Gonzalez-Caban et al v. JR Seafood Inc et al

Filing 212

ORDER denying 197 Motion to Compel. Signed by US Magistrate Judge Silvia Carreno-Coll on 9/21/2015. (NBB)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

LUIS GONZÁLEZ-CABÁN, ET
AL.,
Plaintiffs,
v.

CIV. NO.: 14-1507(GAG/SCC)

JR SEAFOOD INC., ET AL.,
Defendants.

ORDER
In a motion to compel, Plaintiffs complain of certain late
discovery on the part of Defendant Integrand Assurance Co.;
by way of remedy, they seek to take four new depositions.
Docket No. 197. The three items of which Plaintiffs complain
are: (1) the late-disclosed existence of additional insurance
policies of which Plaintiffs have never been informed; (2) a
2011 declaration of Ilka Soto, about which Plaintiffs had
allegedly never been informed; and (3) investigative reports
from two insurance claims adjusters.

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As to the first of these items, Integrand admits (but cannot
explain) the error. But Plaintiffs request no relief related to
insurance policies about which they’ve recently been informed,
and so the Court need do nothing else with regard to them.
Similarly, Plaintiffs request no relief regarding the Soto
declaration. Moreover, it appears that the declaration was
produced to Plaintiffs’ former counsel in 2011, as part of the
related state-court case. Docket No. 206-1; see also Docket No.
206, at 6.1
The final issue is more complicated. In May and August
2015, apparently for the first time, Integrand produced to
plaintiffs reports written by Rafael Cestero-Serrano and
Alberto Pochet reflecting a substantial investigation into the
facts surrounding the present case. See Docket Nos. 197-9, 19710. By and large, these documents were created in 2010 and

1.

In support of this statement, Integrand attached a Spanish-language
letter dated February 14, 2011, informing the other counsel in the case
that Rafael Cestero, one of the insurance investigators Plaintiffs wish to
depose, had taken a statement from Soto; according to the letter, a copy
of the declaration was included. Docket No. 206-1. Plaintiffs’ current
counsel “certif[ies] that the alleged letter was not received by
[P]laintiffs,” Docket No. 211, at 4, but it is not clear how he can do so;
the Court understands that Plaintiffs’ counsel did not even represent
Plaintiffs in February 2011.

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2011, but, by Integrand’s own admission, were produced four
or five years later. As a result of this late disclosure, Plaintiffs
wish to depose Cestero and Pochet as well as two Integrand
employees who handled the case internally.
Plaintiffs argue that while the reports may be covered by
the work-product doctrine,2 the facts underlying the reports
are discoverable. This is true. Sanchez v. Matta, 229 F.R.D. 649,
657 (D.N.M. 2004) (“[T]he work-product privilege does not
protect underlying facts.”). But if the reports themselves were
privileged, they need not have been included in Integrand’s
initial disclosures. Moreover, Plaintiffs fail to cite any authority
suggesting that the investigators’ names needed to be included
in the initial disclosures,3 nor have they specifically pointed to

2.

Work product may be discoverable where the party seeking it “shows
that it has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial equivalent by
other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Plaintiffs assert that these
requirements are met, but they fail entirely to explain how. Docket No.
197, at 12 n.5. The argument is thus waived.

3.

Plaintiffs correctly note that the First Circuit has held that “documents
found during” post-litigation investigations are discoverable. Klonoski
v. Mahlab, 156 F.3d 255, 267 (1998), superseded by rule on other grounds as
explained in, In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008).
This does not mean, however, that such information must always be
disclosed in initial disclosures, and Plaintiffs have failed to point to any

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any instance in Integrand’s written discovery responses where
it failed to provide factual information that it had as a result of
these reports. What this means is that while, if discovery were
still open, Plaintiffs might be permitted to conduct limited4
depositions of Cestero and Pochet, Plaintiffs have failed to
point to an actual discovery violation that would justify
reopening fact discovery such that they can be deposed now.
The motion to compel is thus denied.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of September, 2015.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE

other specific instance where the information at issue should have been
disclosed.
4.

See Sanchez v. Matta, 229 F.R.D. 649, 659 (D.N.M. 2004) (“Questions
asking for the content of the questions posed to interviewees, for the
organization of those questions, for follow-up questions posed, for
follow-up information obtained after any interviews, for the
investigator’s beliefs as to the witness’ veracity, for the importance of
the witness’ statement, or for similar questions would be improper as
a violation of the privilege.”).