The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS'
MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
AND MOTION FOR SANCTIONS
[Docket No. 44]
INTRODUCTION This matter is before the court pursuant to a complaint alleging negligence, loss of consortium, and property damage by plaintiffs Pierre Couture and Linda V.M. Beauparlant, against defendant Nicki L. Anderson arising out of an August 2, 2008, motorcycle accident in South Dakota. See Docket No. 1. Pending before the court is a motion to compel production of documents and a motion for sanctions to exclude exert testimony and dismiss claims [Docket No. 44] filed by Mr. Couture and Ms. Beauparlant arising from a dispute between the parties regarding production of certain documents. The district court, the Honorable Jeffrey L. Viken, referred the motion to this magistrate judge for decision pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 52.
The facts pertinent to the motion pending before this court are as follows. On or about August 2, 2008, Mr. Couture was driving a motorcycle, owned by his wife Linda Beauparlant, on Nemo Road, in Pennington County, South Dakota. See Docket No. 1 at ¶ 5. Nemo Road is a two-lane highway.
Mr. Couture was traveling westbound on Nemo Road toward Rapid City with a group of friends who were attending the annual Sturgis Motorcycle Rally.
Id. at ¶ 6. Ms. Anderson, who was also traveling with friends, was driving a motorcycle, traveling eastbound on Nemo Road. Id. at ¶ 7. At some point Mr. Couture and Ms. Anderson were involved in a motorcycle/motorcycle accident.
A. Facts Relating to Safeco's Accident Reconstruction Report In a February 12, 2009, letter from Safeco to SGI insurance (Mr. Couture's insurance company), Safeco stated:
Based on the results of our thorough investigation, which included an independent accident reconstruction, we have determined Mr. Couture was liable for this accident and therefore his negligence exceeded the South Dakota threshold. We will be denying liability on behalf of Nikki Anderson for any damage or injury claim you or your insureds may present. As the reconstruction report was obtained through the course of our investigation, it is considered work product of our claim file and will not be released.
See Docket No. 49-14 at pages 3-4 (emphasis added).
On April 28, 2010, plaintiffs Pierre Couture and Linda Beauparlant filed this action in this court against Nicki Anderson, alleging that Ms. Anderson was negligent and caused the accident. See Docket No. 1. Ms. Anderson filed an answer denying responsibility for the accident, and asserted with her husband, Mark Anderson, a counterclaim against Mr. Couture, alleging that Mr. Couture was negligent and caused the accident. See Docket No. 13.*fn1
On August 13, 2010, Mr. Couture served his first set of interrogatories and first request for production of documents on Mr. and Ms. Anderson. On September 18, 2010, Mr. Anderson served his answers and on September 20, 2010, Ms. Anderson served her answers. Subsequently, on December 7, 2010, both the Andersons were deposed.
In both Ms. Anderson's and Mr. Anderson's answers to the interrogatories and depositions, they made reference to a Safeco accident reconstruction report in support of their view of the evidence and liability. That Safeco accident reconstruction report has never been provided to plaintiffs.
In response to Interrogatory No. 13, which asked for the facts Mr. Anderson was basing his claim of liability on, Mr. Anderson answered under oath that he was relying on "reconstructions reports." See Docket No. 49-2 at page 5. In response to Interrogatory No. 16, which asked Mr. Anderson whether he had any knowledge of any "examination, inspection, tests, experiments or other studies" made by an expert for the purposes of arriving at a conclusion or opinion, Mr. Anderson answered under oath that such reports did exist in the form of a "reconstruction of the accident done by the insurance company." Id. at page 6. Finally, in response to Interrogatory No. 25, requesting the identity of each document which may be used as an exhibit during trial, Mr. Anderson responded that the "accident reconstruction may be used." Id. at page 10. Mark Anderson swore these answers to be true on September 17, 2010. Id. at page 14.
With regards to Ms. Anderson's answers, in response to Interrogatory No. 7, which asked whether Ms. Anderson's was denying responsibility or negligence, she stated under oath that her denial of responsibility and negligence rested in part on an independent report from the insurance company indicating that she was not at fault. See Docket No. 49-3 at page 3. In response to Interrogatory No. 19, which asked whether Ms. Anderson had any knowledge of any "examination, inspection, tests, experiments or other studies" made by an expert for the purposes of arriving at a conclusion or opinion, Ms. Anderson stated under oath that she "believe[d] Safeco conducted an independent accident reconstruction." Id. at page 6. Ms. Anderson also stated under oath that she "believe[d] Safeco conducted an independent accident reconstruction" and that she had "received a letter from Safeco indicating [that their report] was in her favor." Id. at page 6. Ms. Anderson swore these answers were true on September 15, 2010. Id.
Additionally, Ms. Anderson testified under oath at her deposition on December 7, 2010, that Safeco had performed an investigation and sent her a letter noting that "after their investigation, [Safeco] found Mr. Couture at fault." See Docket No. 49-5 at pages 5-6 (deposition page 34: lines 18-25; page 35: lines 1-25; page 36: line 1). Ms. Anderson testified that Safeco stated in its letter that there was an accident reconstruction report, but that Safeco was keeping the report. Id. Ms. Anderson testified that she never saw the report herself. Id.
B. Facts Relating to Photographs Used As Exhibits at Rybak Deposition On March 9, 2011, South Dakota Highway Patrol Trooper Robert Rybak was deposed. See Docket No. 49-9. During Trooper Rybak's deposition, defense counsel produced photographs and questioned Trooper Rybak on these photographs. Id. at pages 2-3. Defense counsel had not previously disclosed these photographs to plaintiffs, although plaintiffs had previously served Nicki Anderson with discovery requests for any and all photos that defendant had in her possession or caused to be taken. See Docket No. 49-3. Plaintiffs' counsel requested that defense counsel lay evidentiary foundation for the photographs. See Docket No. 49-9 at page 2. Defense counsel responded that he would, however no foundation was ever provided. Although no foundation was ever provided for the photographs, defense counsel continued to question Trooper Rybak during the deposition regarding the photographs.*fn2 Id. at pages 2-3.
C. Communications Between Counsel Regarding the Discovery On February 3, 2011, plaintiffs' counsel wrote a letter to defense counsel seeking a copy of the Safeco accident reconstruction report referenced in the 2009 Safeco letter, and relied upon by both Mr. and Ms. Anderson in discovery. See Docket No. 49-6. Defense counsel responded on February 9, 2011. See Docket No. 49-7. Notably, defense counsel did not deny the existence of the Safeco accident reconstruction report. Id. Instead, defense counsel refused to produce the report, asserting that it was prepared in anticipation of litigation, privileged as attorney work product, and disclosed mental impressions, conclusions, opinions, or legal theories of the defendant and her attorney. Id.
On February 17, 2011, plaintiffs' counsel again requested a copy of the Safeco accident reconstruction report. See Docket No. 49-8. Plaintiffs' counsel noted that the Safeco accident reconstruction report existed in late 2008 or early 2009, well before April 28, 2010, the date plaintiffs initiated this lawsuit. Id. Plaintiffs' counsel asserted that Safeco's accident reconstruction report would not have been prepared in anticipation of litigation nor would it be covered as attorney work product. Id.
On March 10, 2011, plaintiffs' counsel faxed defense counsel a letter addressing the nondisclosed exhibits presented at Trooper Rybak's deposition. See Docket No. 49-10. In the letter, plaintiffs' counsel suggested that these photographs appeared to be from the Safeco accident reconstruction report, which defense counsel had previously refused to provide. Id. Plaintiffs' counsel also referenced defense counsel's failure to provide a privilege log with any of defendant's prior assertions. Id. In addition, plaintiffs' counsel requested to "meet and resolve the dispute before seeking relief from the court" and provided times that counsel was available to meet. Id. Defense counsel did not respond to the March 10 letter.
On March 17, 2011, plaintiffs' counsel sent another letter to defense counsel "again attempting to set a meeting to resolve [the] dispute before filing a motion to compel with the Court." See Docket No. 49-11. On March 22, 2011, defense counsel provided a two-sentence reply to plaintiffs' letter indicating that the "accident investigation commissioned by Safeco was not the source [of the] pictures [defense counsel] used nor did it result in the production of any type of report." See Docket No. 49-13. The response letter also indicated that "Safeco utilized the services of Larry Smiltneek at MRA Forensic Sciences to investigate this accident but no report was produced." *fn3
On March 23, 2011, plaintiffs' counsel faxed a responsive letter again requesting a meeting with defense counsel. See Docket No. 49-14. On March 25, 2011, plaintiffs' counsel received a letter from defense counsel addressing the Safeco report. See Docket No. 49-15. The letter from defense counsel relayed that Safeco had no report. Id. Defense counsel noted that what defendants had referred to as a "reconstruction" was what defense counsel would refer to as an "investigation." Id. Defense counsel stated that he asked Safeco to check all files and to verify that no such report actually existed. Id. Defense counsel noted that "as to matters concerning any additional opinions of experts, I will produce those in accordance with the scheduling order on file." Id.
On April 1, 2011, plaintiff's counsel again requested a meeting to resolved the disputes, noting that this was the fifth attempt to do so. See Docket No. 49-16. Defense counsel e-mailed plaintiff on April 12, 2011, in response to plaintiffs' counsel request to meet and confer. See Docket No. 49-17. Defense counsel again indicated that "Safeco representative's use of the term 'reconstruction' was a misnomer when in fact no such reconstruction was done. Instead, it would be best called an evaluation by Safeco which, it is my understanding, included a review of the accident scene and miscellaneous reports in anticipation of litigation." Id. Defense counsel also noted that he did "not believe that the documents reviewed contained anything which [was] not currently in [plaintiffs] possession." Id. Defense counsel also indicated that "the pictures [used at Trooper Rybak's deposition] and their significance, foundation, etc. [would] be disclosed pursuant to the Court's order on expert disclosure." Id. Despite repeated requests, plaintiffs have never been provided with the Safeco accident investigation/report or the photographs used at Trooper Rybak's deposition. See Docket No. 45 at page 5.
The District Court's order [Docket No. 32] granting an extension of time and modifying the court's scheduling order ordered that "the identity of an reports from retained experts under Rule 26(a)(2) shall be due from both parties by July 15, 2011." On July 21, 2011, plaintiff faxed defense counsel a letter asking defendant to disclose expert witnesses and reports by the end of that week. See Docket No. 49-18. Defendant did not designate experts until July 26, 2011, after the extension of time offered by plaintiffs in the July 21, 2011, letter. See Docket No. 40. At the time defendant designated her expert, defendant's designation provided no written report from the designated expert, Brad Booth.
Brad Booth's expert report was subsequently disclosed to plaintiffs only after plaintiffs' motion to compel and for sanctions was filed. See Docket No. 50-2. However, defendant has never provided to plaintiffs any accident reconstruction report from Safeco or Mr. Smiltneek nor has defendant provided plaintiffs with the photographs used during Trooper Rybak's deposition.
As a result, the plaintiffs filed this motion to compel production of documents and for sanctions, requesting that this court compel the production of the Safeco reports and the photographs used by defense counsel during Trooper Rybak's deposition. See Docket Nos. 44 and 45. Plaintiffs also asks this court to exclude testimony and witnesses, to dismiss the Andersons' counterclaim and third-party ...