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Slampak v. Nationwide Insurance Company of America

United States District Court, N.D. West Virginia

September 16, 2019




         Currently pending before the Court is Plaintiffs' Motion [40] to Compel Adequate Answers and Responses to Plaintiffs' First Set of Interrogatories and Requests for Production, filed August 19, 2019. This Motion was referred to the undersigned by Order [41] of Reference, filed August 20, 2019. Pursuant to the Order [43] Setting Deadlines and Oral Argument/Evidentiary Hearing, Defendant filed a Response [44] in opposition on August 27, 2019, and Plaintiffs filed their Reply [48] on September 3, 2019. A hearing was held on September 4, 2019.

         Following the hearing, the parties requested additional time within which to discuss and possibly resolve the outstanding discovery issues. Given the volume of discovery and the complexity of the issues, and given the parties' ongoing discussions, the Court granted the parties' joint request for additional time to resolve these discovery issues, and gave the parties until 3:00 p.m. on Thursday, September 12, 2019. On that day, the parties filed additional briefs with the Court [ECF Nos. 53 and 54], advising the Court that they were unable to resolve any of the discovery issues. Accordingly, after considering the parties' briefs, the applicable law and the Court file, and after considering the arguments made during the hearing of September 4, 2019, the undersigned is prepared to issue a decision.



         This civil action arises out of a motor vehicle accident that occurred on August 28, 2013, and in which Plaintiff, Phillip Slampak was involved. Nationwide Insurance Company of America ("Defendant") was the insurance company for Mr. Slampak at the time of the accident. According to Plaintiffs' Complaint, Mr. Slampak possessed underinsured motorist coverage with Nationwide for $500, 000 per person and $500, 000 per accident. Mr. Slampak claims to have sustained injuries in excess of the underlying policy limits, which Mr. Slampak maintains triggered his underinsured coverage with Nationwide. While the matter of whether and to what extent Mr. Slampak was entitled to underinsured motorist benefits from Nationwide appears to have been settled, Mr. Slampak avers that Defendant improperly delayed settlement. As a result, Plaintiffs have brought the instant action against Defendant. [ECF No.1 and attachments.]

         Plaintiffs propounded their First Set of Interrogatories and Requests for Production of Documents to Nationwide on or about March 8, 2019. [ECF No. 15.] Defendant served its answers on or about April 10, 2019. [ECF No. 18.] Though the discovery answers were signed by Nationwide's attorney, a signed verification was not provided until approximately September 3, 2019.[1] Discussions regarding a possible Protective Order (with respect to certain documents) have been ongoing; however, one has not been agreed to or entered.[2] The parties disagree about when the alleged deficiencies in Defendant's answers was first discussed. However, all parties agree that the aforementioned discussion(s) and Plaintiffs' instant Motion to Compel were filed beyond the thirty (30) day, time limit provided in LR Civ P 37.02(b).



         A. Plaintiffs' Arguments

         Plaintiffs argue that Defendant's unverified answers and responses constitute a waiver of objections. Further, Plaintiffs argue that Defendant's general objections are invalid and indicative of Defendant's evasive and incomplete discovery disclosures. With respect to the disclosure of documents, Plaintiffs also argue that Defendant has failed to meet its burden of proving that a Protective Order is necessary and appropriate in this case. The documents requested and sought are relevant to the claims in this case and should be produced. Plaintiffs also request an in camera review of the 75 pages of documents which have been redacted in the claim file.[3]

         Plaintiffs have set forth specific arguments with respect to each interrogatory and request for production of documents that Plaintiffs maintain was inappropriately and/or incompletely answered. The Court will address those arguments below.

         B. Defendant's Arguments

         Defendant argues that Plaintiffs' Motion to Compel is untimely and therefore should be denied. Defendant cites numerous cases which Defendant contends stand for the proposition that untimely motions to compel should not be considered by the Court. See ECF No. 53 at pgs. 3-5. Defendant further argues that the lack of verification should not constitute a waiver of its objections. In support of this position, Defendant contends that the Court should look to Ballard v. Union Carbide Corp., No. 2:11-cv-00366, 2012 WL 2089511, at *l-2 (S.D.W.Va. June 8, 2012), rather than Magistrate Judge (ret.) James Seibert's opinion in Tustin v. Motorists Mutual Insurance Company, No. 5:08-cv-111, 2009 WL 10675150 (N.D.W.Va. January 23, 2009), upon which Plaintiffs rely.

         Defendant contends that its objections are not just general objections but are specifically tailored to the discovery request for which they are responsive. Finally, Defendant argues that Plaintiffs' argument regarding the Protective Order is inapposite because no Motion for a Protective Order is pending and the parties had been working toward the entry of an agreed-upon Protective Order.



         Plaintiffs seek an Order compelling additional and more specific answers to interrogatories and requests for production of documents. As a result, the following rules are implicated by Plaintiffs' Motion:

         Fed. R. Civ. P. 26 provides in relevant part as follows: "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Importantly, "relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."

         Fed. R. Civ. P. 33 governs interrogatories and provides in relevant part as follows: "[e]ach interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable." Further, all objections "must be stated with specificity." Objections such as 'overly broad, burdensome, oppressive, and irrelevant' do not constitute specific objections within the meaning of the rule. Momah v. Albert Einstein Medical Center, 164 F.R.D. 412, 417 (E.D. Pa. 1996) (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)).

         Fed. R. Civ. P. 34 governs requests for production and responses thereto, and provides in relevant part as follows: "[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons." Further, "[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest."

         Parties who have been served with interrogatories and/or requests for production of documents have thirty (30) days from the date of service within which to respond. A shorter or longer time may be stipulated to under the Rules or ordered by the Court. See Fed. R. Civ. P. 33 and 34. Interrogatories served upon a corporate party must be answered "by an officer or agent, who must furnish the information available to the party....the person who makes the answers must sign them." Fed.R.Civ.P. 33(b).

         Motions to Compel responses to interrogatories and requests for production are governed by Fed.R.Civ.P. 37(a)(2)(B), which provides in relevant part that, if a party declines to answer an interrogatory or request for production, the serving party "may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request." The party opposing the motion to compel bears the burden of proving why the motion should not be granted. Rogers v. Tri-State Materials Corp., 51 F.R.D. 234, 247 (N.D.W.Va. 1970). Pursuant to LR Civ P 37.02(b) a motion to compel or other motion in aid of discovery is deemed waived if it is not filed within thirty (30) days after the discovery response or disclosure requirement sought was due.

         With these rules in mind, the Court will now consider each issue and item of discovery raised by Plaintiffs' Motion to Compel.



         A. Timeliness

         Plaintiffs' Interrogatories were served on or about March 8, 2019. Pursuant to LR Civ P 37.02(b), any Motion to Compel therefore should have been filed on or about May 7, 2007. The instant Motion to Compel was not filed until August 19, 2019. Clearly, pursuant to LR Civ P 37.02(b), this Motion is untimely. The Court must therefore consider whether Plaintiffs have demonstrated "excusable neglect" or whether "some action of the non-moving party" caused the failure to timely file the instant Motion. Id. In doing so, the Court has the discretion to weigh the excuse offered by the party failing to timely file the motion in order to avoid strict application of the Rule. Such discretion allows the Court to avoid overly technical applications of the rule. Taggart v. Damon Motor Coach, 5:05-cv-191, 2006 WL 2473395, at *5 (N.D.W.Va. Aug. 24, 2006) (citing Mordesovitch v. Westfield Ins. Co., 235 F.Supp.2d 512, 518 (S.D.W.Va. 2002)).

         During the hearing, Plaintiffs' attorney advised the Court that, in and around the time this Motion would have been due, he welcomed his third child to the family. Counsel has offered no other reason for counsel's failure to pursue a Motion to Compel earlier than two and one-half months after the motion was due to be filed. Notwithstanding, the Court is cognizant of the disruption that a newborn can cause to new and seasoned parents alike. The Court is further cognizant that said disruption sometimes lasts for an extended period of time. The Court is therefore satisfied that excusable neglect exists in this instance.

         In so finding, the Court notes Defendant's citation to numerous cases which Defendant contends demonstrate that "[c]ourts across the country routinely reject untimely discovery motions." ECF No. 53 at p. 4. The Court has thoroughly reviewed and considered each case cited by Defendant in support of this argument. The Court, however, is not persuaded by this argument because the ...

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