Young et al v. Cook et al
Filing
89
MEMORANDUM OPINION AND ORDER denying defendant Allstate Insurance Company's 81 MOTION to Exclude attorney witnesses. Allstate is given leave to seek a further modification of the scheduling order. Any such request should be made no later than 5/27/2011. Signed by Judge John T. Copenhaver, Jr. on 5/20/2011. (cc: attys; any unrepresented party) (lca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LARRY YOUNG and MELISSA YOUNG,
his wife,
v.
Plaintiffs
Civil Action No. 2:10-0013
CHRISTOPHER COOK and
ALLSTATE INSURANCE COMPANY
an Illinois corporation,
Defendants
MEMORANDUM OPINION AND ORDER
Pending is defendant Allstate Insurance Company’s
(“Allstate”) motion to exclude attorney witnesses filed April 6,
2011.
I.
Count One of the complaint alleges a claim for damages
against defendant Christopher Cook arising from an August 14,
2008, automobile accident.
Count Two alleges a claim against
Allstate for alleged violations of the West Virginia Unfair Trade
Practices Act (“UTPA”) committed during the course of the
handling of plaintiffs’ claim for underinsured motorist coverage
arising out of the August 14, 2008, accident.
On January 19, 2010, the court’s order and notice was
entered.
It set a March 19, 2010, deadline for Rule 26(a)(1)
disclosures.
On February 8, 2010, Allstate moved to bifurcate
and stay Count Two.
On March 17, 2010, the court entered a
scheduling order providing in pertinent part as follows:
2. Discovery. The parties shall complete all discovery
requests by July 19, 2010, and all depositions by
September 1, 2010. The last date to complete
depositions shall be the “discovery completion date” by
which all discovery, including disclosures required by
Federal Rule of Civil Procedure 26(a)(1) . . . shall be
completed. . . .
Young v. Cook, No. 2:10-0013, sched. ord. at 1-2 (S.D. W. Va.
Mar. 17, 2010).
On March 19, 2010, plaintiffs served their Rule
26(a)(1) disclosures, which apparently did not name any lawyers
as fact witnesses.
On March 26, 2010, the court granted the
bifurcation request.
See Young v. Cook, No. 2:10-0013, slip op.
at 2 (S.D. W. Va. Mar. 26, 2010) (stating that “all discovery
respecting Count Two . . . is . . . stayed pending the further
order of the court.”).
On August 12, 2010, the court entered a proposed agreed
order dismissing Count One.
The parties filed a new Rule 26(f)
Report addressing scheduling issues related to Count Two.
The
Rule 26(f) Report states that “[t]he parties will exchange by
2
October 18, 2010 the information required by Fed.R.Civ.P.
26(a)(1).”
(R. 26(f) Rep. ¶ 2).
On August 27, 2010, plaintiffs sent their first set of
discovery requests to Allstate.
They granted Allstate an
extension of time to answer these requests until October 15,
2010.
On September 3, 2010, the court entered a scheduling order
concerning Count Two, which provided in pertinent part as
follows:
1. Discovery. The parties shall complete all discovery
requests by December 20, 2010, and all depositions by
February 1, 2011. The last date to complete
depositions shall be the "discovery completion date" by
which all discovery, including disclosures required by
Federal Rule of Civil Procedure 26{a) (1) . . . shall
be completed.
Young v. Cook, No. 2:10-0013, sched. ord. at 1-2 (S.D. W. Va.
Sept. 3, 2010).
On September 8, 2010, Allstate served its First Set of
Discovery Requests.
Interrogatory number 5 sought identification
of:
all witnesses who will be able to provide any factual
support for your contention that . . . Defendant
violated the West Virginia Unfair Trade Practices Act.
Please state what these witnesses will testify about.
(Def.’s Mot. to Excl., Ex. B at 5).
On November 2, 2010,
plaintiffs objected, noting as follows:
3
This Interrogatory is premature as discovery is still
ongoing in this matter. . . . [P]laintiffs reserve the
right to supplement this response as additional
information becomes available during discovery.
(Id., Ex. C, at 4).
On October 15, 2010, Allstate responded to plaintiff’s
discovery requests served on August 27, 2010.
The response
included a compact disc containing 651 civil actions, prosecuted
by 353 lawyers, against Allstate from 1984 through 2009.
On
December 3, 2010, plaintiffs supplemented their November 2, 2010,
interrogatory response.
They stated as follows:
Counsel for the Plaintiff[s] is in the process of
contacting other West Virginia counsel who have had
similar bad faith cases against Allstate which were
identified in Allstate’s discovery responses.
Plaintiffs reserve the right to supplement this
response upon receipt of the report from their expert
witness.
(Id., Ex. D at 1-2).
On January 31, 2011, the parties jointly moved to
modify the September 3, 2010, scheduling order.
On February 2,
2011, the court granted the requested modification.
The February
2, 2011, revised scheduling order set a discovery completion date
of May 3, 2011.
The February 2, 2011, revised scheduling order
also stated as follows:
With the exception of the above modifications, the
requirements and directives of the original scheduling
4
order shall remain in full force and effect.
Young v. Cook, No. 2:10-0013, sched. ord. at 2 (S.D. W. Va. Feb.
2, 2010).
On March 15, 2011, plaintiffs again supplemented their
November 2, 2010, interrogatory response.
They identified eight
lawyers as fact witnesses, namely, Daniel C. Cooper, Robert P.
Fitzsimmons, Gregory H. Schillace, Robert Bruce Warner, James G.
Bordas, David Romano, Troy Giatras, and Marvin Masters.
These
lawyers were apparently culled from the list of 353 lawyers
provided to plaintiffs by Allstate on October 15, 2010.
Contact
information was provided for the lawyers, along with a summary of the
testimony expected from each.
The lawyer testimony appears to
concern their prior experiences with Allstate in UTPA litigation.
On April 6, 2011, Allstate moved to exclude the eight
lawyer fact witnesses.
It asserts, inter alia, that (1) the
disclosure was untimely, unjustified, and prejudicial, and (2)
the lawyer witnesses were disclosed only after plaintiffs failed
to develop any direct evidence from Allstate supporting the Count
Two UTPA claim.
Plaintiffs note that the bifurcation of Count Two ended
on September 3, 2010, with the entry of a scheduling order on
5
that date.
They point to the language found in paragraph 1 of
that scheduling order, along with the revised scheduling order
entered February 2, 2011, which they construe as effectively
allowing them to serve their Rule 26(a)(1) disclosures up until
the close of discovery.
Inasmuch as they disclosed the names of
the eight lawyers on March 15, 2011, nearly two months prior to
the close of discovery, they assert timely notice.
Plaintiffs
also note that Allstate was the source of information from which
the disclosed lawyers were identified.
They additionally say
that they offered to assist Allstate in contacting the eight
lawyers and arranging for the taking of their depositions.
II.
A.
Governing Standard
Federal Rule of Civil Procedure 26(a)(1) provides
pertinently as follows:
Except as exempted by Rule 26(a)(1)(B) or as
otherwise stipulated or ordered by the court, a party
must, without awaiting a discovery request, provide to
the other parties:
(i) the name and, if known, the address and
telephone number of each individual likely to
have discoverable information--along with the
subjects of that information--that the
6
disclosing party may use to support its
claims or defenses, unless the use would be
solely for impeachment;
Fed. R. Civ. Proc. 26(a)(1).
There is also the obligation to
“timely” supplement Rule 26(a) disclosures and interrogatory
responses.
See Fed. R. Civ. Proc. 26(e).
The failure to make
the required disclosures or supplementation may result in
significant repercussions pursuant to Rule 37(c)(1):
If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified
or is harmless. . . .
Fed. R. Civ. Proc. 37(c)(1).
Harmlessness or substantial justification under Rule
37(c)(1) are ascertained by examining four factors, as restated
recently by our court of appeals:
(1) the surprise to the party against whom the witness
was to have testified; (2) the ability of the party to
cure that surprise; (3) the extent to which allowing
the testimony would disrupt the trial; (4) the
explanation for the party's failure to name the witness
before trial; and (5) the importance of the testimony.
Hoyle v. Freightliner, LLC, No. 09-2024, --- F.3d ----, ---, 2011
WL 1206658, at *4 (4th Cir. Apr. 1, 2011) (quoting Southern
States Rack and Fixture v. Sherwin–Williams Co., 318 F.3d 592,
596 (4th Cir. 2003) (internal quotation marks omitted)).
7
The
court of appeals has “not required [district] courts to expressly
consider each factor when evaluating discovery violations.” See
id.; Carr v. Deeds, 453 F.3d 593, 604 (4th Cir. 2006).
Additionally, the Rule 37(c)(1) “sanction of exclusion. . . does
not require a finding of bad faith or callous disregard of the
discovery rules.”
B.
Id.
Analysis
The court must first ascertain if the March 15, 2011,
disclosure of the eight lawyers was untimely.
The appropriate
starting point for answering that question is the September 3,
2010, scheduling order that revived the previously stayed Count
Two.
The scheduling order, as noted, provides as follows:
The parties shall complete all discovery requests by
December 20, 2010, and all depositions by February 1,
2011. The last date to complete depositions shall be
the "discovery completion date" by which all discovery,
including disclosures required by Federal Rule of Civil
Procedure 26(a) (1) . . . shall be completed.
Young v. Cook, No. 2:10-0013, sched. ord. at 1-2 (S.D. W. Va.
Sept. 3, 2010) (emphasis added).
The revised scheduling order
entered February 2, 2011, which set a discovery completion date
of May 3, 2011, incorporated the substance of the foregoing
paragraph from the September 3, 2010, scheduling order.
8
One might possibly read the underscored language above
to allow Rule 26(a)(1) disclosures up until the February 1, 2011,
discovery deadline, extended to May 3, 2011, by the February 2,
2011, revised scheduling order.
That is a dubious reading, of
course, inasmuch as discovery would close simultaneous with the
disclosure of additional witnesses.
It might be asserted that
plaintiffs understood the fallacy inasmuch as they disclosed the
eight lawyers well in advance of the May 3, 2011, discovery
deadline.
Nevertheless, in light of the potential ambiguity, the
court declines to find the March 15, 2011, disclosure untimely.
It came nearly two months in advance of the close of discovery,
without a clear deadline having been previously established for
Rule 26(a)(1) disclosures following the September 3, 2010,
lifting of the stay as to Count Two.
Also, Allstate was provided
a substantial extension of time in order to respond on October
15, 2010, to plaintiffs’ August 27, 2010, discovery request.
That response, listing 651 civil actions and 353 prosecuting
lawyers, doubtless imposed a significant burden of review on
plaintiffs’ counsel, who nevertheless whittled the substantial
number of lawyers done to eight, again well before the close of
discovery.
9
To the extent that this determination imposes a
hardship upon Allstate, it is given leave to seek a further
modification of the scheduling order to permit the orderly
preparation for, and deposition of, the eight lawyers.
Any such
request should be made no later than May 27, 2011.1
The court, accordingly, ORDERS that Allstate’s motion
to exclude attorney witnesses be, and it hereby is, denied.
The Clerk is directed to forward copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
DATED: May 20, 2011
John T. Copenhaver, Jr.
United States District Judge
In the event that the court did not strike the eight
lawyers as witnesses, Allstate offered this alternative request
in its reply brief:
1
Allstate requests the opportunity to file a Motion for
Summary Judgment on Mr. Young’s claim prior to going
through the extensive discovery on the attorney
witnesses. If no bad faith occurred in Mr. Young’s
claim, then any alleged general business practice is
irrelevant.
(Def.’s Reply at 5-6). Counsel are directed to discuss the
matter promptly. They may present their joint or respective
views on the matter in the event that either party moves for a
scheduling order extension as outlined supra.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?