Filing
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ORDER: granting 4 Motion to Compel. Defendant, Liberty Mutual, shall respond to Plaintiffs' discovery requests within fourteen (14) days of the date of this Order. Signed by Magistrate Judge James E. Seibert on 5/13/2011. (cmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL CAIN and TAMARA CAIN,
Plaintiffs,
v.
Civil Action No. 3:10-cv-109
LIBERTY MUTUAL INSURANCE COMPANY
and MTG & EQUITY FUNDING CORPORATION,
Defendants.
ORDER
This matter comes before the Court on Plaintiffs, Michael and Tamara Cain’s, Motion to
Compel Discovery Answers and Responses from Defendant, Liberty Mutual Insurance Company
(hereinafter “Liberty Mutual”), filed October 22, 2010.1 The Court held an evidentiary hearing
and argument on Third-Party Plaintiffs’ Motion on November 17, 2010 and an additional
evidentiary hearing on Plaintiffs’ Motion on March 21, 2011.2 Plaintiffs, Michael and Tamara
Cain, appeared by Laura C. Davis, Esq., by telephone. Defendant, Liberty Mutual, appeared by
William M. Harter, Esq., by telephone. Defendant, Mortgage & Equity Funding Corporation
(hereinafter “MTG”), appeared by Lucien G. Lewin, Esq., by telephone. No testimony was
taken nor was any other evidence adduced.
I. INTRODUCTION
A.
Background
This action was initially filed on November 19, 2009 in the Circuit Court of Jefferson
1
Dkt. No. 4.
2
Dkt. Nos. 20 & 57, respectively.
1
County, West Virginia, seeking recovery for injuries sustained by Plaintiff, Valerie J. Wilheim,
while she was present at Defendants’/Third-Party Plaintiffs’ home. Liberty Mutual and MTG
timely removed to federal court pursuant to 28 U.S.C. § 1446 on July 29, 2009 alleging diversity
jurisdiction. On October 22, 2010, Defendants’/Third-Party Plaintiffs, Michael and Tamara
Cain, filed a Motion to Compel Discovery Answers and Responses from Liberty Mutual.3 An
evidentiary hearing was held on Defendants’/Third-Party Plaintiffs Motion on November 17,
2010.4 On November 24, 2010, the Court entered an Order granting, in part, Defendants/ThirdParty Plaintiffs Motion to Remand to State Court.5 The Order remanded to allow the state court
to review the settlement for Plaintiff, Valerie J. Wilheim and stated that if the state court
approved the settlement and dismissed Plaintiff, Valerie J. Wilheim that this Court would resume
jurisdiction over the third-party complaint and would realign the parties as plaintiff versus
defendant.6 On January 14, 2011, the Court issued a memorandum opinion and order granting
then Third Party Plaintiffs/Defendants, Michael and Tamara Cains’, Motion to Compel
Discovery Responses from Liberty Mutual.7 The Court, on January 21, 2011, granted Michael
and Tamara Cains’ Motion to Realign the parties.8 Liberty Mutual timely filed objections to the
Order granting Plaintiffs’, Michael and Tamara Cain, Motion to Compel on January 28, 2011.
3
Dkt. No. 4.
4
Dkt. No. 35.
5
Dkt. No. 28.
6
Dkt. No. 28.
7
Dkt. No. 36.
8
Dkt. No. 40.
2
Liberty Mutual’s objections were sustained by the Court and the ruling was set aside.9 Plaintiffs
filed a Motion to Reset the Evidentiary Hearing and Argument on Plaintiffs’ Motions to Compel
on March 8, 2011.10 An evidentiary hearing and argument on Plaintiffs’ Motions to Compel was
held on March 21, 2011.11
B.
The Motions
Plaintiffs’ Motion to Compel Discovery Answers & Responses from Liberty Mutual
Insurance Company.12
Plaintiffs’ Motion to Reset Evidentiary Hearing on Plaintiffs’ Motions to Compel.13
C.
Decision
Plaintiffs’ Motion to Compel discovery responses from Liberty Mutual is hereby
GRANTED because Liberty Mutual’s discovery responses were untimely and of a generalized
nature.
Defendant, Liberty Mutual, shall respond to Plaintiffs’ discovery requests within fourteen
(14) days of the date of this Order.
II. FACTS
1.
9
On October 22, 2010, Third-Party Plaintiffs filed a Motion to Compel Discovery
Dkt. Nos. 42 & 43, respectively.
10
Dkt. No. 49.
11
Dkt. No. 65.
12
Dkt. No. 4.
13
Dkt. No. 49.
3
Answers & Responses from Liberty Mutual Insurance Company.14
2.
This Court set an evidentiary hearing and argument on Third-Party Plaintiffs’ Motion
to Compel on November 3, 2010.15
3.
On November 16, 2010, Third-Party Defendant, Liberty Mutual, filed its Response
in Opposition to Third-Party Plaintiffs’ Motion.16
4.
The evidentiary hearing and argument was held on November 17, 2010.17
5.
On March 8, 2011, Plaintiffs filed a Motion to Reset Evidentiary Hearing on
Plaintiff’s Motions to Compel Discovery From Liberty Mutual Insurance Company
and MTG & Equity Funding Corporation.18
6.
The evidentiary hearing and argument on Plaintiffs’ Motion was held on March 21,
2011.
III. PLAINTIFFS’ MOTION TO COMPEL
A.
Contentions of the Parties
Plaintiffs move for an order compelling Liberty Mutual to respond, fully and completely,
to Plaintiffs’ discovery requests. Plaintiffs argue Liberty Mutual was served with interrogatories
“concerning Liberty Mutual’s breach of its first-party duties to the [Plaintiffs] as well as its
violations of the UTPA....” which Liberty Mutual failed to answer timely. See Third-Party Pls.’
14
Id.
15
Dkt. No. 9.
16
Dkt. No. 17.
17
Dkt. No. 20.
18
Dkt. No. 49.
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Mot. to Compel, Page 5 (Dkt. 4). Plaintiffs also contend Liberty Mutual’s subsequent objections
to Plaintiffs’ discovery requests pursuant to W.Va. Code § 33-11-4a are without merit. Plaintiff
highlights that Liberty Mutual “failed to provide a verification for its answers to Plaintiffs’
interrogatories...[a]lthough Liberty Mutual filed mostly objections....” Id. at 6. Thus, Plaintiffs
argue Liberty Mutual’s responses must be compelled because its objections are untimely and are
also without merit.
In Plaintiffs’ Motion to Reset, Plaintiffs contend a telephonic meeting occurred between
the parties on February 4, 2011 to discuss the discovery dispute but that, subsequently, no
supplementation was made. Accordingly, Plaintiffs contend “all matters set forth in Plaintiffs’
respective Motions to Compel against Liberty Mutual...are now ripe for resolution.” See Pls.’
Mot. to Reset, Pg. 2 (Dkt. 49).
In its opposition to Plaintiffs’ Motion to Compel, Liberty Mutual’s argument is fourfold.
Liberty Mutual argues procedurally that because the parties have yet to confer pursuant to Fed.
R. Civ. P. 26(f), Plaintiffs’ Motion is premature. Liberty Mutual proffers an additional
procedural argument that Plaintiffs did not comply with the “good faith” duty required before
filing Plaintiffs’ Motion to Compel. Substantively, Liberty Mutual contends its objections
should stand because Liberty Mutual’s counsel delayed making such objections to allow
Plaintiffs’ counsel to “realize that [Plaintiffs] have no viable claim against Liberty Mutual....”
See Def.’s Resp., Page 7 (Dkt. 17). This, Liberty Mutual contends, constitutes the requisite
“good cause” which would absolve the alleged untimeliness. Additionally, Liberty Mutual
argues that while Rule 33 of the West Virginia Rules of Civil Procedure provides for waiver, “no
similar punishment exists under Rule 34.” Id. Liberty Mutual ultimately maintains its discovery
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responses were proper and are a sufficient basis for the Court to deny Plaintiffs’ Motion.
Liberty Mutual did not respond to Plaintiffs’ Motion to Reset. At the evidentiary
hearing, Liberty Mutual advised it was “happy to stand on [its] earlier argument [given in the
evidentiary hearing held November 17, 2010];” however, it did proffer two additional arguments
at the subsequent evidentiary hearing. See Transcript, pg. 10 (Dkt. 65). First, Liberty Mutual
contends the objections in its Response to Plaintiffs’ Motion to Compel were the same objections
raised in Liberty Mutual’s responses to Plaintiffs’ discovery requests and, therefore, were
specific objections. Id. at 7. Liberty Mutual also argues the waiver provisions in the Federal
Rules of Civil Procedure are inapplicable and that West Virginia state court rules govern the
discovery process because Plaintiffs’ discovery was propounded when the action was pending in
state court. Id. at 8. Liberty Mutual argues there is no comparable state court rule providing for
waiver of untimely objections to document production requests. Therefore, Liberty Mutual
asserts that it cannot “be deemed to have waived objections to document requests because the
federal rule didn’t apply and because there is no similar state rule.” Id. at 9.
B.
Discussion
1.
Timeliness of Liberty Mutual’s Objections
Pursuant to Fed. R. Civ. P. 37(a), a party may move for an order to compel discovery or
disclosure from an opposing party where the opposing party fails to respond or where the party’s
response is evasive or incomplete. Specifically, parties may move for an order compelling an
answer to a deposition question, a designation under Rule 30(b)(6) or Rule 31(a)(4), a response
to an interrogatory, and a response to a request for production. Fed. R. Civ. P. 37(a)(3)(B)(i)-
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(iv). To properly file a motion to compel in this Court, a party must submit with the motion a
statement setting forth “verbatim each discovery request or disclosure requirement and any
response thereto to which an exception is taken.” LR Civ P 37.02(a)(1). When a party refuses to
produce documents or answer interrogatories during discovery, it has a duty to particularize that
objection within the time period provided for discovery responses. Fed. R. Civ. P. 26(b)(5).
Plaintiffs argue Liberty Mutual waived any objections it had to Plaintiffs’ requested
discovery by untimely answering. In opposition, Liberty Mutual essentially argues sufficient
good cause existed to permit Liberty Mutual to file its objections “within three weeks of being
due.” See Def.’s Resp., Page7 (Dkt. 17). The “good cause” being “that–when presented with
the key documents–[Plaintiffs’] counsel would realize that [Plaintiffs] have no viable claim
against Liberty Mutual.” Id. The Court finds Liberty Mutual’s argument unpersuasive.
Discovery is an on-going process and Liberty Mutual had an obligation to answer Plaintiffs’
interrogatories and document production requests to the best of its ability. If Liberty Mutual
believed the discovery requests to be objectionable, it had one of two options available: move for
a protective order from the Court or provide timely specific and articulate objections to such
requests as well as a privilege log. Liberty Mutual did not take such action. It is well known
interrogatory objections not included in a timely response are waived, even if objections are
contained in a later untimely response, absent a showing of good cause. Spilotro v. United
States, 478 F.2d 1406 (7th Cir. 1973). No party may simply delay answering interrogatories in
hopes that opposing counsel will “see the light,” so to speak. Liberty Mutual’s objections were
untimely and the Court declines to find its proffered explanation as to constitute sufficient “good
cause.”
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2.
Adequacy of Liberty Mutual’s Objections
Boilerplate objections to discovery requests, including for documents, are inappropriate.
See PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 293 (N.D.W.Va. 2004). The Federal Rules
of Civil Procedure require particularized objections precisely to allow an opposing party to
respond appropriately. Fed. R. Civ. P. 26(g). Any ground not stated in a timely objection is
waived unless the court, for good cause, excuses the failure. Fed. R. Civ. P. 33(b)(4). While
Rule 34 lacks similar waiver provisions, this Court has applied the waiver provision applicable
to interrogatories under Rule 33 to document production requests. See Essex Insurance Co. v.
Neely, 236 F.R.D. 287 (N.D.W.Va. 2006). As a general rule, untimely objections to discovery
requests are waived. Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991). A
court may, however, excuse a failure to timely object if it finds good cause shown. Fed. R. Civ.
P. 33(b)(4).
In terms of claiming privilege, in diversity cases such as this one, the Court applies state
law to issues concerning attorney client privilege and federal law to assertions of the work
product doctrine. Nicholas v. Bituminous Cas. Co., 235 F.R.D. 325, 329 n. 2 (N.D.W.Va. 2006).
The West Virginia Supreme Court of Appeals has held there are three elements necessary
to the assertion of privilege: “(1) both parties must contemplate that the attorney-client
relationship does or will exist; (2) the advice must be sought by the client from the attorney in
his capacity as a legal advisor; (3) the communication between the attorney and client must be
intended to be confidential.” State ex rel. Med. Assur. of W. Va., Inc. v. Recht, 213 W. Va. 457,
466, 583 S.E.2d 80, 89 (2003).
The work product doctrine protects the work of the attorney done in preparation for
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litigation. Fed. R. Civ. P. 26(b)(3). Not even the most liberal of discovery theories can justify
unwarranted inquiries into the files and mental impressions of an attorney. Hickman v. Taylor,
329 U.S. 495, 510, 67 S. Ct. 385 (1947). The Fourth Circuit has described the work product
doctrine as follows:
Under the work product rule, an attorney is not required to divulge,
by discovery or otherwise, facts developed by his efforts in
preparation of the case or opinions he has formed about any phase of
the litigation...fact work product is discoverable only upon a showing
of both a substantial need an an inability to secure the substantial
equivalent of the materials by alternate means without undue
hardship. Opinion work product is even more carefully protected,
since it represents the thoughts and impressions of hte attorney...an
attorney’s thoughts are inviolate,...and courts should proceed
cautiously when requested to adopt a rule that would have an
inhibitive effect on an attorney’s freedom to express and record his
mental impressions and opinions without fear of having these
impressions and opinions used against the client. As a result, opinion
work product enjoys nearly absolute immunity and can be discovered
only in very rare and extraordinary circumstances.
Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999).
“In showing a substantial need for fact work product, the movant must specifically articulate the
necessity for the documents or other tangible things...and must also demonstrate why or how
alternative sources for obtaining the substantial equivalent are unavailable.” Tustin v. Motorists
Mutual Insurance Co., 5:08-cv-111, 2009 U.S. Dist. LEXIS 4853, at *13-14 (N.D. W. Va. Jan.
23, 2009). A non-exhaustive list of factors to be assessed in determining substantial need
includes: 1) the importance of the materials to the party seeking them for case preparation; 2) the
difficulty the party will have obtaining them by other means; and 3) the likelihood that the party,
even if he obtains the information by independent means, will not have the substantial equivalent
of the documents he seeks. Fed. R. Civ. P. 26(b)(3), advisory committee’s note, 1970
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Amendments.
When a party refuses to produce documents during discovery on the basis that they are
privileged or protected, it has a duty to particularize that objection within the 30-day time period
provided for discovery responses. Fed. R. Civ. P. 26(b)(5) (2010); Fed. R. Civ. P. 34(b)(2). To
qualify as privileged work product, the document must be prepared “because of the prospect of
litigation when the preparer faces an actual claim or a potential claim following an actual event
or series of events that reasonably could result in litigation. National Union Fire Ins. Co. of
Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992). The burden
is on the party resisting discovery to show that the documents are protected. See United States v.
(Under Seal), 748 F.2d 871, 876 (4th Cir. 1984). LR Civ. P. 26.04, in relevant parts, also
provides:
(a)(1) Waiver: Objections to disclosures or discovery that are not
filed within the response time allowed by the Federal Rules of Civil
Procedure, the scheduling order(s), or stipulation of the parties
pursuant to Fed. R. Civ. P. 29, whichever governs, are waived unless
otherwise ordered for good cause shown.
(a)(2)(i)(A) Claims of Privilege: Where a claim of privilege is
asserted in objecting to any means of discovery or disclosure
including, but not limited to, a deposition, and an answer is not
provided on the basis of such assertion [t]he attorney asserting the
privilege shall identify the nature of the privilege (including work
product) that is being claimed and, if the privilege is governed by
state law, indicate the state’s privilege rule being invoked and certify
the attorney had reviewed each document for which privilege is
asserted
LR Civ. P. 26.04 (a)(1), (2)(i)(A).
“As the attorney-client privilege and the work product exception may result in the
exclusion of evidence which is otherwise relevant and material and are antagonistic to the notion
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of the fullest disclosure of the facts, courts are obligated to strictly limit the privilege and
exception to the purpose for which they exist.” State ex. rel. United States Fidelity and Guar.
Co. v. Canady, 194 W. Va. 431, 438, 460 S.E.2d 677, 684 (1995). The person asserting the
privilege has the burden of showing it applies. Id.
Regarding the adequacy of Liberty Mutual’s untimely objections to Plaintiffs’ discovery
requests, the Court finds Liberty Mutual’s objections to be of a general nature despite Liberty
Mutual’s argument to the contrary. In Liberty Mutual’s Responses to Plaintiffs’ First Set of
discovery requests, the first page states a general objection to specific interrogatories and
document production requests. Specifically, Liberty Mutual objected “on the grounds that the
discovery requests seek information which is neither relevant nor reasonably calculated to lead
to the discovery of admissible information, in violation of Rule 26 of the Rules of Civil
Procedure.” See Pls.’ Mot. to Compel, Exhibit D (Dkt. 4). While Liberty Mutual contends it
provided specific objections in its discovery responses, the Court still finds Liberty Mutual at
odds with the procedural rules. For example, in Liberty Mutual’s discovery response to
Interrogatory 1, Liberty Mutual objects on the grounds that the interrogatory is “compound,” and
“overly broad.” Id. at 2. The details Liberty Mutual provides regarding why the request is
objectionable does not permit the Plaintiffs to respond adequately nor is it useful to the Court in
ruling on a discovery motion. Liberty Mutual also objects to multiple discovery requests on the
grounds that the “interrogatory only seeks information which would be discoverable if the
[Plaintiffs] had a viable claim for ‘bad faith’ or violation of the Unfair Trade Practices Act.” Id.
at 3, 6. Liberty Mutual’s responses to this effect are improper. It attempts to make a unilateral
decision of law that is reserved to the Court alone. Under both the West Virginia Rules of Civil
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Procedure and the Federal Rules of Civil Procedure, discovery is broad and is only limited to the
extent that the information sought is not reasonably calculated to lead to the discovery of
admissible evidence. The purpose of discovery is to “flush out” Plaintiffs’ claims and
Defendant’s defenses. The proper course of action for Liberty Mutual would have been to seek a
protective order from the Court or to file a Motion to Strike. Lastly, Liberty Mutual objects to
responding to several of Plaintiffs’ discovery requests on the grounds that the information sought
is “protected from disclosure by the attorney client and work product privilege.” Id. at 8, 9.
Liberty Mutual, however, did not submit a privilege log to permit the court to adjudge the
veracity of Liberty Mutual’s assertions of privilege. Under both the West Virginia and Federal
Rules of Civil Procedure, any ground not stated in a timely objection is waived unless the court,
for good cause, excuses the failure. See W. Va. R.C.P. 33; Fed. R. Civ. P. 33. While Fed. R.
Civ. P. 34 and its West Virginia counterpart lack similar waiver provisions, the Court has leeway
in Fed. R. Civ. P. 37 and W. Va. R.C.P. 37 to impose discovery sanctions as the Court deems
appropriate. Accordingly, the Court finds Liberty Mutual’s responses to Plaintiffs’ discovery
requests to be insufficient. The Court, additionally, declines to find good cause. Therefore,
Liberty Mutual’s discovery objections are waived due to the untimeliness and generalized
nature.
C.
Decision
Plaintiffs’ Motion to Compel discovery responses from Liberty Mutual is hereby
GRANTED because Liberty Mutual’s discovery responses were untimely and of a generalized
nature.
Defendant, Liberty Mutual, shall respond to Plaintiffs’ discovery requests within fourteen
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(14) days of the date of this Order.
Filing of objections does not stay this Order.
Any party may, within fourteen (14) days after being served with a copy of this Order, file
with the Clerk of the Court written objections identifying the portions of the Order to which
objection is made, and the basis for such objection. A copy of such objections should also be
submitted to District Court Judge of Record. Failure to timely file objections to the Order set forth
above will result in waiver of the right to appeal from a judgment of this Court based upon such
Order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro
se and any counsel of record, as applicable.
IT IS SO ORDERED.
DATED: May 13, 2011
/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE
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