Porwitzky et al v. Romkowsky et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
THOMAS PORWITZKY and
MATTHEW JONES,
Plaintiffs,
v. Case No. 1:25-cv-00280-MIS-LF
ANDREW ROMKOWSKY,
in his individual and official capacities,
MARISA J. MARTINEZ,
in her individual and official capacities,
JONATHAN BARELA,
in his individual and official capacities,
CARLOS GIDINO,
in his individual and official capacities, and
CITY OF ALBUQUERQUE,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT CITY OF ALBUQUERQUE’S MOTION TO COMPEL
This matter comes before the Court on defendant City of Albuquerque’s (the “City”)
Motion to Compel, filed August 26, 2025. Doc. 40. Plaintiffs stated that they opposed the
motion, id. at 1, but they did not respond to the motion, and the deadline to do so has passed.
Having reviewed the City’s filing and the applicable law, the Court grants in part and denies in
part the motion to compel as described below.
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BACKGROUND1
On November 20, 2025, plaintiffs Thomas Porwitzky and Matthew Jones filed their
amended complaint. Doc. 43. Appearing pro se, they allege violations of the First, Fourth, and
Fourteenth Amendments to the United States Constitution by defendants Andrew Romkowsky,
Marisa J. Martinez, Jonathan Barela, and Carlos Gidino in their individual and official capacities,
as well as against the City. Id. at 1. Some of their allegations arise from a September 2024 visit
from Officers Barela and Gidino to Mr. Porwitzky’s property, which may have been to
investigate a disturbance, conduct a welfare check, or confirm whether Mr. Jones resided there.
Id. at 5–9. Others arise because, in January 2025, Mr. Porwitzky and Mr. Jones visited “the APD
building” with the intention of arranging a meeting with the chief of police to ask questions
about the oath of office, if any, that police officers swear; they had sought public records on this
matter previously. Id. at 11. Plaintiffs claim that after various inquiries and an “intense
discussion,” they were told that they “would be trespassed from the APD building if they did not
immediately leave the building.” Id. at 13. They state that they relocated to City Hall, where they
were then approached by defendants Martinez and Romkowsky, among others, who “stated that
Plaintiffs were now creating a disturbance in another government building and that they were
being trespassed from this building[] as well.” Id. at 13–14. They “were issued a 90-day trespass
from the APD publicly owned building at 400 Roma Avenue in Albuquerque, New Mexico,”
after which they exited the building. Id.
1 Plaintiffs filed their original complaint on March 18, 2025, but the Court permitted them to file
an amended complaint in November 2025. Because the First Amended Complaint is the
operative complaint—even though it was filed after the City filed its Motion to Compel—the
Court provides the allegations in the First Amended Complaint as background.
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The complaint contains causes of action for 1) Fourth Amendment violations against
Officers Barela and Gidino for an unreasonable search of Mr. Porwitzky’s property; 2) First
Amendment violations against Defendants Romkowsky and Martinez for the defendants’ alleged
retaliation against the plaintiffs’ efforts to seek public records; 3) a First Amendment claim
against the City for “permitt[ing] or otherwise ratif[ying the] practice of permitting its employees
to withhold records and retaliate against those that persist in their attempts”; and 4) a Fourteenth
Amendment due process claim against the City because the city “provides no procedures or
opportunity for Plaintiffs to challenge the validity of the Criminal Trespass Warnings they were
given.” Id. at 15–18.
DISCUSSION
The City served plaintiffs with certain discovery requests to which the plaintiffs have
objected or which they failed to supplement when asked. The Court will address each in turn.
Interrogatory No. 1
Interrogatory No. 1 states, “State your full name, address, Social Security Number,
marital status, date of birth and place of birth, and all other names by which you have ever been
known.” Doc. 40-1 at 2; Doc. 40-3 at 2. Both plaintiffs objected to providing their social security
numbers, dates of birth, and places of birth on the grounds that these matters were not relevant
and they believed the City sought this information for an improper purpose. Doc. 40-1 at 2; Doc.
40-3 at 2. While they did not object to the request for other names by which they have been
known, neither plaintiff included this information in his answer. Doc. 40-1 at 2; Doc. 40-3 at 2.
Basic identifying information, including sensitive information such as an individual’s
social security number, generally is appropriate subject matter for discovery. Jones v. J.C.
Penney’s Dep’t Stores, Inc., 228 F.R.D. 190, 197 n.13 (W.D.N.Y. 2005) (“As a matter of
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relevancy . . . prevailing caselaw supports the propriety of Ms. Snyder’s question seeking
Plaintiff’s social security number.” (collecting cases)). Certainly, this information generally is
private in one’s personal life, but by initiating a lawsuit, a plaintiff creates a situation in which
disclosure of personal information becomes necessary for the defendant to litigate fairly. See
Gonzales v. Goodyear Tire & Rubber Co., No. 6:05-cv-00941-BB-LFG, 2006 WL 8444095, at
*5 (D.N.M. July 28, 2006) (“A plaintiff may not assert a claim for damages and then seek to
prevent the other side from obtaining information relevant to the claim. . . . In this case,
Claimant’s privacy interest in their Social Security number and driver’s license information does
not outweigh Goodyear’s right to defend itself. Indeed, in the absence of claims, there would be
no need and no right to obtain this information.”).
Identifying information such as a social security number, a date of birth, and a place of
birth allows a defendant to research a plaintiff’s criminal and civil litigation history, matters
which reasonably may bear on a plaintiff’s credibility before a jury in the event of a trial. For
example, a plaintiff with a long history of criminal convictions for fraud and perjury may be a
less “believable” witness in the eyes of a jury than one without a history of dishonesty. The City
has clarified that it seeks only the last four digits of the plaintiffs’ social security numbers, Doc.
40-5 at 1; Doc. 40-6 at 1, which lightens the burden on plaintiffs’ privacy while still requesting
relevant information. Additionally, investigating the credibility of potential witnesses is a proper
purpose; plaintiffs have provided no evidence of any improper motives the City may have in
seeking this information. See Atlas Res., Inc. v. Liberty Mut. Ins. Co., No. 1:09-cv-01113-WJ-
KBM, 2010 WL 11552903, at *1 (“A ‘proper’ objection is one that is tailored to the
interrogatory, not a conclusory objection such as ‘overbroad’ or ‘unduly burdensome,’ which
neglects to say why the interrogatory is subject to that objection.”) (Puglisi, Mag. J.) (magistrate
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judge’s holdings adopted, Atlas Res., Inc. v. Liberty Mut. Ins. Co., No. 1:09-cv-01113-WJ-KBM,
2010 WL 11552917 (D.N.M. June 24, 2010)).
For the above reasons, the Court orders Mr. Porwitzky and Mr. Jones to supplement their
interrogatory responses with the last four digits of their social security numbers, their full dates
and places of birth, and all other names by which they have ever been known (or, if they have not
been known by any other names, a statement of that fact).2
Interrogatory No. 2 (Mr. Jones only)
Interrogatory No. 2 states, “Please list your current place of employment, the dates of
your employment, rate of pay, name of supervisor over the past 10 years.” Doc. 40-2 at 2. Mr.
Jones objected to this interrogatory as irrelevant and stated that the City sought this information
for an improper purpose. Id. at 3. “Notwithstanding these objections,” he adds that he “has not
been employed since prior to the date of the alleged incidents specific to this action.” Id. The
City seeks to compel Mr. Jones to disclose this information because “[t]his information is
relevant to the Plaintiff’s current claims, his credibility and his claim for damages.” Doc. 40 at 3.
Requests for a plaintiff’s employment history are common in cases where lost wages or
lost employment are at issue. See Quarrie v. Wells, No. 2:17-cv-00350-MV-GBW, 2020 WL
1514798, at *5 (D.N.M. Mar. 30, 2020) (holding that “Plaintiff’s employment history has clear
relevance to his claims” for loss of employment and loss of income); but see Uroza v. Salt Lake
Cnty., No. 2:11-cv-00713-DAK-EJF, 2014 WL 670236, at *5 (D. Utah Feb. 20, 2014) (in a case
2 If plaintiffs have concerns about the handling of this private information, they may confer with
defendants about a stipulated protective order from the Court (or, if the parties cannot agree on
the scope of a protected order after a good faith effort to confer, plaintiffs may file an opposed
motion seeking a protective order). If an order is entered designating certain information
confidential, the parties still must provide this information in discovery; the protective order
merely designates certain information as confidential to prevent it from being disclosed or used
outside of the case. Confidential information is not the same as privileged information.
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where plaintiff did not seek employment-related damages, employment history lacks relevance).
Here, however, plaintiffs ask only for “compensatory damages,” Doc. 43 at 19, without reference
to any employment- or wage-related losses. The Court therefore has no reason to believe that Mr.
Jones’ employment history is relevant to his current claims or his claim for damages. It also is
unclear how his employment history might shed light on his credibility; if a link between the two
exists, the City has not discussed it.
Accordingly, the Court denies the City’s motion with respect to Interrogatory No. 2.
Interrogatory No. 3
Interrogatory No. 3 asks detailed questions about the plaintiffs’ litigation history,
“including divorce, bankruptcy collection, disciplinary proceeding, workers’ compensation,
disability or foreclosure proceedings.” Doc. 40-1 at 3; Doc. 40-3 at 3. Both plaintiffs objected to
the interrogatory as “overly broad, unduly burdensome, and unlikely to lead to any relevant facts
and irrelevant to any claims of Plaintiff or defenses of the opposing party.” Doc. 40-1 at 4; Doc.
40-3 at 4. Case law varies with respect to this question. Compare Smith v. Hillshire Brands, No.
13-cv-2605-CM, 2014 WL 2804188, at *3 (D. Kan. June 20, 2014) (“The court agrees with
defendant that information about plaintiff’s litigation history is relevant because it could lead to
the discovery of admissible evidence regarding plaintiff’s credibility and claim for damages.”)
with Firestone v. Hawker Beechcraft Int’l Serv. Co., No. 10-cv-01404-JWL, 2011 WL 13233153,
at *6 (D. Kan. Sept. 28, 2011) (“Defendants have not explained how evidence of Plaintiff’s
general litigation history would be probative of any issue in this case,” rendering interrogatory
irrelevant).
In this instance, the Court will allow the interrogatory. Discovery is a broad stage of the
litigation, and “[i]nformation within [the] scope of discovery need not be admissible in evidence
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to be discoverable.” FED. R. CIV. P. 26(b)(1). The plaintiffs’ litigation history may reveal
evidence about their history of truthfulness, as well as their preexisting medical conditions or
injuries in a workers’ compensation or disability case (which are pertinent to damages because of
Mr. Porwitzky’s allegations of stress-related treatment through the Veterans’ Administration, see
Doc. 43 at 15).
Accordingly, the Court grants the City’s motion to compel with respect to Interrogatory
No. 3.
Interrogatory No. 4
Interrogatory No. 4 states,
Identify every individual with whom you have communicated about the subject
matter of this lawsuit, including the form or type of such communication (i.e.,
orally or in writing), the date of such communication, a summary of the
communication, the purpose for the communication, and whether or not it was
recorded. Also, please provide the address and telephone number of each person
listed. Please indicate which of these individuals are likely to testify at trial.
Doc. 40-1 at 4; Doc. 40-3 at 4. Plaintiffs objected to the interrogatory as a “compound,
conjunctive, or disconjunctive [sic] question” as well as “overbroad and unduly burdensome.”
Doc. 40-1 at 4–5; Doc. 40-3 at 4–5. Notwithstanding their objections, each listed his co-plaintiff
and Mr. Porwitzky’s wife, Wendy Porwitzky. Doc. 40-1 at 5; Doc. 40-3 at 5. The City seeks “the
date of the communication, a summary of the communication and the purpose of the
communication.” Doc. 40 at 4. However, it does not discuss plaintiffs’ objections except to state
that they are “baseless.” Doc. 40-5 at 1, Doc. 40 at 4.
As an initial matter, “the party filing the motion to compel has the initial burden of
addressing each boilerplate objection in its motion to compel.” Sonnino v. Univ. of Kan. Hosp.
Auth., 221 F.R.D. 661, 671 n.37 (D. Kan. 2004). It is only after the moving party bears this initial
burden that the objecting party bears the burden of justifying its objections. Id. Furthermore, in
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this instance the Court finds that it would be unduly burdensome for the co-plaintiffs to list every
time they spoke to each other about the case they are litigating together, summarize each
communication, and state the purpose of each communication. Similarly, communications
between Mr. Porwitzky and his wife on the matter of his lawsuit, and between Mr. Jones and
Mrs. Porwitzky given that Mr. Jones is residing in their home, likely are voluminous and also
would be unduly burdensome to produce. The contact information that plaintiffs have provided is
sufficient for defendants to contact Mrs. Porwitzky if they have questions for her. Requiring
plaintiffs to list every relevant communication with Mrs. Porwitzky would be a significant
burden and is unlikely to lead to the discovery of additional relevant evidence beyond the
information that plaintiffs’ answer already provides.
For the above reasons, the Court denies the City’s motion to compel with respect to
Interrogatory No. 4.
Interrogatory No. 5
Interrogatory No. 5 states,
Please list all damages you claim to have suffered as a result of the Defendants’
alleged conduct. With regard to each, please list all evidence in your possession
which supports your claim of damages, the manner in which you calculated these
alleged damages, and all efforts you have made to mitigate your damages in this
matter.
Doc. 40-1 at 5; Doc. 40-3 at 5. Plaintiffs object to the interrogatory as unduly burdensome and
oppressive because it would involve restating matters already discussed in the complaint; they
refer to the complaint and state that the damages therein “are estimates as the actual damages
calculation must be performed by the Jury.” Doc. 40-1 at 6; Doc. 40-3 at 6.
A clear statement of damages, as well as the underlying calculations and evidence
surrounding those damages, is critical for the City to prepare a full defense. In the event of a
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trial, the final damages calculation will be performed by the jury, but the City must understand
exactly what damages the plaintiffs are claiming and why in order to present evidence and
argument to the jury about whether those damages are appropriate. The plaintiffs cannot simply
claim in their complaint that they are entitled to “general and compensatory damages according
to federal law” and punitive damages of $500,000.00 but refuse to provide any information or
context regarding what the compensatory damages might be or how the $500,000.00 in punitive
damages was determined. See Doc. 43 at 19; see also Gonzales, 2006 WL 8444095, at *5 (“A
party may not assert a claim for damages and then seek to prevent the other side from obtaining
information relevant to the claim, thereby depriving the opposing party of an opportunity to
evaluate the claim for settlement or alternatively, to be prepared to meet the proofs at trial.
Plaintiffs who voluntarily come into court and seek economic damages must be prepared to
prove their economic loss[.]”).
For the above reasons, the Court grants the City’s motion to compel regarding
Interrogatory No. 5.
Interrogatory No. 6 (Mr. Jones only)
Interrogatory No. 6 states, “Please provide a list of your addresses over the last 10 years.”
Doc. 40-1 at 6. Mr. Jones objected to the interrogatory as “beyond the scope of discovery” and
“[i]rrelevant to any claims or defenses.” Id.
The Court disagrees. Addresses may be pertinent generally when damages are at issue.
See Quarrie, 2020 WL 1514798, at *3–4 (finding a request for ten years of addresses relevant to
financial status and therefore damages, and not unduly burdensome or disproportionate to the
needs of the case). And in this case specifically, the complaint contains allegations not only of
police inquiries about where Mr. Jones lived, Doc. 43 at 7–8, and an unlawful search at Mr.
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Porwitzky’s home related to Mr. Jones, id. at 15–16, but also of “APD police cruisers driving
slowly by [Plaintiffs’] home on numerous occasions causing Plaintiffs to fear for their safety,” id.
at 15. Mr. Jones’ addresses over the last ten years are a minimally burdensome inquiry and relate
reasonably to the claims he brings.
Therefore, the Court grants the City’s motion to compel with respect to Interrogatory No.
6.
Interrogatory No. 7
Interrogatory No. 7 asks each plaintiff, if his claims include emotional distress, to provide
a complete list of healthcare providers over the last ten years along with their addresses, phone
numbers, the reason for seeing that provider, and whether the provider treated him for damages
related to the defendants’ alleged actions. Doc. 40-1 at 7; Doc. 40-3 at 7. Mr. Jones objects to the
interrogatory as “[u]nduly burdensome and overly broad and exceeds the limits of the claim of
this Plaintiff.” Doc. 40-1 at 7. Mr. Porwitzky states the same objection, but adds, “Plaintiff is a
veteran and receives treatment via the Veteran’s Administration and sought treatment in relation
to the 1/3/25 incident.” Doc. 40-3 at 7.
The District of New Mexico’s Local Rules require disclosures in cases “in which the
physical or mental medical condition of a party is at issue.” D.N.M.LR-Civ. 26.3(d). Under those
circumstances, “the party whose condition is an issue must make a good faith effort to produce”
information including the names, addresses, and phone numbers of any healthcare providers who
have treated the party within the five years “preceding the date of the occurrence set forth in the
pleadings and continuing through the current date,” all medical records from those healthcare
providers that are already in the party’s possession, and a signed authorization for each
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healthcare provider to release medical records, which the party must make available for
inspection and copying within fourteen days after receiving them. Id.
Interrogatory No. 7 includes a ten-year scope rather than the five-year scope dictated in
D.N.M.LR-Civ. 26.3(d)(1). The City has made no argument regarding why a ten-year lookback
period would be necessary in this case. Accordingly, the Court will grant the motion to compel in
part regarding this interrogatory: plaintiffs are ordered to respond to the interrogatory only for
the five years preceding the 1/3/25 incident (that is, beginning 1/3/2020) and continuing through
to the present. If any plaintiff is not making a claim for emotional distress, he may satisfy this
interrogatory by stating that fact in his supplemental interrogatory response.
Interrogatory No. 8
Interrogatory No. 8 asks for the plaintiffs’ intended witness list, including witnesses’
names, addresses, telephone numbers, and a summary of their proposed testimony. Doc. 40-1 at
7; Doc. 40-3 at 7. The plaintiffs do not object but instead refer to their proposed witness list as
stated in the parties’ joint status report, Doc. 26. Doc. 40-1 at 7; Doc. 40-3 at 7. This proposed
witness list does not include a summary of each witness’s proposed testimony. See Doc. 26 at 3–
4.
Because plaintiffs have made no objection regarding the inclusion of this information,
and because it is facially relevant (that is, likely to lead to the discovery of admissible evidence),
the Court grants the City’s motion to compel regarding Interrogatory No. 8. Plaintiffs are ordered
to supplement their interrogatory with a summary of each witness’s proposed testimony.
Interrogatory No. 9
Interrogatory No. 9 requests that plaintiffs “list each and every instance you claim you
were damaged by the Defendants,” including the date, the nature of the alleged damage, contact
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information for the individual engaging in the alleged damage, a description of the action itself,
and contact information for any witnesses. Doc. 40-1 at 8; Doc. 40-3 at 8. Plaintiffs object to the
request as unduly burdensome and oppressive and instead refer the City to the joint status report,
the complaint, and the exhibits to the complaint. Doc. 40-1 at 8; Doc. 40-3 at 8.
The Court disagrees that the interrogatory is unduly burdensome and oppressive.
Plaintiffs are being asked to clarify the details of their claims and to provide contact information
for alleged perpetrators and witnesses. If some of this information already appears in the
complaint or joint status report, that makes plaintiffs’ burden lighter, not heavier, because they
already have gathered the information and can reproduce it easily in their interrogatory
responses. Descriptions of the alleged actions beyond what appears in the complaint, if
necessary, are not difficult or burdensome to produce, especially in a case involving only two
major interactions3 with the defendants.
Accordingly, the Court grants the City’s motion to compel with regard to Interrogatory
No. 9.
Interrogatory No. 10
Interrogatory No. 10 states, “Please list each and every time you have accused a third-
party of violating your rights. With regard to each instance, please list the date, the name, address
and telephone number of the third-party you accused of violating your rights, the conduct you
claim violated your rights and the results of your complaint.” Doc. 40-1 at 8; Doc. 40-3 at 8. The
plaintiffs object to the discovery request as “unduly burdensome, oppressive, and vague,”
3 The Court interprets the language of this question (instances in which the plaintiffs “claim” to
have been damaged) as related to any instances supporting the claims at issue in this litigation.
The Court instructs plaintiffs to answer this interrogatory based on this understanding of the
question.
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“unrelated to the events and parties at issue in this case,” and “overly broad and encompasses
casual conversations that are too numerous to recall.” Doc. 40-1 at 9; Doc. 40-3 at 9. The City
argues that the requested information “is relevant to assess the Plaintiffs’ claims and alleged
damages.” Doc. 40 at 5.
A party’s litigation history “is generally discoverable.” D’Agostino v. Domino’s Pizza,
Inc., 2020 WL 13614903, at *2 (D.N.J. Sept. 28, 2020); see also Judy v. Pingue, 2009 WL
2146209, at *3 (S.D. Ohio July 14, 2009) (“[W]here a party’s litigation history is relevant to the
motivations for filing suit, it may be relevant to the determination of the claim.”). A plaintiff’s
litigation history may be discoverable if a defendant seeks to undermine the plaintiff’s claim by
arguing that the plaintiff “has a litigious history.” Bibbs v. New River Community & Technical
College, 285 F.R.D. 382, 393–94 (S.D.W.V. 2012); see also Deakins v. Pack, Case No. 1:20-cv-
01396, 2012 WL 242859, at *17 (S.D.W.V. Jan. 25, 2012) (“The Court further finds that
Interrogatory Number 3 requests relevant information. Defendants explain the information is
relevant to their defense that Plaintiffs have a litigious history. Information concerning prior
lawsuits filed by or against Plaintiffs is potentially admissible or could lead to admissible
evidence.”). Further, a party’s litigation history is relevant because it may reveal instances of
perjury or false statements, which are significant for impeachment purposes.
That said, the Court agrees with plaintiffs that the interrogatory is overbroad as written.
As written, the interrogatory would include even informal, spoken complaints for which no
records may exist, or minor disputes irrelevant to the present dispute, such as those related to
customer service. Therefore, the Court will limit the interrogatory’s scope only to written
complaints (for example, complaint emails or cease-and-desist letters) pertaining to the plaintiffs’
constitutional rights.
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For the above reasons, the Court grants in part and denies in part the City’s motion to
compel regarding Interrogatory No. 10.
Interrogatory No. 11
Interrogatory No. 11 asks whether the plaintiff is claiming damages for emotional distress
or psychological injuries; if yes, it asks for information about the plaintiff’s physicians and
mental health care providers. Doc. 40-1 at 9; Doc. 40-3 at 9. The plaintiffs refer to their
responses to Interrogatory No. 7. Doc. 40-1 at 9; Doc. 40-3 at 9.
This interrogatory is different from Interrogatory No. 7; it requests more detail regarding
the visit history, treatment plans, prognosis, and medications prescribed by any providers.
Therefore, referring to Interrogatory No. 7 is insufficient as a response. The plaintiffs do not raise
any objection to the information requested; they merely fail to provide it.
For the above reasons, the Court grants the City’s motion to compel with regard to
Interrogatory No. 11. If a plaintiff is not claiming damages of the type listed in Interrogatory No.
11, he may say so as a complete answer to the interrogatory. If he is claiming these damages, he
must provide the requested information.
Interrogatory No. 12
Interrogatory No. 12 asks about the plaintiffs’ criminal histories. Doc. 40-1 at 10; Doc.
40-3 at 10. Plaintiffs object that the interrogatory is “compound and unduly burdensome,” that
the information is publicly accessible to the defendants, and that the subject of the interrogatory
is irrelevant. Doc. 40-1 at 10; Doc. 40-3 at 10.
The fact that information is publicly accessible to the party issuing the interrogatory is
not a sufficient reason to refuse to answer the interrogatory. Nat’l Academy of Recording Arts &
Sciences, Inc. v. On Point Events, LP, 256 F.R.D. 678, 682 (C.D. Cal. 2009) (citing cases); see
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also Horton v. Tex. Federation for Children Pac, Inc., No. 3:22-cv-02736-D, 2024 WL 68572, at
*5–6 (N.D. Tex. Jan. 5, 2024) (“[Plaintiff] cannot resist answering an interrogatory simply
because it seeks public information.”). Further, the plaintiffs’ criminal history is relevant for
impeachment purposes in conducting settlement evaluations and at trial. For example, a plaintiff
with a long history of criminal convictions for fraud and perjury may be a less “believable”
witness in the eyes of a jury than one without a history of dishonesty. The plaintiffs’ criminal
history also may be relevant because the case involves disputes regarding plaintiffs’ interactions
with law enforcement.
“Compound” interrogatories matter only if, by counting the separate parts of an
interrogatory separately, a party exceeds the permissible number of interrogatories. Here, it
appears that the City has issued eighteen interrogatories and is permitted to issue twenty-five.
See Doc. 40-1; Doc. 40-3; Doc. 32 at 1 (permitting twenty-five interrogatories by each party to
any other party). Therefore, whether the interrogatory is compound does not bear on whether it
must be answered.
Finally, the Court finds that the interrogatory is not unduly burdensome. Plaintiffs are
aware of their own criminal histories, if any, and providing basic information about any offenses
such as relevant dates and case numbers normally does not require extensive research. Plaintiffs
have not mentioned any reason why their criminal histories would be difficult to obtain; in fact,
they note only that any such records would be public. Doc. 40-1 at 10; Doc. 40-3 at 10.
Accordingly, the Court grants the City’s motion to compel as pertaining to Interrogatory
No. 12.
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Interrogatory No. 13
Interrogatory No. 13 requests information regarding any photographs or audio or video
recordings of the events alleged in the complaint, or, in the alternative, an attached copy of that
media. Doc. 40-1 at 10–11; Doc. 40-3 at 10–11. Plaintiffs object to the interrogatory as “overly
broad, unduly burdensome, and compound” and refers to the video attached to the complaint.
Doc. 40-1 at 11; Doc. 40-3 at 11.
The interrogatory is not overly broad. It asks if plaintiffs know of any photographs or
recordings of the relevant incidents and, if they do, to provide a limited number of basic facts
about the media, the person who took it, and the person who currently possesses it. The scope of
the interrogatory is tailored directly to the claims and damages at issue. The complaint states,
“Jones has been an avid supporter of recording video encounters with public officials, including
peace officers, while in the performance of their official duties and has a YouTube channel[.]”
Doc. 43 at 4. This renders it reasonable of the City to ask whether plaintiffs have, or know of,
recordings of the events in this case, which involve encounters with public officials and peace
officers.
Further, the interrogatory is not unduly burdensome. If plaintiffs took such photographs
or recordings, it is easy to state their own names and addresses or attach the media to their
interrogatory response. If plaintiffs know of anyone else’s photographs or recordings, they must
share what they know; if they do not know of anyone else’s photographs or recordings, they need
only say so.
As discussed above, whether an interrogatory is compound relates only to whether the
number of permissible interrogatories has been exceeded. The City propounded eighteen
interrogatories out of an available twenty-five, and plaintiffs do not argue that the compound
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interrogatories include enough subcomponents to count as seven additional interrogatories on the
list.
Accordingly, the Court grants the City’s motion to compel regarding Interrogatory No.
13.
Interrogatory No. 14
Interrogatory No. 14 asks for information about all sources of plaintiffs’ income over the
last five years. Doc. 40-1 at 11; Doc. 40-3 at 11. Plaintiffs object that this information is
irrelevant. Doc. 40-1 at 11; Doc. 40-3 at 11. The City argues that this information relates to
plaintiffs’ claim of damages. Doc. 40 at 6.
Income information is not automatically discoverable; it must be relevant to the claims,
defenses, or damages at issue. See White v. City of Grand Rapids, No. 1:19-cv-00877, 2020 WL
13750048, at *2 (W.D. Mich. Oct. 1, 2020); Continental Coal, Inc. v. Cunningham, No. 06-cv-
02122-KHV, 2007 WL 4241848, at *3 (D. Kan. Nov. 28, 2007). Here, plaintiffs seek
compensatory damages. Doc. 43 at 19. But the complaint contains no allegations that plaintiffs’
income was affected by the events giving rise to this litigation. That is, the complaint does not
allege that the compensatory damages are related to a reduction in income. Based on the
allegations in the complaint, the compensatory damages may be related to the cost of medical or
mental health care. As a result, plaintiffs’ income is not relevant to the question of damages.
Therefore, the Court denies the City’s motion to compel regarding Interrogatory No. 14.
Request for Production No. 1
Request for Production No. 1 seeks all “statements, correspondence, memoranda, notes
or other documents” related to the allegations in the complaint and alleged damages. Doc. 40-2
at 2; Doc. 40-4 at 2. Plaintiffs respond that all relevant documentation is attached to the
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complaint. Doc. 40-2 at 2; Doc. 40-4 at 2. However, as the City notes, no records of Mr.
Porwitzky’s treatment at the Veterans’ Administration hospital are attached to the complaint.
Doc. 40 at 6. As discussed above, the plaintiffs may be claiming emotional distress or may seek
compensatory damages related to medical care. Accordingly, the Court orders Mr. Porwitzky
(and, if these documents are in his possession, Mr. Jones) to provide all relevant documentation
related to the allegations in the complaint or damages, specifically including the VA treatment
records for the visit mentioned in the complaint.
Request for Production No. 3 (Mr. Porwitzky only)
Request for Production No. 3 requests all documents referenced or relied upon in
plaintiffs’ interrogatory responses. Doc. 40-4 at 2. Mr. Porwitzky again refers to the attachments
to the complaint without supplying additional attachments or information. Id. Mr. Porwitzky’s
interrogatory responses included reference to treatment at the Veterans’ Administration. Doc. 40-
3 at 7. Mr. Porwitzky did not supply records of that treatment in response to Request for
Production No. 3 or in the attachments to the complaint. Doc. 40-4 at 2; see generally Doc. 43.
The Court orders Mr. Porwitzky to provide all records of his treatment at the Veterans’
Administration in relation to the January 3, 2025, incident.
Request for Production No. 6 (Mr. Porwitzky only)
Interrogatory No. 6 requests all medical and similar records pertaining to conditions
resulting from the defendants’ alleged actions. Doc. 40-4 at 3. Mr. Porwitzky responded by
requesting an additional sixty days to obtain any such records. Id. at 4. Although the date of the
request for production is not included, more than sixty days have elapsed since the filing of the
motion to compel. See Doc. 40 (filed August 26, 2025). Accordingly, the Court orders Mr.
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Porwitzky to supplement his response to Request for Production No. 6 with all requested
information.
Request for Production No. 7
Request for Production No. 7 requests that the plaintiffs sign medical releases so the City
may obtain the plaintiffs’ medical and mental health records. Doc. 40-2 at 3; Doc. 40-4 at 3. The
plaintiffs object “on the grounds that these medical release forms are being requested without
restriction and will exceed the scope of this matter.” Doc. 40-2 at 3; Doc. 40-4 at 3. They argue
that the information is requested for an improper purpose and request an additional sixty days to
obtain any relevant records. Doc. 40-2 at 3; Doc. 40-4 at 3.
Mr. Porwitzky has brought his health into the controversy by discussing his medical
treatment related to the January 3, 2025, incident. See Doc. 43 at 15. Therefore, signing a
medical release for all healthcare providers in the last five years preceding the date of the
occurrence in the pleadings and continuing through the current date is required under D.N.M.LR-
26.3(d)(3). The Court orders Mr. Porwitzky to do so4 or to withdraw all claims and requests for
damages based on his medical or mental health.
If a component of the plaintiffs’ request for damages includes Mr. Jones’ medical or
mental health, the Court orders Mr. Jones to sign the form required by D.N.M.LR-Civ. 26.3(d). If
damages related to Mr. Jones’ medical and mental health are not a component of the plaintiffs’
requested damages, Mr. Jones is ordered to state this in response to Request for Production No. 7
and is not obligated to sign a medical release.
4 The attachments to the motion to compel do not include a copy of the form enclosed with the
City’s requests for production. The Court’s order specifically applies to the form required by the
local rules.
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Request for Production No. 8
Request for Production No. 8 seeks “audio or video recordings, notes or other documents
made during or as a result of any conversations you had with the Defendant or its agents or
employees concerning the Plaintiffs’ claims.” Doc. 40-2 at 3; Doc. 40-4 at 3. Plaintiffs refer to
Request for Production No. 1, which itself refers to the attachments to the complaint. Doc. 40-2
at 2–3; Doc. 40-4 at 2–3.
Recordings attached to the original complaint, which were lodged with the Clerk’s
Office, include a video of what appears to be plaintiffs’ interaction with law enforcement at Civic
Plaza in which they were issued a trespass citation for another property as well as an edited video
including text commentary and body camera footage from two officers. Doc. 1, Exhibit # 2,
Thumb Drive A (lodged with Clerk’s Office). The plaintiffs’ Second Notice of Lodging, filed
May 2, 2025, contains a thumb drive with what appear to be the same videos. Doc. 19. Two
copies of the Second Notice of Lodging, with two different thumb drives containing identical
files, also are on file with the Clerk’s Office.
If the recordings filed with the Clerk’s Office are the only items meeting the description
of Request for Production 8, plaintiffs may say so as their response to this request for production.
If plaintiffs are in possession of other recordings, notes, or documents meeting the description of
Request for Production 8, they are ordered to provide those items to the City.
Request for Production No. 9
Request for Production No. 9 seeks “photographs, films, charts, diagrams, and or video
tapes depicting any of the matters alleged or described in the Complaint,” including injuries or
damages. Doc. 40-2 at 3; Doc. 40-4 at 3. Plaintiffs refer to Request for Production No. 1, which
itself refers to the attachments to the complaint. Doc. 40-2 at 2–3; Doc. 40-4 at 2–3.
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Recordings attached to the original complaint, which were lodged with the Clerk’s
Office, include a video of what appears to be plaintiffs’ interaction with law enforcement at Civic
Plaza in which they were issued a trespass citation for another property as well as an edited video
including text commentary and body camera footage from two officers. Doc. 1, Exhibit # 2,
Thumb Drive A (lodged with Clerk’s Office). The plaintiffs’ Second Notice of Lodging, filed
May 2, 2025, contains a thumb drive with what appear to be the same videos. Doc. 19. Two
copies of the Second Notice of Lodging, with two different thumb drives containing identical
files, also are on file with the Clerk’s Office.
If the recordings filed with the Clerk’s Office are the only items meeting the description
of Request for Production 9, plaintiffs may say so as their response to this request for production.
If plaintiffs are in possession of other recordings, notes, or documents meeting the description of
Request for Production 9, they are ordered to provide those items to the City.
Request for Production No. 11
Request for Production No. 11 seeks “[c]opies of all pleadings or administrative
documents from any other criminal proceedings” or other lawsuits or actions in which plaintiffs
were involved. Doc. 40-2 at 4; Doc. 40-4 at 4. Plaintiffs objected to the request as “overly broad,
unduly burdensome,” and irrelevant. Doc. 40-2 at 4; Doc. 40-4 at 4. As discussed above, the
plaintiffs’ criminal history is relevant for impeachment purposes. For example, a plaintiff with a
long history of criminal convictions for fraud and perjury may be a less “believable” witness in
the eyes of a jury than one without a history of dishonesty. The plaintiffs’ criminal history also
may be relevant because the case involves disputes regarding plaintiffs’ interactions with law
enforcement. Nor is the plaintiffs’ criminal history unduly burdensome. Plaintiffs are aware of
their own criminal histories, if any, and providing basic information about those offenses such as
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relevant dates and case numbers normally does not require extensive research. Plaintiffs have not
mentioned any reason why their criminal histories would be difficult to obtain; in fact, they note
only that any such records would be public. Doc. 40-1 at 10; Doc. 40-3 at 10.
As for the non-criminal component of this request for production, as discussed above, a
party’s litigation history “is generally discoverable.” D’Agostino, 2020 WL 13614903, at *2; see
also Judy, 2009 WL 2146209, at *3. For example, a plaintiff’s litigation history may be
discoverable if a defendant seeks to undermine the plaintiff’s claim by arguing that the plaintiff
“has a litigious history.” Bibbs, 285 F.R.D. at 393–94; see also Deakins, 2012 WL 242859, at
*17. Previous civil litigation also may include information about perjury or false statements,
which would be relevant to impeachment. The request for only the pleadings and administrative
documents—not every single filing in every single case—limits the scope appropriately to
prevent this interrogatory from becoming unduly burdensome or overbroad.
Accordingly, the Court orders plaintiffs to comply with Request for Production No. 11.
Request for Production No. 12
Request for Production 12 seeks “any and all of [plaintiffs’] social media posts over the
past three years.” Doc. 40-2 at 4; Doc. 40-4 at 4. Plaintiffs object to this inquiry as “overly broad,
unduly burdensome,” and irrelevant. Doc. 40-2 at 4; Doc. 40-4 at 4. Notwithstanding their
objections, they state that they have provided their YouTube channels in the complaint. Doc. 40-
2 at 4; Doc. 40-4 at 4.
Although social media generally is discoverable, multiple courts have found requests for
all social media posts to be overbroad or unlikely to lead to the discovery of relevant
information. See Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401, 406 (D. Wyo. 2017); Hardy v.
N.J. Manufacturers Ins. Co., No. 22-cv-00153-SDD-RLB, 2022 WL 15446280, at *4–5 (M.D.
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La. Oct. 26, 2022). Rather, requests for social media posts, like any other discovery, must relate
to a party’s claims or defenses. The City states that “the Defendants are entitled to see all posts
related to them, third parties and which relate to the Plaintiffs’ claim of damages.” Doc. 40 at 7.
The Court agrees that defendants are entitled to discovery of social media posts related to them,
the claims at issue, and any damages plaintiffs assert they have suffered. Accordingly, the Court
will tailor this request for production as follows:
Please produce all social media posts from January 1, 2024, to the present, which
mention the government or public officials of the City of Albuquerque, any of the defendants in
this case, the Albuquerque Police Department or its officers, and/or the events or damages at
issue in this case.
Plaintiffs are ordered to comply with the Court’s amended version of Request for
Production No. 12.
Request for Production No. 13
Request for Production No. 13 seeks “[c]opies of all electronic communication between
you and Basil Zangare from January 1, 2024, to present.” Doc. 40-2 at 4; Doc. 40-4 at 4.
Plaintiffs object, arguing that the request is “overly broad and unduly burdensome and
irrelevant.” Doc. 40-2 at 4; Doc. 40-4 at 4. Each plaintiff adds, “Notwithstanding, Plaintiff is
acquainted with this person, but this individual is neither a witness, has no firsthand information
regarding this matter, nor is he a party.” Doc. 40-2 at 5; Doc. 40-4 at 5. In its motion, the City
simply states that the “information requested is relevant and discoverable,” but does not explain
why the information is relevant. Because the Court sees no obvious relevance, the Court denies
the City’s motion to compel with respect to Request for Production No. 13.
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Request for Production No. 14
Request for Production No. 14 seeks copies of all electronic communication between the
plaintiffs from January 1, 2024, to the present. Doc. 40-2 at 5; Doc. 40-4 at 5. Plaintiffs object on
the grounds that the request “is overly broad and unduly burdensome and irrelevant.” Doc. 40-2
at 5; Doc. 40-4 at 5.
Federal Rule of Civil Procedure 26(b)(1) allows discovery of “any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” No
privilege attaches to communications between co-plaintiffs in the absence of an attorney. See
People ex rel. Madigan v. Ill. High Sch. Ass’n, No. 12-cv-03758, 2014 WL 517969, at *2 (N.D.
Ill. Feb. 10, 2014) (common legal interest doctrine extends underlying attorney-client privilege
or work product protections to communications involving a third party who shares a common
legal interest with the client, but communications must have been privileged before the common
interest arose for common legal interest doctrine to apply); DeFazio v. Hollister, Inc., No. CIV S-
04-1358 WBS GGH, 2008 WL 4952481, at *1–2 (E.D. Cal. Nov. 18, 2018) (“[T]he court finds
that the common interest privilege does not extend to communications between co-plaintiffs
where counsel is not present, or at the very least, where the specific conversation[] of the co-
parties at issue was not expressly directed by counsel.”); Schachar v. Am. Academy of
Ophthalmology, Inc., 106 F.R.D. 187, 193 (N.D. Ill. 1985) (“Again, the court knows of no
privilege attending communications between co-plaintiffs in a civil action unless such actions
were part of a joint communication with an attorney.”).
Communications between the plaintiffs also are relevant to the claims or defenses at issue
in this case. Relevance is broad: it includes information that “has a significant and demonstrable
bearing on” any party’s claim or defense. See Doe v. Doe 2, No. 1:20-cv-01041-SCY-JHR, 2023
WL 6381379, at *3 (D.N.M. Sept. 30, 2023); see also FED. R. EVID. 401 (relevant evidence is
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that which “has any tendency to make a fact [of consequence in determining the action] more or
less probable than it would be without the evidence”). The allegations in this case involve
trespass citations for actions that both plaintiffs took together and Fourth Amendment concerns
regarding a search of a house where (possibly) both plaintiffs were living. Communications
between the individuals present during these interactions are likely to shed light on the details of
the interactions and any damages that may have occurred. Additionally, the scope of time is
limited, and plaintiffs have given the Court no reason to believe that producing the electronic
communications between the two of them during the last two years would be unduly
burdensome.
However, not all communications between the plaintiffs are relevant and proportional to
the needs of the case. Interrogatory responses suggest that the plaintiffs live together; they may
have communicated via text message, for example, about ordinary and irrelevant matters such as
grocery purchases or weekend social plans. Accordingly, the Court will limit the scope of this
interrogatory as follows:
Please provide copies of all electronic communication with your co-plaintiff from
January 1, 2024, to the present, that pertains to the government or public officials of the City of
Albuquerque, any of the defendants in this case, the Albuquerque Police Department or its
officers, and/or the events or damages at issue in this case.
Plaintiffs are ordered to respond to the Court’s amended version of Request for
Production No. 14. If either plaintiff seeks damages for emotional distress, he also must include
in his response any electronic communications with his co-plaintiff that reference his mood or
mental state (whether emotionally distressed or otherwise).
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Request for Production No. 15 (Mr. Jones only)
Request for Production No. 15 seeks “[c]opies of all your posts or videos concerning any
of the Defendants from January 1, 2024, to present.” Doc. 40-2 at 5. Mr. Jones responds, “Refer
to Plaintiffs’ response to Defendants’ RFP 1 and RFP 9.” Id. These responses, in turn, refer the
City to the complaint and its attachments. Id. at 2–3.
Recordings attached to the original complaint, which were lodged with the Clerk’s
Office, include a video of what appears to be plaintiffs’ interaction with law enforcement at Civic
Plaza in which they were issued a trespass citation for another property as well as an edited video
including text commentary and body camera footage from two officers. Doc. 1, Exhibit # 2,
Thumb Drive A (lodged with Clerk’s Office). The plaintiffs’ Second Notice of Lodging, filed
May 2, 2025, contains a thumb drive with what appear to be the same videos. Doc. 19. Two
copies of the Second Notice of Lodging, with two different thumb drives containing identical
files, also are on file with the Clerk’s Office.
If the recordings filed with the Clerk’s Office are the only items meeting the description
of Request for Production 9, Mr. Jones may say so as his response to this request for production.
If Mr. Jones is in possession of other posts or videos meeting the description of Request for
Production 15, he is ordered to provide those items to the City.5
Request for Production No. 16
Request for Production No. 16 seeks “[c]opies of all of your electronic communication
with any third party concerning the Defendants from January 1, 2024, to present.” Doc. 40-2 at
5 As a point of clarification, the Court notes that photos or videos “concerning” the City of
Albuquerque as a defendant would not include every single photo or video taken within
Albuquerque’s city limits. Rather, media “concerning” the City of Albuquerque in this context
includes photos or videos depicting governmental functions or public employees of the City of
Albuquerque.
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5; Doc. 40-4 at 5. Plaintiffs object to this request as “overly broad, unduly burdensome,” and
irrelevant. Doc. 40-2 at 5; Doc. 40-4 at 5.
As discussed above, relevance is broad. As is true of discussions between the co-
plaintiffs, discussions between the plaintiffs and third parties concerning the defendants are
likely to provide information about the claims or damages in this case. Additionally, the scope of
time is limited, and plaintiffs have given the Court no reason to believe that they have engaged in
so many electronic communications during the past two years that producing these
communications would be unduly burdensome.
Accordingly, the Court grants the City’s motion to compel with respect to Request for
Production No. 16.6
CONCLUSION
The Court grants in part and denies in part the City’s motion to compel (Doc. 40). The
full requirements appear in the body of this Memorandum Opinion and Order, but in summary,
they are as follows.
As to the interrogatories, the Court grants the City’s motion to compel with regard to
Interrogatories No. 1, 3, 5, 6, 7 (in part), 8, 9, 10 (in part), 11, 12, and 13. The Court denies the
City’s motion to compel with regard to Interrogatories No. 2, 4, and 14.
As to the requests for production, the Court grants the City’s motion to compel with
regard to Requests for Production No. 1, 3, 6, 7, 8, 9, 11, 12 (in part), 14 (in part), 15, and 16.
The Court denies the City’s motion to compel with regard to Request for Production No. 13.
6 In the interest of clarity, the Court adds that the contents of privileged communications (e.g.,
communications that plaintiffs had with an attorney with whom they consulted but did not
become clients) need not be disclosed. If the plaintiffs have any responsive information that they
believe is privileged, they are to follow the procedure outlined in Federal Rule of Civil Procedure
26(b)(5).
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Plaintiffs must provide their supplemental responses to the City by March 25, 2026.
It is so ordered.
THE PARTIES ARE NOTIFIED that pursuant to Local Rule 73.1(a), a magistrate judge is
assigned to this case “to preside over all non-dispositive pre-trial matters in accordance
with FED. R. CIV. P. 72(a).” D.N.M.LR-Civ. 73.1(a). “A party may serve and file objections
to [a magistrate judge’s order on a non-dispositive pre-trial matter] within 14 days after
being served with a copy.” FED. R. CIV. P. 72(a). The party’s objections must be both
timely and specific to preserve an issue for review by the district court or appellate court.
United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). If objections
are timely filed, the district judge must consider the objections, but will only set aside those
parts of the magistrate judge’s order which are “clearly erroneous” or “contrary to law.”
FED. R. CIV. P. 72(a). If objections are not timely filed, the firm waiver rule applies. See
Sinclair Wyoming Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 781–83 (10th Cir. 2021)
(“the firm waiver rule applies when a party fails to object to a magistrate judge’s non-
dispositive ruling under Rule 72(a)”). “Under the firm waiver rule, a party who fails to
make a timely objection to the magistrate judge’s ruling waives appellate review of both the
factual and legal questions.” Id. at 781 n.23 (citations and alteration omitted); see also FED.
R. CIV. P. 72(a) (“A party may not assign as error a defect in the order not timely objected
to.”).
____________________________________
LAURA FASHING
UNITED STATES MAGISTRATE JUDGE
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