Bridgham-Morrison et al v. National General Assurance Company, No. 2:2015cv00927 - Document 55 (W.D. Wash. 2016)
Court Description: ORDER granting defendant's 46 Motion to Compel by Judge Richard A Jones.(RS)
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Bridgham-Morrison et al v. National General Assurance Company Doc. 55 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 LAURIE BRIDGHAM-MORRISON and DEREK MORRISON, 11 12 CASE NO. C15-927RAJ Plaintiff, 10 ORDER v. NATIONAL GENERAL ASSURANCE COMPANY, a foreign insurer, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 I. INTRODUCTION This matter comes before the Court on Defendant General Assurance Company’s (“Defendant”) Motion to Compel Plaintiffs’ Answers and for Relief From Deadline. Dkt. # 46. Plaintiffs Laurie Bridgham-Morrison (“Mrs. Bridgham-Morrison”) and Derek Morrison (“Mr. Morrison”) (collectively, “Plaintiffs”) oppose this motion. See Dkt. # 52. This Court has already dealt with extensive discovery issues stemming from this case and it appears that the Parties have disregarded this Court’s repeated requests that they resolve these disputes amicably. See Dkt. # 35 at 1-2; Dkt. # 50 at 10. The Court again reminds the Parties of the need to meaningfully cooperate in discovery (though the deadline for discovery has since passed). See Dkt. # 29. For the reasons set for the below, the Court GRANTS the Motion. 26 27 28 ORDER – 1 Dockets.Justia.com II. 1 BACKGROUND 2 The Court has already provided a background of the case in a previous Order. See 3 Dkt. # 35 at 2-3. In brief, this case involves Mrs. Bridgham-Morrison’s claim for under- 4 insured motorist coverage under Mr. Morrison’s auto insurance policy after she suffered 5 injuries as a result of a car accident caused by another driver. See id. III. 6 LEGAL STANDARD The Court has broad discretion to control discovery. Avila v. Willits Envtl. 7 8 Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011). That discretion is guided by 9 several principles. Most importantly, the scope of discovery is broad. “Parties may 10 obtain discovery regarding any nonprivileged matter that is relevant to any party's claim 11 or defense.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need 12 not be admissible in evidence to be discoverable.” Id. The Court, however, must limit 13 discovery where it is not “proportional to the needs of the case, considering the 14 importance of the issues at stake in the action, the amount in controversy, the parties’ 15 relative access to relevant information, the parties’ resources, the importance of the 16 discovery in resolving the issues, and whether the burden or expense of the proposed 17 discovery outweighs its likely benefit.” Id. IV. 18 DISCUSSION 19 Defendant requests that the Court compel Plaintiffs to provide complete discovery 20 responses to Defendant’s first set of interrogatories and requests for production. See Dkt. 21 # 46 at 5. Additionally, Defendant requests an extension to the time to complete 22 discovery. See id. at 6. Since the Motion was initially filed, it appears that Plaintiffs 23 provided unsigned responses. See Dkt. # 51 (Ferguson Decl.) ¶ 7. 1 It is not clear 24 whether anything has occurred since. 25 26 27 28 1 Plaintiffs request that this Court strike Mr. Ferguson’s supplemental declaration as untimely and prejudicial. See Dkt. # 52 at 4-5. The Court declines to strike the declaration as it only supplemented facts forming the basis for Defendant’s Motion. Certainly Plaintiffs are more aware of the sufficiency of their discovery responses as Defendant is. Furthermore, Plaintiffs provide no authority for striking Mr. Ferguson’s supplemental declaration. ORDER – 2 1 a. Procedural Issues 2 The Court begins with whether Defendant complied with the meet and confer 3 requirements before filing this Motion. Plaintiffs contend that the Motion was premature 4 as the Parties had not yet reached an “impasse,” that Defendant never “scheduled and 5 initiated” a meet and confer, and that the Motion does not contain a “meet and confer” 6 certificate. Dkt. # 52 at 1-2. Plaintiffs are wrong. 7 Local Rule W.D. Wash. LCR 37(a)(1) requires the Parties to meet and confer in 8 good faith – and for the moving party to “include a certification, in the motion or in a 9 declaration or affidavit, that the movant has in good faith conferred or attempted to 10 confer with the person or party failing to make disclosure or discovery in an effort to 11 resolve the dispute without court action.” In addition, that “certification must list the 12 date, manner, and participants to the conference.” Id. 13 Defendant’s Motion contains a certification. See Dkt. # 46 at 5. That certification 14 lists two separate meet and confers regarding the missing responses. See id. (describing 15 meet and confer efforts on December 30, 2015 and January 13, 2016). There is no 16 requirement in the Local Rules or the Federal Rules of Civil Procedure that a moving 17 party “schedule and initiate” a meet and confer with the opposing party. See Fed. R. Civ. 18 P. 37(a)(1); Local Rules W.D. Wash. LCR 37(a)(1). 19 With respect to whether an “impasse” is necessary before bringing a motion to 20 compel, Plaintiffs stand on slightly firmer ground. Some courts in this judicial district 21 have found that a good faith meet and confer prior to filing a motion anticipates such an 22 impasse. See e.g., Smyth v. Merchants Credit Corp., No. C11-1879RSL, 2012 WL 23 5914901, at *1 (W.D. Wash. Nov. 16, 2012); Bennett v. Homeq Servicing Corp., No. 24 C06-874MJP, 2007 WL 3010427, at *1 (W.D. Wash. Oct. 12, 2007). Nevertheless, the 25 Court believes that Defendant properly brought this Motion as all signs indicated that an 26 impasse had been reached. Specifically, it appears that Defendant discussed this issue 27 with Plaintiffs at least three times. See Dkt. # 46 at 5. Nevertheless, the requested 28 ORDER – 3 1 (though still unsigned) discovery responses were not forthcoming until January 21, 2016 2 (see Dkt. # 51 (Ferguson Decl.) ¶ 9), well past the December 23, 2015 deadline for 3 responding (see Dkt. # 47 (Ferguson Decl.) Ex. 1 at 19; Fed. R. Civ. P 33(b)(2)). By 4 January 13, 2016, after having conferred with Plaintiffs multiple times, and with 5 depositions and the discovery deadline fast approaching, Defendant reasonably believed 6 that an impasse had been reached, especially as it had not received substantive responses 7 to its efforts to meet and confer. See Dkt. # 47 (Ferguson Decl.) Exs. 2-6; Dkt. # 29. 8 b. Whether to Compel Production 9 That brings us to the merits of Defendant’s Motion. At this juncture, Plaintiffs 10 have supplied responses, though they appear to be unsigned. See Dkt. # 51 (Ferguson 11 Decl.) Ex. 8. Unsigned interrogatory responses do not comply with the Federal Rules of 12 Civil Procedure. See Fed. R. Civ. P. 33(b)(5) (“The person who makes the answers must 13 sign them.”). Furthermore, as Defendant rightly notes, “[o]ther parties have no duty to 14 act on an unsigned disclosure, request, response, or objection until it is signed, and the 15 court must strike it unless a signature is promptly supplied after the omission is called to 16 the attorney's or party’s attention.” Fed. R. Civ. P. 26(g)(2). Defendant promptly 17 requested signatures. See Dkt. # 51 (Ferguson Decl.) Ex. 9. No signatures appear to be 18 forthcoming. 19 20 Plaintiffs must provide verifications for their interrogatory responses. As such, the Court will GRANT Defendant’s Motion to compel their production. 21 c. Whether to Extend the Discovery Cutoff 22 Finally, Defendant seeks an extension to the discovery deadline to pursue some 23 additional discovery. Specifically, Defendant now seeks to disclose rebuttal reports to 24 expert reports from Plaintiffs’ experts Wayne Boyack and Stephen Strezlec. See Dkt. # 25 54 at 3-4. 26 “[A] schedule may be modified only for good cause and with the judge’s consent.” 27 Fed. R. Civ. P. 16(b)(4). The “good cause” standard primarily considers the diligence of 28 ORDER – 4 1 the party seeking the amendment of the pretrial deadlines. Johnson v. Mammoth 2 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). A party demonstrates good cause 3 for the modification of a scheduling order by showing that, even with the exercise of due 4 diligence, he or she was unable to meet the timetable set forth in the order. Zivkovic v. S. 5 Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). The Court is reluctant to extend discovery in a case that has involved seemingly 6 7 interminable discovery disputes. Nevertheless, it appears that Plaintiffs first provided an expert report from Mr. 8 9 Boyack on January 12, 2016. See Dkt. # 47 (Ferguson Decl.) Exs. 6-7. It is unclear 10 whether Mr. Boyack was previously disclosed as an expert witness but, in any event, he 11 apparently was only then designated as a witness under Federal Rule of Civil Procedure 12 26(a)(2)(B) or (C). In this respect, Defendant is entitled to disclose expert evidence 13 solely to rebut Mr. Boyack’s expert testimony within 30 days of January 12, 2016. See 14 Fed. R. Civ. P. 26(a)(2)(D)(ii). The Court will grant such a brief extension to the 15 discovery deadline because Defendant’s deadline for disclosing rebuttal evidence would 16 fall outside the February 8, 2016 discovery cutoff. See Dkt. # 29. In short, so long as 17 Defendant disclosed a rebuttal to Mr. Boyack’s testimony within 30 days of January 12, 18 2016, that rebuttal evidence will be deemed timely. Finally, Defendant requests yet another extension to the discovery deadline to 19 20 accommodate rebuttal reports to supplemental expert reports from Plaintiffs’ expert 21 Stephen Strezlec. 2 See Dkt. # 54 at 3-4. To the extent that a rebuttal report is necessary 22 to contradict these supplemental reports, the Court will permit this limited extension of 23 the discovery deadline for the same reasons. Despite Defendant’s reasonable diligence, it 24 could not produce rebuttal reports within the current discovery deadline. Defendant is 25 26 27 28 2 Plaintiffs do correctly note that the original Motion did not contain this request. See Dkt. # 52 at 3. Of course, given that Mr. Strezlec’s first supplemental report was not provided until January 20, 2016, Defendant could not have included such a request in its original pleading. See Dkt. # 51 (Ferguson Decl.) ¶ 5. This is far from ideal, but the Court would prefer to end any discovery disputes pending at this juncture. ORDER – 5 1 permitted to disclose a rebuttal report to Mr. Strezlec’s supplemental reports within 30 2 days of their disclosures. V. 3 4 CONCLUSION For the foregoing reasons, the Court GRANTS Defendant’s Motion to Compel. 5 Dkt. # 46. The Court sincerely hopes that this is the end to the unending stream of 6 discovery motions filed in this matter. 7 In brief, the Court ORDERS the following: 8 1. Plaintiffs must serve complete, verified responses to Defendant’s First Sets of 9 Interrogatories and Requests for Production of Documents within ten (10) 10 11 days of this Order. 2. Defendant is granted a brief extension to the discovery deadline in order to 12 disclose expert rebuttal evidence to the expert report of Wayne Boyack and the 13 supplemental reports of Stephen Strezlec. Any rebuttal disclosed within 30 14 days of Mr. Boyack and Mr. Stezlec’s disclosure will be deemed timely by this 15 Court. a. In the event that Defendant has not yet disclosed such rebuttal evidence, 16 17 the Court will permit Defendant to disclose such rebuttal evidence 18 within three (3) days of this Order. b. Finally, to alleviate any prejudice to Plaintiffs, the Court will permit a 19 20 brief extension of the discovery deadline for them to depose any expert 21 disclosed in these reports. The Court anticipates that these depositions 22 will take place no later than March 8, 2016. 23 DATED this 24th day of February, 2016. 24 26 A 27 The Honorable Richard A. Jones United States District Court 25 28 ORDER – 6
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