Holcombe v. Helena Chemical Co
ORDER denying without prejudice 44 Motion to Compel; granting 34 Motion to Amend/Correct; granting 36 Motion to Compel. Signed by Honorable Patrick Michael Duffy on 02/23/2017.(adeh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Helena Chemical Co.,
C.A. No.: 2:15-cv-2852-PMD
This matter is before the Court on Plaintiff Jody Holcombe’s motion to compel (ECF No.
44), his motion to amend his complaint (ECF No. 34), and Defendant Helena Chemical Co.’s
motion to compel (ECF No. 36). For the reasons stated herein, Holcombe’s motion to compel is
denied without prejudice, his motion to amend is granted, and Helena Chemical’s motion to
compel is granted.
This negligence action arises out of a 2012 collision between a tractor-trailer driven by
Holcombe and another driven by Michael Rogers, a Helena Chemical employee. Holcombe
seeks damages from Helena Chemical, asserting theories of respondeat superior liability and
Holcombe’s Motion to Compel
Holcombe seeks punitive damages. Because “the wealth of a defendant is a relevant
factor in assessing punitive damages,” Branham v. Ford Motor Co., 701 S.E.2d 5, 24 (2010)
(citation and internal quotation marks omitted), Holcombe asked Helena Chemical to produce
records of its assets, profits, losses, and net worth over the past ten years. Holcombe sought
those records through five requests for production. Helena Chemical objected to all of them on
the grounds that the requests were overly broad, were improperly unlimited in time and scope,
sought information that would cause undue annoyance, and were not calculated to lead to the
discovery of admissible evidence. The parties were unable to resolve their dispute, so Holcombe
now asks the Court to compel production of the requested records.
Helena Chemical contends it has no obligation to produce evidence of its wealth unless
and until Holcombe establishes a prima facie case that he is entitled to punitive damages. The
Court agrees that Holcombe must make such a showing. See Nix v. Holbrook, No. 5:13-cv2173-JMC, 2015 WL 791213, at *3 (D.S.C. Feb. 25, 2015) (adopting the prima-facie standard
and declining to compel production of defendant’s financial records until after plaintiff
established the factual viability of his claim for punitive damages). The Court also agrees with
Helena Chemical that Holcombe has not done so. Therefore, the Court denies Holcombe’s
The Court notes, however, that Holcombe has not yet been challenged to make that
showing. Often, that challenge comes in the form of defense motions for summary judgment on
punitive damages. See, e.g., Taylor v. McGill Envtl. Sys. of N.C., Inc., No. 7:13-CV-00270-D,
2015 WL 1125108, at *8 (E.D.N.C. Mar. 12, 2015) (denying motion to compel production of
financial records, with leave for plaintiff to renew motion if the court denied a then-pending
motion for summary judgment on punitive damages); Nix, 2015 WL 791213, at *3 (declining to
consider compelling production of financial records until either plaintiff’s punitive-damages
claim survived a summary judgment motion or defense declined to file such a motion). Here,
Helena Chemical has never specifically challenged Holcombe’s demand for punitive damages. 1
1. Although Helena Chemical did move for summary judgment on many specific issues, it did not seek summary
judgment on that specific issue. Indeed, it made no challenge at all to some of Holcombe’s vicarious-liability
It would be illogical to fault Holcombe for not crossing a hurdle that no one ever placed in his
Accordingly, the denial is without prejudice. Holcombe may file another motion to
compel within seven days of the date of this Order. In the motion, Holcombe should state with
particularity the law and facts that he believes would enable a reasonable jury to award him
punitive damages. See Robinson v. Quicken Loans Inc., No. 3:12-0981, 2013 WL 1704839, at
*4 (S.D.W. Va. Apr. 19, 2013); Hoskins v. King, 676 F. Supp. 2d 441, 450 (D.S.C. 2009). If
Holcombe files such a motion, Helena Chemical shall have seven days thereafter to file a
response. No reply brief may be filed unless the Court requests one later.
Given the case’s procedural posture on this issue, the Court finds it would be unjust to
award Helena Chemical the expenses it incurred resisting this motion. See Fed. R. Civ. P.
Helena Chemical’s Motion to Compel
Helena Chemical has sought information about Holcombe’s employment history, with a
focus on his prior experience driving tractor-trailers. At his deposition, Holcombe provided the
names of some of his prior employers. However, his memory of his career was incomplete.
That prompted Helena Chemical to later serve Holcombe with an interrogatory and three
requests for production regarding his past employment. Helena Chemical argues Holcombe
inadequately answered the interrogatory and improperly responded to two of the requests. 2
theories, which, if shown to involve recklessness, could conceivably lead to a punitive-damages award. See Hoskins
v. King, 676 F. Supp. 2d 441, 450–51 (D.S.C. 2009).
2. A procedural oddity in this case requires some housekeeping. Helena Chemical first served the interrogatory
and requests on August 24, 2016, as a fourth set of discovery requests. Holcombe did not timely respond. Instead
of moving to compel, Helena Chemical just re-issued the interrogatory and requests on November 2 as a fifth set of
discovery requests. In its motion to compel, Helena Chemical refers to both sets and does not specify whether its
motion relates to the fourth set, the fifth set, or both. Presumably, its motion involves only the fifth set, as a motion
relating to the fourth would be untimely. See Local Civ. Rule 37.01(A) (D.S.C.). Therefore, the Court clarifies that
it is considering only the fifth set and Holcombe’s responses thereto.
Interrogatory No. 1
Helena Chemical asked Holcombe for information about jobs he held from 2006 to 2016,
including names of companies, supervisors at each job, company locations, beginning and end
dates for each job, and the reasons he left each job. Holcombe’s answer to the interrogatory was
“See Plaintiff’s multiple depositions.” 3 Helena Chemical contends Holcombe’s answer was
inadequate because his deposition testimony does not contain all the requested information.
Holcombe resists Helena Chemical’s motion on two grounds. First, he objects that his
employment history is irrelevant. However, Holcombe did not assert that objection—or any
other—when he responded to the interrogatory. Federal Rule of Civil Procedure 33(b)(4) quite
plainly states that “grounds for objecting to an interrogatory must be stated with specificity” and
that “any ground not stated in a timely objection is waived unless the court, for good cause,
excuses the failure.” Rather than attempt to establish good cause, Holcombe has blithely ignored
Rule 33(b)(4) altogether. The Court therefore overrules his objection as waived.
Holcombe next contends that referring Helena Chemical to his deposition testimony was
proper because he has no responsive knowledge beyond what he provided in his depositions.
That argument has two flaws. First, parties answering interrogatories have a duty to undertake
reasonable investigative efforts to find properly requested information. See Smithfield Bus. Park,
LLC v. SLR Int’l Corp., No. 5:12-CV-00282-F, 2013 WL 5705601, at *4 (E.D.N.C. Oct. 18,
2013). If those efforts do not enable the answering party to give complete answers, the party
“should so state under oath and should set forth in detail the efforts made to obtain the
information.” Nat’l Fire Ins. Co. of Hartford v. Jose Trucking Corp., 264 F.R.D. 233, 238–39
(W.D.N.C. 2010) (citations omitted). Holcombe has not indicated that he made any attempt to
Holcombe’s deposition in this case was split into two non-consecutive days. He also gave a deposition in a
worker’s compensation proceeding relating to the collision.
get the information Helena Chemical requested. Second, answering an interrogatory by referring
to depositions is improper. See, e.g., Smith v. Trawler Capt. Alfred, Inc., No. 2:12-cv-2866DCN, 2014 WL 1912067, at *2 (D.S.C. May 13, 2014) (“An answer to an interrogatory that
simply incorporates . . . a deposition is . . . unresponsive.”); Equal Rights Ctr. v. Post Props.,
Inc., 246 F.R.D. 29, 35 (D.D.C. 2007) (“Because Rule [33(b)(3)] requires a party to answer each
interrogatory ‘fully,’ it is technically improper and unresponsive for an answer to an
interrogatory to refer to outside material, such as pleadings, depositions, or other
interrogatories.” (citation omitted)); Ill. Nat. Bank & Trust Co. of Chicago v. Caton, 136 F.R.D.
682, 687 (D. Kan. 1991) (“Incorporation by reference to a deposition is not a responsive
answer.”); 8B Charles A. Wright et al., Federal Practice and Procedure § 2177 (3d ed. 2004)
(stating that “[s]imply referring to pleadings or other discovery is frequently found insufficient”
and collecting cases).
Holcombe’s interrogatory answer is thus insufficient. Holcombe is hereby ordered to
respond fully to the interrogatory within fourteen days of the date of this Order.
Request for Production No. 1
Helena Chemical asked Holcombe to produce “[a]ll documents related to Plaintiff’s
employment identified in Helena’s Fourth [sic] Set of Interrogatories.”
In his response,
Holcombe objected that the request was vague, ambiguous, and overly broad. Now, however, he
does not reassert or even discuss any of those objections. Thus, he has abandoned them. See
Stillwagon v. Innsbrook Golf & Marina, LLC, No. 2:13-CV-00018-D, 2014 WL 1652562, at *11
n.21 (E.D.N.C. Apr. 23, 2014) (finding defendants abandoned objections asserted in their
discovery responses by not reasserting them in their opposition to plaintiff’s motion to compel).
Instead, Holcombe now argues the requested documents are irrelevant.
He did not
timely assert that objection in his response, so it is overruled as waived. See Hall v. Sullivan,
231 F.R.D. 468, 474 (D. Md. 2005) (“[I]mplicit within Rule 34 is the requirement that objections
to document production requests must be stated with particularity in a timely answer, and that a
failure to do so may constitute a waiver . . . .”).
As Holcombe has failed to assert a valid objection, the Court hereby orders him to
respond fully to this request for production within fourteen days of this Order. 4
Request for Production No. 3
Helena Chemical asked Holcombe to produce copies of his federal and state tax returns
for the years 2007 to 2015. Holcombe did not object to the request. Instead, his response was
“Not in Plaintiff’s possession.”
Holcombe now objects to the request on the basis that his tax returns are irrelevant.
Again, this objection comes too late and thus is overruled as waived. Holcombe shall produce
the requested tax returns within fourteen days of the date of this Order.
Award of Costs and Attorney’s Fees
Helena Chemical asks for an award of attorney’s fees and costs it incurred in connection
with its motion. Within five days of this Order, Helena Chemical shall provide the Court and
Holcombe a statement of expenses it seeks to recover. Holcombe shall thereafter have five days
to submit a brief asserting any arguments he may have for why those expenses should not be
awarded. See Fed. R. Civ. P. 35(a)(5).
As part of that compliance, Holcombe shall obtain, or allow Helena Chemical’s counsel to obtain, the
employment history information Helena Chemical seeks from the South Carolina Department of Employment and
Holcombe’s Motion to Amend the Complaint
Finally, because Helena Chemical consents, Holcombe’s motion for leave to file an
amended complaint is granted. He may file the proposed amended pleading within five days of
the date of this Order.
Therefore, it is ORDERED that Holcombe’s motion to compel is DENIED without
prejudice, that Helena Chemical’s motion to compel is GRANTED, and that Holcombe’s motion
to amend is GRANTED.
AND IT IS SO ORDERED.
February 23, 2017
Charleston, South Carolina
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