QBE Insurance Corporation v. Jorda Enterprises Inc.,
Filing
56
ORDER granting in part and denying in part 47 Motion to Compel. Signed by Magistrate Judge Jonathan Goodman on 8/29/2011. (dkc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 10-21107-CIV-GOLD/GOODMAN
QBE INSURANCE CORPORATION,
Plaintiffs,
v.
JORDA ENTERPRISES, INC.,
Defendant.
_______________________________________
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO COMPEL
This cause is before me on Defendant’s Motion to Compel complete answers to
interrogatories. (DE# 47.) Plaintiff responded on August 3, 2011, and Defendant filed a Notice
of Supplemental Authority on August 24, 2011. (DE# 50; DE# 54.) The Court held a hearing on
Defendant’s motion on August 26, 2011. (DE# 55.) After reviewing the filings and considering
the parties’ oral argument at the hearing, the Court grants Defendant’s motion in part and denies
it in part, as described below. 1
I.
Interrogatory Number 1
The motion is granted as to interrogatory number 1. Plaintiff must provide a more
complete answer to this interrogatory within two weeks, as discussed on the record.
II.
Interrogatory Number 3
The motion is granted as to interrogatory number 3. Plaintiff must provide a more
complete answer to this interrogatory within two weeks, as discussed on the record. If the
1
Any interrogatory not discussed in this order either was not at issue in the motion or at
the hearing Defendant’s counsel noted it was no longer at issue.
response to this interrogatory is truly identical to the response to interrogatory number 1, then
Plaintiff may indicate so and need not repeat the response in full.
III.
Interrogatory Number 4
The motion is denied as to interrogatory number 4 because, among other reasons stated
on the record, it appears the parties have equal access to these documents.
IV.
Interrogatory Number 5
The motion is granted as to interrogatory number 5. Plaintiff must provide a more
complete answer, focusing specifically on the repairs done to correct Defendant’s work, within
two weeks, as discussed on the record.
V.
Interrogatory Number 6
The motion is granted in part as to interrogatory number 6. At the hearing, the parties
discussed the possibility that Plaintiff’s former attorney, Mark Dixon, may have taken statements
from individuals not previously disclosed to Defendant.
Plaintiff’s counsel said she was
currently trying to obtain Mr. Dixon’s file but that she has been unable to successfully contact
Mr. Dixon yet. Plaintiff is therefore ordered to continue its attempts to contact Mr. Dixon and to
obtain his file. If Plaintiff or its counsel is still unable to obtain the file from Mr. Dixon after two
weeks, then counsel must file an affidavit outlining the efforts she and her client made to obtain
the file, why their efforts were frustrated, and what additional steps Plaintiff intends to take to
obtain the file.
VI.
Interrogatory Number 8
The motion is granted in part as to interrogatory number 8 to the extent that Plaintiff must
identify the applicable statutes on which its claims are based within two weeks.
2
VII.
Interrogatory Number 9
The motion is granted as to interrogatory number 9. It is Plaintiff’s burden to attempt to
obtain this information because Plaintiff brought this lawsuit and stands in the shoes of its
insured. Plaintiff must provide a more complete answer to this interrogatory within two weeks.
If Plaintiff is unable to obtain any relevant, discoverable, and responsive information for
whatever reason (e.g., noncooperation from the insured), then Plaintiff’s response will describe
these reasons.
VIII. Interrogatory Number 10
The motion is granted as to interrogatory number 10. Plaintiff must provide a more
complete answer to this interrogatory within two weeks, including factual information about who
Plaintiff believes was responsible for each of the eight factors referenced in this interrogatory.
Plaintiff does not need to assign a specific fault percentage to each person or entity identified,
however.
IX.
Interrogatory Number 11
The motion is denied as to interrogatory number 11 for the reasons stated on the record.
X.
Interrogatory Number 12
The motion is granted as to interrogatory number 12. Plaintiff’s insured previously
agreed to the dismissal with prejudice of Defendant in a different lawsuit and Defendant is
entitled to know why Plaintiff believes Defendant is still liable to Plaintiff. Plaintiff must
provide a succinct explanation within four weeks.
XI.
Interrogatory Number 13
The motion is granted as to interrogatory number 13. Plaintiff must provide a more
complete answer to this interrogatory within two weeks, as discussed on the record.
3
XII.
Interrogatory Number 15
The motion is denied as to interrogatory number 15. The interrogatory as phrased does
not request the information defense counsel stated at the hearing that he intended to request.
Defendant may, however, submit a revised interrogatory within two weeks and Plaintiff must
respond to the revised interrogatory within thirty days.
XIII. Interrogatory Number 17
The motion is denied as to interrogatory number 17 for the reasons stated on the record.
XIV. Other Issues
Defense counsel raised a concern that Plaintiff listed new witnesses in its witness list
whom Plaintiff did not list in its initial Rule 26 disclosures. Plaintiff must update and serve
revised disclosures, including any new witnesses, within two weeks.
Defense counsel also raised the issue of Plaintiff’s failure to respond to Defendant’s
request for a Rule 26(f) electronic discovery conference. Defense counsel stated he previously
made multiple requests. Plaintiff’s counsel stated that she was unaware of these requests.
Plaintiff is ordered to respond to any future request for such a conference within one week. The
actual electronic discovery conference itself does not necessarily have to occur that week. In
addition, if defense counsel did in fact previously request such a conference, Plaintiff’s counsel
must respond to those previous requests by no later than Friday, September 2, 2011.
XV.
Cost-Shifting Under Federal Rule of Civil Procedure 37
Defense counsel requested at the hearing that the Court award his client its reasonable
expenses, including attorneys fees, incurred in bringing the motion to compel.
The Court
indicated at that time that it was taking the issue of Rule 37 cost-shifting under advisement.
4
The Court finds that many of Plaintiff’s objections were substantially justified. For
instance, Plaintiff has no obligation to identify Rule 36(b) witnesses and bind itself to only these
witnesses in advance of the taking of these depositions or even receipt of a deposition notice.
But the Court also finds that some objections were not substantially justified.
In particular, the Court is especially concerned with Plaintiff’s apparently minimal efforts
to obtain the files of its previous attorney, Mark Dixon. At the hearing, it appeared that all
Plaintiff’s counsel knew was that she asked her paralegal to track down Mr. Dixon and that the
paralegal may have called Mr. Dixon. But Plaintiff’s counsel had little else other to offer except
that these efforts, whatever they were, were unsuccessful. This lawsuit was filed almost a year
and a half ago and Plaintiff should have either obtained the file by now or had more information
available about the status of the file – especially because it is the party who chose to file the
lawsuit in the first place. The Court is also concerned with Plaintiff’s lack of effort in obtaining
information responsive to interrogatory number 9. The Court understands that QBE is pursuing
this lawsuit as a subrogation case and therefore needs to obtain information from its insured, who
has already received payment on the policy. Nevertheless, QBE conceded at the hearing that it is
obligated to obtain information from its insured.
Though the Court is obligated under Rule 37 to impose some cost-shifting as a result of
these findings, the Court believes that, under the circumstances, the cost-shifting should be
minimal. A few of Defendant’s positions were not particularly well taken. But on balance,
Plaintiff’s incomplete preparation and its initially incorrect legal arguments (in its written
response) outweigh 2 those portions of the motion to compel which were denied. 3 Plaintiff is
2
Federal Rule of Civil Procedure 37(a)(5)(C) authorizes the court to “apportion” the
reasonable expenses when the motion is granted in part and denied in part. The Court has done
that here.
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thereby ordered to reimburse Defendant $400 in expenses, 4 to be paid within 10 days of entry of
this Order.
DONE and ORDERED, in Chambers, in Miami, Florida, this 29th day of August, 2011.
Copies furnished to:
The Honorable Alan S. Gold
All counsel of record
3
In its opposition to the motion to compel, Plaintiff took the position that a privilege log
“is not required” and need not be prepared because a log is required only for an objection to a
document request, not an interrogatory. (DE# 50, p. 2, n. 2.) The Local Rules, of course,
provide to the contrary and Plaintiff conceded the point at the hearing, in response to questions
from the Court. Likewise, Plaintiff’s written objection appeared to take the position that
contention interrogatories are improper. At the hearing, however, Plaintiff conceded that
contention interrogatories are not per se unavailable. Instead, Plaintiff noted that they would be
premature until additional discovery unfolds in the case. Nevertheless, Plaintiff’s position
caused Defendant to research and file a notice of supplemental authority that included cases
supporting the permissibility of contention interrogatories.
4
The federal rule does not require a bad faith finding to justify an expense award, and the
Court makes no such finding. Instead, the rule requires an expense award as a cost-shifting
mechanism associated with discovery motions. The rule provides certain limited safety valve
exceptions but those do not apply for many of the Plaintiff’s objections. Thus, this order is not a
disciplinary sanction. Rather, it is simply an apportioned expense award entered against a party
because the rule requires entry of an award in favor of a party prevailing on a discovery motion.
6
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