United States District Court, S.D. West Virginia, Charleston Division
GEMINI INSURANCE COMPANY, Plaintiff and Counterclaim Defendant,
SIRNAIK, LLC., et al., Defendants and Counterclaim Plaintiffs, 1nd SIRNAIK, LLC, et al., Third-Party Plaintiffs,
USI INSURANCE SERVICES, LLC, and JOHN KEHOE, Third-Party Defendants.
L. TINSLEY, UNITED STATES MAGISTRATE JUDGE
remaining claims in this action stem from a third-party
complaint filed by Third-Party Plaintiffs Sirnaik, LLC; Green
Sustainable Solutions, LLC; Surnaik Holdings of WV, LLC;
Intercontinental Export Import, Inc.; Rajiv Naik; Upendra
Naik; and Dr. Saurabh Naik (collectively, “Third-Party
Plaintiffs”) against their insurance agent, John Kehoe
(“Kehoe”), and the company he represents, USI
Insurance Services, LLC (collectively, “Third-Party
Defendants”). (ECF No. 30.) Third-Party Plaintiffs
allege that Third-Party Defendants failed to procure an
insurance policy that would provide coverage in a series of
underlying lawsuits stemming from a warehouse fire at
Third-Party Plaintiffs' properties in Parkersburg, West
Virginia, in October 2017. (Id.)
this Court are Third-Party Defendants' motion to compel
(ECF No. 82), Third-Party Plaintiffs' motion to reopen
Kehoe's deposition (ECF No. 87), and Third-Party
Plaintiffs' motion to strike Third-Party Defendants'
response to their motion to reopen the deposition (ECF No.
91). For the reasons explained more fully herein, Third-Party
Defendants' motion to compel (ECF No. 82) is
GRANTED. Third-Party Plaintiffs' motion
to reopen Kehoe's deposition (ECF No. 87) is
GRANTED. Third-Party Plaintiffs' motion
to strike (ECF No. 91) is DENIED.
Third-Party Defendants' Motion to Compel (ECF No.
March 26, 2019, Third-Party Defendants served on Third-Party
Plaintiffs their First Set of Requests for Admission,
Interrogatories, and Requests for Production of Documents.
(ECF No. 55; see ECF No. 82-1.) Third-Party
Plaintiffs responded to these requests on May 3, 2019. (ECF
No. 65.) In their response, Third-Party Plaintiffs
represented that with respect to Requests for Production Nos.
12 and 13, they would produce “all relevant,
responsive, and non-privileged communications between
[Third-Party Plaintiffs] and ICA Risk Management Consultants
[(“ICA”)], if any.” (ECF No. 82-2 at
13-14.) However, Third-Party Defendants assert that
Third-Party Plaintiffs' corporate representative stated
that no search for those documents was performed. (ECF No. 83
at 3.) Third-Party Defendants thus seek to compel Third-Party
Plaintiffs to produce the documents responsive to Requests
for Production Nos. 12 and 13. (Id. at 4-5.)
Plaintiffs offer no substantive response to Third-Party
Defendants' motion; rather, they argue that the motion to
compel should be denied because Third-Party Defendants failed
to certify that they conferred with Third-Party Plaintiffs in
an effort to resolve the dispute prior to filing the motion
to compel. (ECF No. 85 at 1.) The obligation to confer and to
certify compliance with that obligation derives from Federal
Rule of Civil Procedure 37(a) and Rule 37.1(b) of this
District's Local Rules of Civil Procedure. See
Westfield Ins. Co. v. Carpenter Reclamation, Inc., 301
F.R.D. 235, 245 (S.D. W.Va. 2014). However, the parties'
failure to meet and confer or certify that they have done so
does not automatically result in the denial of a motion to
compel in this District. Fint v. Brayman Constr.
Corp., No. 5:17-cv-04043, 2018 WL 5116097, at *2 (S.D.
W.Va. Oct. 19, 2018) (“The failure of moving counsel to
take the additional step of making a telephone call or
scheduling a face-to-face conference will not prevent a
ruling on the motion to compel, but in most cases will
preclude an award of reasonable expenses.”);
Pinnacle Mining Co. v. Bluestone Coal Corp., No.
5:08-cv-00931, 2015 WL 2338638, at *3 (S.D. W.Va. May 13,
2015) (same); Westfield Ins. Co., 301 F.R.D. at 245
(same). Accordingly, the undersigned addresses the merits of
the motion to compel even though Third-Party Defendants did
not certify that they conferred with Third-Party Plaintiffs
prior to filing the motion.
discovery requests at issue, Requests for Production Nos. 12
and 13, request copies of communications between ICA and
Third-Party Plaintiffs as well as communications between ICA
and Third-Party Defendants. (ECF No. 82-2 at 13-14.)
Third-Party Defendants argue that the information “is
relevant . . . to [their] understanding of what coverage
Third-Party Plaintiffs sought and the conversations that were
had about the types of policies to be procured or not
procured.” (ECF No. 83 at 4.) Indeed, Third-Party
Plaintiffs' claims against Third-Party Defendants are
based on Third-Party Defendants' alleged failure to
procure insurance that provided coverage for potential
liability associated with Third-Party Plaintiffs'
operations. (ECF No. 30.) Information about the types of
coverage Third-Party Plaintiffs requested or were advised to
obtain is clearly relevant to those claims. As such,
Third-Party Defendants are entitled to that information.
Third-Party Defendants' motion to compel (ECF No. 82) is
GRANTED. However, their request for reasonable
expenses associated with making the motion is
DENIED for failure to certify compliance
with the meet and confer requirement. See Fed. R.
Civ. P. 37(a)(5)(A)(i).
Third-Party Plaintiffs' Motion to Reopen Deposition (ECF
18, 2019, Third-Party Plaintiffs conducted Kehoe's
deposition. (ECF No. 76; see ECF No. 88 at 3.) They
represent that five days after the deposition, on July 23,
2019, Third-Party Defendants produced a document that
“outlined the necessary terms of insurance that Mr.
Kehoe was asked to procure.” (ECF No. 88 at 3;
see ECF Nos. 87-2, 90-2.) The document, titled
“General Liability Insurance Policy Specifications,
” appears to have been prepared for Third-Party
Plaintiffs by ICA in 2014 or 2015. (ECF Nos. 87-2, 90-2.) The
policy specifications solicit proposals and quotes from
potential insurers. (Id.) Third-Party Plaintiffs
assert that the policy specifications are “material to
(if not dispositive of) [their] claim for negligent
procurement.” (ECF No. 88 at 3.) They seek to reopen
Kehoe's deposition in order to ask him questions about
the policy specifications. (Id. at 4.)
general, leave to reopen a deposition is appropriate if the
topics to be discussed fall within the scope of permissible
discovery and are neither duplicative nor obtained more
easily from another source or using another method.
Fed.R.Civ.P. 30(a)(2)(A)(ii); see Id. 26(b)(1),
26(b)(2); see also Patterson v. Yeager, No.
2:12-cv-01964, 2015 WL 6755311, at *3 (S.D. W.Va. Nov. 4,
2015). “Courts have reopened a deposition where a
witness was inhibited from providing full information at the
first deposition or where new information comes to light
triggering questions that the discovering party would not
have thought to ask at the first deposition.”
Patterson, 2015 WL 6755311, at *3 (internal
quotation marks omitted). Third-Party Plaintiffs assert,
“While Mr. Kehoe generally alluded to [the policy
specifications] in his deposition, [Third-Party Plaintiffs
were] unable to confirm the documents [sic] authenticity,
challenge the basis for his testimony, or question him
regarding his failure to follows [sic] the specifications in
the request for insurance.” (ECF No. 88 at 3.)
Third-Party Defendants respond that the policy specifications
were neither created by Kehoe nor discussed between him and
ICA or Third-Party Plaintiffs, that Kehoe answered questions
about the policy specifications at his deposition, and that
the policy specifications for Third-Party Plaintiffs for
their 2015 insurance policy are irrelevant to Third-Party
Plaintiffs' claims in this action, which relate to their
2017 insurance policy.
first to Third-Party Defendants' assertion that the
policy specifications from 2015 are not relevant to the 2017
policy, that argument is without merit. Kehoe testified at
his deposition that the 2015 policy was “renewed until
today” and had the same “scope of
coverage.” (ECF No. 90-3 at 7, 10.) If the 2017 policy
had terms identical to the policy procured in 2015 pursuant
to the policy specifications, it follows that the policy
specifications are relevant to the 2017 policy. Further,
Kehoe's testimony about the policy specifications was
limited to the “kind of general information” that
is included in a policy specifications document; he did not
answer questions about the policy specifications at issue
because he was not asked those questions. (See Id.
at 7.) But if the policy specifications had been produced
prior to the deposition, Third-Party Plaintiffs almost
certainly would have asked Kehoe questions about them.
Finally, the fact that Kehoe did not create the policy
specifications or discuss their contents in detail with ICA
or with Third-Party Plaintiffs does not diminish their
relevance, nor does the fact that Third-Party Plaintiffs do
not appear to have preserved a copy of the policy
specifications or provided it to their counsel. Kehoe stated
at his deposition that ICA contacted him about procuring
insurance for Third-Party Plaintiffs, and the quote was
derived from the policy specifications ICA prepared.
(Id. at 6, 8.) Further questioning related to the
policy specifications is thus appropriate. As such,
Third-Party Plaintiffs' motion to reopen Kehoe's
deposition (ECF No. 87) is GRANTED. The
reopened deposition is limited to questions about the policy
specifications and shall be conducted in a single session
lasting no more than three (3) hours absent other agreement
by the parties.
for the foregoing reasons, Third-Party Defendants' motion
to compel (ECF No. 82) is GRANTED.
Third-Party Plaintiffs must provide the requested information
within fourteen (14) days from the date of this Order.
Third-Party Defendants' request for reasonable expenses
associated with making the motion to compel is
DENIED. Third-Party Plaintiffs' motion
to reopen Kehoe's deposition (ECF No. 87) is
GRANTED. The reopened deposition is limited
to questions about the policy specifications and shall be
conducted in a single session lasting no more than three (3)
hours. Third-Party Plaintiffs' motion to strike (ECF No.
91) is DENIED.
Clerk of the Court is directed to transmit copies of this
Order to all counsel of ...