The Court agrees and directs Defendants to provide Plaintiff with a proposed confidentiality order within one week of their receipt of this Order. The parties then are to confer in good faith in an attempt to stipulate to a confidentiality order. Within three weeks of their receipt of this Order Defendants are to advise the Court in writing as to the status of the good faith efforts to stipulate. There need not be any compliance with the discovery that is ordered below until ten days after a confidentiality order has been signed and filed by the Court.

In addition, Defendants may, if they choose, comply with the discovery that is ordered below by producing business records, pursuant to Rule 33(d) of the Federal Rules of Civil Procedure.


A. Verifications

Plaintiff's first seven interrogatories are directed to "Defendant Hubbell Holding Corp.'s Corporate Secretary". The eighth and ninth interrogatories are directed to "Defendant Hubbell Holding Corp.'s Chief Financial Officer". The tenth interrogatory is directed to "Defendants".

All of the responses were verified by Daniel Merritt Hubbell, President of O.W. Hubbell & Sons, Inc. and Hubbell Holding Corp. Plaintiff agues that this was inappropriate. (Dkt. No. 39, Pt. 2.)

An interrogatory may be directed to "any other party." Fed. R. Civ. P. 33(a). When the party is a corporation, "any officer or agent" may respond. Id. Here, Plaintiff could not properly direct interrogatories to the "corporate secretary" and the "chief financial officer" because they are not parties.

Defendants properly construed all of the interrogatories as having been served on Hubbell Holding Corporation and selected the corporation's president to respond. Although Plaintiff may have preferred to receive responses from the corporate secretary and the chief financial officer, the party serving interrogatories on a corporation has no right to select the particular officer or agent to respond to the interrogatories. See Holland v. Minneapolis-Honeywell Regulator Co., 28 F.R.D. 595 (D.Colo.1961); Wirtz v. I.C. Harris & Co., 36 F.R.D. 116, 117 (E.D.Mich.1964) (Parties serving interrogatories may not select particular person and direct that interrogatories be answered by such person where such person is not a party); Law v. NCAA, 167 F.R.D. 464, 475-76 (D.Kan.1996) (Under FRCP 33(a), although interrogatories must be served on party, party served has discretion in selecting officer or agent who is to answer them and verify answers; it is clear that whoever answers interrogatories, answers must include whatever information is available to party.) Accordingly, the verification is appropriate, and the motion to compel a different verification is DENIED.

B. Interrogatory No. 1

The first interrogatory asks for the corporate secretary's full name, title in Hubbell Holding Corporation, titles in other business organizations, the locations and telephone number of each office, the date the respondent assumed the title, the names and tenure dates of the respondent's predecessors, and the fictitious names of Hubbell Holding Corporation and any other business organization in which the respondent holds a title.

Defendants objected on four grounds: (1) the time period of the interrogatory should be limited to the "time period prior to Plaintiff's revocation of his verbal authority given to Defendant(s) to use his intellectual property, which did not take place prior to July 31, 2006"; (2) the interrogatory "seeks production of highly confidential and/or propietary business information without a protective Order or Confidentiality Agreement; (3) the interrogatory seeks information that is not relevant and is not reasonably calculated to lead to discovery of admissible evidence; and (4) the interrogatory is overly broad, unduly burdensome and oppressive.

Despite their objections, Defendants answered that O.W. Hubbell & Sons, Inc. is the owner of Cable Guide Railing Corp. and has done business under the name Hubbell Galvanizing. Defendants further answered that the officers of O.W. Hubbell & Sons, Inc. are Dan Hubbell (CEO and President), Jonathan Hubbell (Vice-President), and Ann Hubbell (Secretary).

In opposition to the motion to compel, Defendants state that "Plaintiff asked for the full name and title of the officers of O.W. Hubbell & Sons, Inc. The answers were given and signed by Defendants' counsel and verified by Daniel Merritt Hubbell. Defendants do not understand ...

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