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The Sanitary Board of City of Charleston v. Colonial Surety Co.

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

October 2, 2019

THE SANITARY BOARD OF THE CITY OF CHARLESTON, WEST VIRGINIA, Plaintiff,
v.
COLONIAL SURETY COMPANY, et al., Defendants.

          ORDER

          DWANE L. TINSLEY UNITED STATES MAGISTRATE JUDGE.

         Before this Court are the motion to compel (ECF No. 56) and supplemental motion to compel (ECF No. 83) filed by Fourth-Party Defendant Burgess & Niple, Inc. (“B&N”). B&N seeks to compel Fourth-Party Plaintiffs Tri-State Pipeline, Inc. and Eric D. Taylor (collectively, “Tri-State”) to respond to a series of requests for admission, interrogatories, and requests for production it served upon Tri-State on February 15, 2019. (ECF Nos. 56-1, 56.2.) Tri-State timely responded to the requests for admission on March 21, 2019 (ECF No. 48), but it did not respond to the other discovery requests until March 29, 2019 (ECF No. 53).

         A. Requests for Admission

         1. Requests Nos. 8 & 9

         These requests ask Tri-State to admit that it wrote a letter to B&N dated February 26, 2018, and provided a “Project Claims” document to B&N on that date. (ECF No. 56-1 at 4-5.) Tri-State admitted that the letter was written and the project claims were submitted, but on February 23, 2018. (ECF No. 56-3 at 5.) Due to the discrepancy with the date, B&N requested that Tri-State produce its copy of the letter at issue. (ECF No. 56 at 4.) B&N represents that Tri-State did so on May 6, 2019. (ECF No. 64 at 3.) Accordingly, B&N's motion to compel is DENIED AS MOOT with respect to these requests.

         2. Requests Nos. 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 67-69, 71, 77, 79, 81, 83, 85, 87, 89, 91, 93, 95, 97, 99, 101, 103, 105, 107, & 109

         These requests in large part ask Tri-State to admit that it submitted various notices of claims as part of the letter mentioned in Requests Nos. 8 and 9. (ECF No. 56-1 at 5- 21.) Tri-State agreed to supplement its responses “in an ongoing effort to address B&N's discovery requests fully and in good faith.” (ECF No. 61 at 4.) Accordingly, to the extent it has not already done so, Tri-State is ORDERED to supplement its responses to these requests. B&N's motion to compel is GRANTED with respect to these requests.

         B. Interrogatories

         1. Interrogatory No. 2

         This interrogatory requests that Tri-State both identify individuals with knowledge of the facts alleged in the fourth-party complaint in this case and summarize their knowledge. (ECF No. 56-2 at 4.) Although Tri-State supplied names of individuals, it refused to give summaries of their knowledge because it had not yet interviewed them and because some of them were employed by other parties to this action. (ECF No. 61 at 4.)

         This is a fairly standard interrogatory that is often propounded early in the discovery process and seeks relevant, discoverable information. See, e.g., Beckman v. T.K. Stanley, Inc., No. 1:11-cv-133, 2012 WL 1085803, at *1, *7 (N.D. W.Va. Mar. 30, 2012) (ordering party to respond to similar request for list of witnesses and “[t]he substance of the facts known by each said witness”); Kelly v. FedEx Ground Package Sys., Inc., No. 3:10-cv-01265, 2011 WL 1584764, at *4 (S.D. W.Va. Apr. 26, 2011) (ordering party to respond to interrogatory requesting “the identity of any person who has knowledge of the alleged incident . . . as well as the substance of the knowledge”). Further, at this point in the discovery process, Tri-State is likely equipped to respond fully to the interrogatory. Tri-State is ORDERED to do so, and B&N's motion to compel is GRANTED with respect to this interrogatory.

         2. Interrogatory No. 13

         This interrogatory asks Tri-State if it has previously been involved in projects “governed by the EJCDC General Conditions” and to list those projects. (ECF No. 56-2 at 7.) Tri-State objected to the interrogatory as unduly burdensome, oppressive, and irrelevant. (ECF No. 56-5 at 10.) However, Tri-State's objections were untimely served on B&N and are boilerplate and unsubstantiated. Fed.R.Civ.P. 33(b)(4) (“The grounds for objecting to an interrogatory must be stated with specificity.”); see Richardson v. Ford Motor Co., No. 3:13-cv-06529, 2014 WL 6471499, at *2 (S.D. W.Va. Nov. 18, 2014) (“Conclusory and unsubstantiated allegations are simply insufficient to support an objection based on grounds of annoyance, burdensomeness, oppression, or expense.”). As such, Tri-State's objections are waived. Fed.R.Civ.P. 33(b)(4) (“Any ground not stated in a timely objection is waived . . . .”); see Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., 246 F.R.D. 522, 528-29 (S.D. W.Va. 2007). More importantly, the information this interrogatory requests is relevant to B&N's defense to Tri-State's negligence claim against it that Tri-State “did not act in accordance with the EJCDC standards governing [the] contract.” (ECF No. 56 at 6.) Accordingly, Tri-State is ORDERED to respond to this interrogatory in full, and B&N's motion to compel is GRANTED with respect to this interrogatory.

         C. Requests for ...


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