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Old White Charities, Inc. v. Bankers Insurance, LLC

United States District Court, S.D. West Virginia, Beckley Division

May 14, 2018

OLD WHITE CHARITIES, INC., Plaintiff,
v.
BANKERS INSURANCE, LLC, Defendant/Third Party Plaintiff,
v.
ALL RISKS, LTD., Third Party Defendant.

          ORDER

          Omar J. Aboulhosn United States Magistrate Judge

         On May 10, 2018 came the parties, by counsel, all for a hearing on Plaintiff Old White Charities, Inc.' s (hereinafter "Old White") Motion to Compel (ECF No. 64) and Motion for Leave to Depose Melvin E. Tull. (ECF No. 109) Appearing for Old White were Michael Levine, Esq. and David Nelson, Esq., for Defendant Bankers Insurance, LLC (hereinafter "Bankers") were Joshua Johnson, Esq. and Fazal Shere, Esq., and for Third Party Defendant All Risks, Ltd. by telephone, Jeffrey Van Volkenburg, Esq. After hearing the arguments of counsel, the pleadings filed in support of same, and having reviewed the pertinent legal authorities, the Court GRANTS Plaintiffs Motion to Compel and Motion for Leave to Depose Melvin E. Tull for the reasons explained, infra:

         Preliminary Matters

         The undersigned held an informal in chambers conference concerning Plaintiffs Motion to Compel on April 26, 2018. (ECF No. 101) Afterwards, the parties were able to resolve many of the issues raised in the Motion to Compel, however, in compliance with this Court's Order (ECF No. 102), the parties advised the undersigned that four of Plaintiff s Requests for Admissions to Banker could not be resolved outside of Court, necessitating the hearing for these remaining discovery disputes.

         On May 8, 2018, Plaintiff filed its Motion for Leave to Depose Melvin E. Tull (ECF No. 109) While mindful that Bankers has had insufficient opportunity to file a formal response to this Motion before the hearing on May 10, 2018, the undersigned found that the arguments and Exhibits attached to Plaintiff s Motion caused the undersigned grave concern for the candor owed to this Court, and implicates the discovery disputes raised herein.

         Relevant Law

         Rule 36(a)(4) of the Federal Rules of Civil Procedure provides:

If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.
Rule 37(a)(3)(B) allows a requesting party to seek an order compelling appropriate responses when a party fails to provide an answer to interrogatories or requests for production. A response is inadequate under these Rules when a party generally objects to discovery without more; the party must show why the discovery request is improper. White v. Sam's E., Inc., No.

5:14-cv-26106, 2016 WL 205494, at *1 (S.D. W.Va. Jan. 15, 2016). Answers, responses, or document productions that are "evasive or incomplete" are treated as failures to answer or respond to discovery requests. See Fed.R.Civ.P. 37(a)(4). Finally, Rule 37 also provides:

If the motion to compel is granted - or if the disclosure or requested discovery is provided after the motion was filed - the court must, after giving the parties an opportunity to be heard, require the party whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorneys' fees.
Rule 37(c)(2) of the Federal Rules of Civil Procedure provides:
If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.

         Old White's Argument Supporting Motion to Compel

         As stated supra, the undersigned conducted an informal conference with the parties to review the issues concerning Bankers' responses to Old White's discovery requests. The parties were able to resolve many of these disputes after the conference, however, Old White notified the Court that despite having revised some of its responses, Old White contended that Bankers still failed to provide proper responses to four remaining Requests for Admissions:

REQUEST 9. Admit that Bankers knew, at the time it submitted the Application, that Old White was relying on Bankers to procure coverage that would apply if someone won the Hole in One Competition.
INITIAL RESPONSE: Bankers admits that it knew Old White was requesting a policy consistent with the terms of the Application and the Addendum.
REVISED RESPONSE: Bankers admits that Old White was relying on Bankers' assistance to procure coverage consistent with the terms of the Application and the Addendum, but denies the rest of this Request because it improperly asks Bankers to delve into Old White's subjective reliance and thought process, and it assumes that Old White requested coverage without conditions.

         Old White argues that under the aforementioned Rules, this is a defective answer: First, the Revised Response continues to evade the substance of the Request, which concerns Bankers' knowledge at a particular point in time - when it submitted the Application. Bankers' Revised Response says nothing about its own knowledge, nor is it clear from the Revised Response whether the Response is speaking to the time period specified in the Request, or some other point in time. Third, the Revised Response fails to admit or deny the facts stated and, instead, couches the admission in facts that are not part of the Request. For example, nowhere in Old White's Request is there any reference to the Application or its terms. Old White contends that during the conference, this Court pointed out and directed that if Bankers cannot ...


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