Ribik v. Peerless Indemnity Insurance Company

Filing 40

OPINION AND ORDER: Court DENIES IN PART AS MOOT and DENIES IN PART 26 Motion to Compel Discovery and Modify Certain Case Management Deadlines. However, both parties remain free to request extensions of the discovery deadlines. Signed by Magistrate Judge Paul R Cherry on 6/30/2014. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KATHY RIBIK,
Plaintiff,
v.
PEERLESS INDEMNITY INSURANCE
COMPANY,
Defendant.

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Cause No.: 2:13-CV-154-JTM-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel Discovery and Modify
Certain Case Management Deadlines [DE 26], filed on February 20, 2014. Defendant filed a
Response on March 6, 2014; Plaintiff filed a Reply on March 17, 2014; and Defendant filed a
Surresponse with leave of Court on April 1, 2014.
I. Background
This case was originally filed in Porter County, Indiana, Superior Court on April 11, 2013.
Defendants removed to the United States District Court for the Northern District of Indiana on May
1, 2013. Plaintiff filed her First Amended Complaint on September 12, 2013. The Amended
Complaint alleges that Plaintiff was injured in a car accident, and that Defendant (Plaintiff’s insurer)
has failed to pay her what she is owed under her insurance policy, breaching the insurance contract
and its fiduciary duties to her.
On October 24, 2013, Plaintiff served Defendant with her first set of Interrogatories and her
first Request for Production of Documents. Defendant’s responses were hence due on November
23, 2013. The parties then agreed to extend the deadline to December 23, 2013. On December 23,
2013, Defendant filed an Emergency Motion for Extension of Time to Complete Discovery
Responses, contending that it needed more time to complete its responses because an attorney had

left the firm and because of holiday schedules. Plaintiff did not object, and the Court granted the
motion and set January 13, 2014, as the new deadline.
Thereafter, the parties again agreed privately to extend the deadline for Defendant to serve
Plaintiff with its responses and documents, setting the new due date for January 20, 2014. The
deadline passed without Defendant producing any responses. The parties spoke about the overdue
discovery on January 27, 2014. Defense counsel represented that discovery about Plaintiff’s underinsured motorist claims would be served by February 7, 2014, and that discovery responsive to
Plaintiff’s bad faith claims would be provided by February 14, 2014. Plaintiff did not agree to these
extensions, but nevertheless forewent filing a motion to compel.
At some point, Defendant decided to switch attorneys, and, on February 6, 2014, attorneys
John C. Trimble and Lewis S. Wooton appeared on Defendant’s behalf. (Defendant’s original
lawyers—Jennifer Davis, Court Farrell, Alexander Planeto, Bruce Clark, and Bradley Clark—had
their appearances withdrawn on March 3, 2014.)
Plaintiff represents that she contacted Defendant’s original counsel on February 20, 2014,
to make a final attempt at resolving this dispute without litigation. Defendant, however, contends
that this communication did not even touch on the discovery dispute. Instead, it represents that its
former lawyers advised Plaintiff’s counsel that the case file had been transferred to Defendant’s new
lawyers and that all further communications should be directed there.
Defendant also represents that, on February 20, 2014, its former lawyers sent an email to its
new lawyers stating that they had obtained an additional extension to accommodate the transfer of
files to Defendant’s new lawyers, that they had informed Plaintiff’s counsel that the file had been
transferred to Defendant’s new lawyers, and that any meet-and-confer discussions would have to

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occur with Defendant’s new lawyers. Plaintiff never contacted the new lawyers to discuss discovery
issues, but filed this motion on the same day, February 20, 2014.
Defendants’ new lawyers contacted Plaintiff’s counsel by phone on February 26, 2014, about
the purported general extension, and Plaintiff responded, both in the conversation and in an email
sent the next day, that no such extension had been granted or would be granted. Indeed, Plaintiff
represents that she wrote to both Defendant’s original lawyers and to its new lawyers on February
14, 2014, explaining that she expected discovery to be produced by February 19, 2014. Defendant
served its responses to the discovery requests on March 6, 2014—the same day it filed its response
to Plaintiff’s motion. Finally, it has become evident in the briefing of this motion that Defendant
began working on responding to the discovery requests only after the Motion to Compel was filed.
II. Analysis
Courts have broad discretion in deciding motions to compel. Romary Associates, Inc. v.
Kibbi LLC, 1:10-CV-376, 2011 WL 4005346 at *2 (N.D. Ind. Sept. 8, 2011); Sattar v. Motorola,
Inc., 138 F.3d 1164, 1171 (7th Cir. 1998). Here, Plaintiff’s Motion to Compel asks the Court for
three things: first that Defendant be ordered to produce the requested discovery responses; second,
that the Court deem waived any objections to the discovery requests; and third, that the Court order
Defendant to pay Plaintiff’s reasonable attorney fees spent in litigating this motion. The Court
considers each in turn.
A. Sufficiency of Defendant’s Responses
As laid out above, Defendant served Plaintiff with discovery responses shortly after Plaintiff
filed this Motion to Compel. Plaintiff states in her Reply that she is not satisfied with these
responses. But, aside from the question of whether Defendant’s objections are waived, considered
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below, the sufficiency of the responses is not properly before the court. Romary Associates, Inc.,
1:10-CV-376, 2011 WL 4005346 at *2. The Court hence denies in part as moot the Motion to
Compel.
B. Waiver of Objections and Attorney Fees
“Failure to timely assert objections to discovery requests may result in a waiver of all
objections that could have been seasonably asserted.” Autotech Tech. Ltd. Partnership v.
Automationdirect. com, Inc., 236 F.R.D. 396, 398 (N.D. Ill.2006); Stelor Productions, Inc. v. Oogles
N Googles, No. 1:05–cv–0354–DFH–TAB, 2008 WL 5062786, at *1 (S.D. Ind. Nov. 21, 2008)
(finding that a party waived its objections to discovery requests where the party failed to timely
object and disregarded a court-ordered deadline to respond).
Federal Rules of Civil Procedure 33 (which governs interrogatories) and 34 (which governs
requests for production of documents) both provide that failure to timely raise objections can result
in waiver. Fed. R. Civ. P. 33(b)(4) (providing that “[a]ny ground not stated in a timely objection is
waived unless the court, for good cause, excuses the failure”); Fed. R. Civ. P. 34(b)(2)(A) (providing
that “[t]he party to whom the request is directed must respond in writing within 30 days after being
served”).
Defendant admits the delay, but contends that it had good cause, arguing that this dispute
arose as the result of miscommunication between Plaintiff’s counsel and Defendant’s original
counsel and between Defendant’s original counsel and current counsel. The Court thinks that,
though significant, Defendant’s failures do not warrant the waiver of its objections, including
objections on the basis of attorney–client privilege. The “imposition of waiver of objections as
sanction for untimely discovery responses is a harsh sanction, and, consequently is reserved for

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cases where the offending party was guilty of unjustified delay when responding to discovery.”
Romary Associates, Inc., 1:10-CV-376, 2011 WL 4005346 *3 (internal citations and quotation
marks omitted). Since retaining its new lawyers, Defendant has promptly responded to the discovery
requests. Moreover, Plaintiff is not without blame: she knew that Defendant was switching
representation, yet, did not adequately confer with Defendant’s new lawyers about the discovery
dispute, even after being advised by Defendant’s original counsel that they had transferred the case
file and that all further discussions should be held with Defendant’s new lawyers. The Court hence
concludes that good cause existed for the delay, and denies Plaintiff’s request that Defendant’s
objections be deemed waived. Likewise, the Court does not think it would be just to order Defendant
or its new lawyers to pay attorney fees.
III. Conclusion
For these reasons, the Court DENIES in part as moot and DENIES in part Plaintiff’s
Motion to Compel Discovery and Modify Certain Case Management Deadlines [DE 26]. However,
both parties remain free to request extensions of the discovery deadlines.
SO ORDERED this 30th day of June, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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