Carr v. State Farm Mut. Auto. Ins., Co., 3:15-cv-1026-M

Decision Date07 December 2015
Docket NumberNo. 3:15-cv-1026-M,3:15-cv-1026-M
PartiesWILLIAM ORAN CARR, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE, COMPANY, Defendant.
CourtU.S. District Court — Northern District of Texas
MEMORANDUM OPINION AND ORDER

Defendant State Farm Mutual Automobile Insurance Company ("Defendant" or "State Farm") has filed a Motion to Compel Plaintiff's Discovery Responses and Oral Deposition. See Dkt. No. 14. United States District Judge Barbara M.G. Lynn referred the motion to the undersigned United States magistrate judge for determination. See Dkt. No. 15.

For the reasons and to the extent explained below, the Court GRANTS Defendant's Motion to Compel Plaintiff's Discovery Responses and Oral Deposition [Dkt. No. 14].

Background

This case arises out of an automobile accident from which Plaintiff William Oran Carr complains that he suffered bodily injuries and in which Plaintiff asserts that the driver of the other vehicle was an underinsured motorist. At the time of the accident, the vehicle that Plaintiff was driving was insured under a State Farm personal auto policy that provided Uninsured/Underinsured Motorist ("UM/UIM") coverage subject to certain terms, conditions, requirements, and exclusions. See Dkt. No. 1-5.

Defendant asserts in response that Plaintiff's recovery of UM/UIM benefits is entirely dependent on his ability to prove that he is legally entitled to recover UM/UIM benefits and that States Farm is not obligated to pay any UM/UIM benefits until Plaintiff has established by judgment the amount of his damages, such that the trier of fact must determine the extent of damages due to Plaintiff as a result of his injuries. See Dkt. No. 1-10; Dkt. No. 14 at 2.

In the course of discovery in this case after State Farm removed the case to this Court, Plaintiff served responses and answers to State Farm's First Set of Requests for Production and First Set of Interrogatories. See Dkt. No. 14-1. Plaintiff's responses to Request for Production No. 16 and answers to Interrogatory Nos. 2, 6-15, 18-20, 22 and 23 indicate that Plaintiff will supplement those responses or answers. See id. Plaintiff also raised various objections to Request for Production Nos. 10, 11, 14, and 18 and Interrogatory Nos. 6-12. See id.

State Farm also served a Notice of Oral Deposition on Plaintiff's counsel scheduling Plaintiff's oral deposition for a date on which the parties' counsel had mutually agreed. See Dkt. No. 14 at 3; Dkt. No. 14-1. But, on the noticed date for the deposition, Plaintiff's counsel contacted Defendant's counsel as Defendant's counsel was leaving her office to travel to Plaintiff's counsel's office for the deposition, and Plaintiff's counsel advised that Plaintiff was not in the Dallas area and that they needed to reschedule the oral deposition. See Dkt. No. 14 at 3. State Farm's counselthereafter requested that Plaintiff's counsel provide dates for rescheduling the oral deposition but, as of the motion's filing, Plaintiff's counsel had not responded. See id.; Dkt. No. 14-1.

Under the Court's Scheduling Order and the parties' stipulation extending certain deadlines, the deadline for completion of discovery in this case is December 18, 2015; all motions that would dispose of all or any part of this case, including motions for summary judgment, must be filed by January 4, 2016; and the case is set for jury trial on the Court's three-week docket beginning April 4, 2016. See Dkt. Nos. 8 & 10.

In its motion to compel, Defendant asserts that Plaintiff failed to adequately respond to State Farm's discovery requests and has subsequently failed to amend or supplement his responses, despite State Farm's request to do so, and that Plaintiff has also, thus far, not given his oral deposition, despite requests to reschedule it. See id. at 1. State Farm asks the Court to order Plaintiff to appear for an oral deposition on a mutually agreeable date prior to December 18, 2015 and to fully respond to the requests and interrogatories discussed above one week prior to his oral deposition. See id. at 5-6.

After the motion was referred, the Court ordered Plaintiff's counsel and Defendant's counsel to confer to attempt to resolve the disputes in the motion and then file a joint status report. See Dkt. No. 16. The parties thereafter filed a Joint Status Report that explains that, during a telephone conference, Plaintiff's counsel indicated that his office has attempted to contact Plaintiff in order to obtain information necessary to supplement the discovery responses and available dates for schedulingPlaintiff's oral deposition but that Plaintiff is not responding, and the parties explain that, due to Plaintiff's failure to respond to his counsel, the parties were not able to resolve the issues presented in Defendant's motion to compel. See Dkt. No. 18.

The Court then ordered that Plaintiff file a written response to the motion by December 4, 2015. See Dkt. No. 19. Plaintiff has not done so.

Legal Standards
I. Failure to Appear for Deposition

Federal Rule of Civil Procedure 37(d)(1)(A) provides that "[t]he court where the action is pending may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent - or a person designated under Rule 30(b)(6) or 31(a)(4) - fails, after being served with proper notice, to appear for that person's deposition." FED. R. CIV. P. 37(d)(1)(A)(i). "A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under [Federal Rule of Civil Procedure] 26(c)." FED. R. CIV. P. 37(d)(2). Under Rule 37(d), "[s]anctions may include any of the orders listed in [Federal Rule of Civil Procedure] 37(b)(2)(A)(i)-(vi)," and, "[i]nstead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." FED. R. CIV. P. 37(d)(3).

II. Supplementing Discovery Responses

Federal Rule of Civil Procedure 26(e)(1) provides that "[a] party ... who has responded to an interrogatory, [or] request for production ... must supplement or correct its ... response: (A) in a timely manner if the party learns that in some material respect the ... response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court." FED. R. CIV. P. 26(e)(1).

Federal Rule of Civil Procedure 37(c)(1), in turn, provides that, "[i]f a party fails to provide information ... as required by ... [Rule 26(e)], the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless," and that, "[i]n addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)." FED. R. CIV. P. 37(c)(1).

III. Motion to Compel Discovery Responses

Federal Rule of Civil Procedure 37(a) governs motions to compel discovery responses. Rule 37(a)(3)(B) provides that a party seeking discovery may move for an order compelling production against another party when the latter has failed to produce documents requested under Federal Rule of Civil Procedure 34 or to answer an interrogatory under Federal Rule of Civil Procedure 33. See FED. R. CIV. P.37(a)(3)(B)(iii)-(iv). For purposes of Rule 37(a), "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." FED. R. CIV. P. 37(a)(4).

Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel is granted, "the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees," except that "the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust." FED. R. CIV. P. 37(a)(5)(A).

IV. Allocation of Burdens

The party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). And a party who has objected to a discovery request must, in response to a motion to compel, urge and argue in support of his objection to a request, and, if he does not, he waives the objection. See Sonnino v. Univ. of Kansas Hosp. Auth., 221 F.R.D. 661, 670-71 (D. Kan. 2004). A party resisting discovery must show how the requested discovery was overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. See Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex.2005); see also S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) ("A party asserting undue burden typically must present an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request."). And the "party asserting a privilege exemption from discovery" - here, Plaintiff - "bears the burden of demonstrating its applicability." In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th...

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