United States District Court, S.D. West Virginia, Beckley Division
J. Aboulhosn United States Magistrate Judge
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:
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.
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.
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
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.
White's Argument Supporting Motion to Compel
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
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.
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