United States District Court, N.D. West Virginia
P. MAZZONE, UNITJED STATES MAGISTRATE JUDGE
pending before the Court is Plaintiffs' Motion  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  of Reference, filed August 20,
2019. Pursuant to the Order  Setting Deadlines and Oral
Argument/Evidentiary Hearing, Defendant filed a Response 
in opposition on August 27, 2019, and Plaintiffs filed their
Reply  on September 3, 2019. A hearing was held on
September 4, 2019.
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.
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.]
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. Discussions regarding a possible
Protective Order (with respect to certain documents) have
been ongoing; however, one has not been agreed to or
entered. 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).
OF THE PARTIES
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.
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.
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.
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.
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
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
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)).
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."
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).
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.
these rules in mind, the Court will now consider each issue
and item of discovery raised by Plaintiffs' Motion to
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)).
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.
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 ...