Advanced Hair Restoration LLC v. Bosley Inc

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] ADVANCED HAIR RESTORATION LLC, CASE NO. C23-1031-KKE [8] Plaintiff, ORDER ON JOINT DISCOVERY [9] v. STATEMENT [10] BOSLEY INC, et al., [11] Defendants. [12] This matter comes before the Court on the parties’ July 11, 2024, joint statement of [13] discovery dispute. Dkt. No. 76. Plaintiff Advanced Hair Restoration LLC (“AHR”) seeks leave [14] to file a motion to compel Defendant Bosley Inc. (“Bosley”) to respond to AHR’s first set of [15] interrogatories. Id. AHR argues Bosley failed to adequately answer the interrogatories by (1) [16] “refusing to answer Interrogatories Nos. 10–15, instead labeling AHR’s 15 interrogatories as 381 [17] interrogatories without explanation[;]” (2) improperly objecting based on relevance to [18] interrogatories 3, 5, 8–10; (3) answering interrogatories 1, 2, 6–9 based on an unreasonable [19] interpretation of “adopt”; and (4) objecting based on privilege to interrogatories 4, 5, 8, and 10. [20] Id. at 2–3. In response, Bosley disagrees with each of AHR’s positions but does agree to “amend [21] its answer[s] regarding any asserted marks at issue in the Second Amended Complaint.” Id. at 3. [22] As of the date of the court conference, July 30, 2024, Bosley had not amended the answers. See [23] Dkt. No. 79. [24] 1 This Order will address only the first area of dispute, namely, which of AHR’s 2 interrogatories include distinct subparts such that the interrogatory should be counted as more than 3 one under Federal Rule of Civil Procedure 33(a)(1). As for the areas of dispute not addressed by 4 this Order, the parties are instructed to meet and confer again and, if issues remain, either party 5 may file a discovery motion without again participating in the Court’s pre-filing conference 6 procedure. 7 Under Federal Rule of Civil Procedure 33 “a party may serve on any other party no more 8 than 25 written interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1). This 9 means that the court counts “discrete subparts” within an interrogatory as separate interrogatories 10 when determining whether a party has exceeded the 25-interrogatory limit. Id. “Although the 11 term ‘discrete subparts’ [in Rule 33] does not have a precise meaning, courts generally agree that 12 ‘interrogatory subparts are to be counted as one interrogatory ... if they are logically or factually 13 subsumed within and necessarily related to the primary question.’” Trevino v. ACB Am., Inc., 232 14 F.R.D. 612 , 614 (N.D. Cal. 2006) (quoting Safeco of Am. v. Rawstron, 181 F.R.D. 441, 445 (C.D. 15 Cal. 1998 )). For example, “a question asking about communications of a particular type should 16 be treated as a single interrogatory even though it requests that the time, place, persons present, 17 and contents be stated separately for each such communication.” Fed. R. Civ. P. 33(a)(1) advisory 18 committee note (1993 amendments). But “once a subpart of an interrogatory introduces a line of 19 inquiry that is separate and distinct from the inquiry made by the portion of the interrogatory that 20 precedes it, the subpart must be considered a separate interrogatory no matter how it is designated.” 21 Rabel v. Univ. of Wash. Med. Ctr., No. C23-0083JLR, 2024 WL 197370 , at *4 (W.D. Wash. Jan. 22 18, 2024) (quoting Willingham v. Ashcroft, 226 F.R.D. 57, 59 (D.D.C. 2005)). [1] Based on this guidance, the Court finds the interrogatories should be counted as follows.1 2 Interrogatory 1 asks Bosley to identify the person most familiar with five aspects of 3 Bosley’s use of the term ADVANCED HAIR TRANSPLANT: “advertising and promotion,” 4 “sales,” “gross receipts and profits from” sales, “the decision to adopt the phrase,” and “internet 5 search results.” Dkt. No. 76-1 at 5. These subparts include two distinct areas, finances and 6 marketing, and will count as two interrogatories. 7 Interrogatories 2 through 7 are single interrogatories. See Dkt. No. 76-1 at 7–16. It is not 8 a distinct question to ask Bosley to list the relevant individuals involved with the topic of each 9 interrogatory. 10 Interrogatory 8 asks about the “date and circumstances of Defendant first becoming aware 11 of Plaintiff’s use of” six phrases. Dkt. No. 76-1 at 18. Each phrase is its own inquiry, and this 12 interrogatory is appropriately counted as six interrogatories. 13 Like interrogatory 8, interrogatory 10 asks Bosley to “identify and describe any non14 privileged communications between Defendant and any third-party regarding Plaintiff” and six 15 phrases. Dkt. No. 76-1 at 21. Again, each phrase is its own inquiry, and this interrogatory is 16 appropriately counted as six interrogatories. 17 Interrogatory 12 asks for instances of confusion between ADVANCED HAIR or 18 ADVANCED HAIR RESTORATION and THE WORLD’S MOST EXPERIENCED HAIR 19 RESTORATION EXPERT and THE ART AND SCIENCE OF HAIR RESTORATION. Dkt. No. 20 76-1 at 24–25. Comparing each set of words is four inquiries, thus interrogatory 12 counts as four 21 interrogatories. [23] 24 1 The parties agree interrogatories 9 and 11 are each one interrogatory. Dkt. No. 76-1 at 20, 23. 1 This is twenty-six interrogatories, one more than allowed under Federal Rule of Civil 2 Procedure 33(a)(1). Accordingly, it is appropriate for Bosley to object to the last section of 3 interrogatory 12, the confusion between ADVANCED HAIR RESTORATION and THE ART 4 AND SCIENCE OF HAIR RESTORATION, and the remaining interrogatories. But Bosley 5 cannot object to interrogatories 10, 11, or the first three parts of 12, based on exceeding the limit 6 of interrogatories and must amend its answers to respond to these interrogatories. 7 While interrogatories 13 through 15 exceed the limits of Rule 33(a)(1) and Bosley need 8 not answer them at this time, in order to provide guidance to the parties in the hope of avoiding 9 future disputes, the Court will address the numerical objections to these interrogatories as well. 10 Interrogatory 13 asks Bosley to “identify and describe the facts supporting” each of 11 Bosley’s denials of AHR’s requests for admission. Dkt. No. 76-1 at 26. In response, Bosley 12 represents that it denied at least part of 19 of the RFAs. Id. Accordingly, the Court finds AHR’s 13 interrogatory 13 should count as 19 interrogatories. See Jovanovich v. Redden Marine Supply, 14 Inc., No. C10-924-RSM, 2011 WL 4459171 , at *3 (W.D. Wash. Sept. 26, 2011) (“Given that 15 interrogatories are numerically limited, whereas requests for admission are not, it would be 16 inequitable to allow a party to effectively use a combination of requests for admission and a single 17 interrogatory to obtain discovery information.”). 18 Interrogatory 14 asks Bosley to identify “each individual furnishing the information used 19 in the response” to each interrogatory, “each individual consulted in formulating the response” to 20 each interrogatory, and “[a]ll documents consulted, used, or reviewed” in answering each 21 interrogatory. Dkt. No. 76-1 at 33–34. While the Court does not agree with Bosley that this 22 interrogatory should be counted as nearly three hundred interrogatories (id. at 34), the Court does 23 find interrogatory 14 should be considered 13 separate interrogatories because identifying the [24] 1 requested information for each interrogatory is a discrete inquiry that is separate from the inquiry 2 for other interrogatories. 3 Lastly, interrogatory 15 asks Bosley to identify each potential fact witness and each expert 4 witness, and to identify each opinion the expert will testify on and the basis for each opinion. Dkt. 5 No. 76-1 at 67. The Court agrees with Bosley that this request asks for two distinct categories of 6 information: fact witnesses and expert witnesses and their opinions. Accordingly, interrogatory 7 15 should count as two interrogatories. 8 If Bosley has not already done so, Bosley is ordered to amend its answers to interrogatories 9 10, 11, and part of 12 based on this order by September 13, 2024. To the extent that Bosley has 10 not amended its answers based on the second amended complaint (Dkt. No. 69), as promised (Dkt. 11 No. 76 at 3), this amendment shall also include those changes. Upon this amendment, the parties 12 are instructed to meet and confer again regarding any outstanding disputes. As noted above, if 13 issues remain, either party may file a discovery motion on any of the outstanding discovery issues 14 without further use of the Court’s pre-filing conference procedure. 15 Dated this 16th day of August, 2024. [16] A [17] Kymberly K. Evanson 18 United States District Judge