United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART SECOND MOTION TO COMPEL
ROBERTO A. LANGE, District Judge.
Plaintiff Laura Dziadek (Dziadek) sued Defendant The Charter Oak Fire Insurance Company, doing business as Travelers (Charter Oak) alleging entitlement to certain insurance benefits and for bad faith refusal to pay. Doc. 1; Doc. 15. This case has a protracted discovery history. This Court has observed that [i]t appears that both parties share blame for the sluggish pace of discovery." Doc. 36 at 1. Dziadek has filed her Second Motion to Compel, Doc. 49, seeking to compel responses to fourteen Requests for Production (Requests) and six Interrogatories. Dziadek also seeks attorney's fees. Doc. 49. Charter Oak opposes the motion. Doc. 58. For the reasons stated below, this Court grants in part and denies in part Dziadek's Second Motion to Compel. This Court denies Dziadek's motion for attorney's fees.
II. FACTS PERTINENT TO DISCOVERY DISPUTE
Dziadek's Second Motion to Compel seeks to compel responses beyond what Charter Oak thus far has provided in "Defendant's Response to Plaintiff's Request for Production of Documents (Third Set), " Doc. 59-2, and "Defendant's Responses to Interrogatories (First Set), " Doc. 59-17. Dziadek made fifty-six requests for production and propounded seventeen interrogatories. Doc. 59-2; Doc. 59-17. Defendant's Responses were provided to Dziadek's former counsel on December 6, 2012. Doc. 59-2 at 31; Doc. 59-17 at 12. This Court's Second Amended Scheduling Order, Doc. 32, was in place at that time. The Second Amended Scheduling Order stated:
1. All discovery, including expert discovery, shall be commenced in time to be completed by May 1, 2013.... Disputes with regard to discovery shall be called promptly to the Court's attention by the making of an appropriate motion and shall not be relied upon by any party as a justification for not adhering to this pretrial schedule.
2. Motions to compel discovery should be filed within 14 days after the subject matter of the motion arises. Motions to compel discovery shall not be filed until the parties have complied with Local Civil Rule 37.1.
Doc. 32 (emphasis in original).
Charter Oak made unjustified objections to the discovery requests, such as objecting because Charter Oak believed that Dziadek's bad faith claim lacked merit and because Charter Oak believed nearly every discovery request was vague, ambiguous, overly broad, irrelevant and not reasonably calculated to lead to admissible evidence. See Doc. 59-2; Doc. 59-17. Charter Oak responded to many of the discovery requests substantively, but withheld some information being sought. On December 27, 2012, Dziadek's former counsel sent Charter Oak's counsel a letter regarding shortcomings in Defendant's Responses. Doc. 51-1. Counsel agreed to a meetand-confer on January 8, 2012, after which Charter Oak disclosed additional documents, supplemented some responses, and maintained objections to others. Doc. 35-1 at 130. The parties met and conferred again on April 16, 2013, after which they exchanged letters blaming each other for a lack of progress. See Doc. 35-1 at 140 (claiming that Dziadek was unwilling to engage in a genuine effort to resolve discovery issues); Doc. 51-3 (claiming that Charter Oak continued to assert improper objections despite Dziadek's efforts to resolve discovery issues). On April 30, 2013, the day before discovery was set to close, Dziadek's former counsel filed Dziadek's Third Motion to Continue, Doc. 34. Dziadek's former counsel stated that they "anticipate and expect... to file a second motion to compel in the coming days." Doc. 34-1 at 2. Charter Oak resisted the continuance. Doc. 35. This Court granted in part Dziadek's Third Motion to Continue, set the new discovery deadline as August 15, 2013, and ordered again that disputes "shall be called promptly to the Court's attention by the making of an appropriate motion" and that "[m]otions to compel discovery should be filed within 14 days after the subject matter of the motion arises." Doc. 36 at 2.
Dziadek's former counsel did not file a second motion to compel within "the coming days" as presaged. See Doc. 34-1 at 2. The next filings related to deposition subpoenas issued by Charter Oak seeking to depose Dziadek's former counsel, which were served on June 25, 2013. Doc. 38. On July 18, 2013, Dziadek's former counsel filed a Motion to Modify Subpoena, Doc. 37. This Court stayed the scheduled depositions of Dziadek's former counsel until after a hearing on the issue could be had because deposing counsel could trigger counsel's disqualification. Doc. 42; Doc. 38. This Court's Order, however, required that, except for the possible depositions of Dziadek's former counsel, "all other discovery shall be completed by August 15, 2013." Doc. 42 at 1.
On August 12, 2013, Dziadek's former counsel filed Dziadek's Fourth Motion to Continue, Doc. 45, which Charter Oak resisted, Doc. 53. On August 15, 2013, the day discovery was to close, Dziadek's former counsel filed a Second Motion to Compel, Doc. 49. On September 5, 2013, this Court held a hearing on all three pending motions-the Motion to Modify Subpoenas, the Fourth Motion to Continue, and the Second Motion to Compel. At the hearing, Dziadek's former counsel recognized that they were fact witnesses on certain matters relating to this case and offered to withdraw as counsel once Dziadek could obtain substitute counsel. Doc. 56 at 1. This Court granted in part Dziadek's Motion to Modify Subpoenas, granted Dziadek's Fourth Motion to Continue, and reserved ruling on Dziadek's Second Motion to Compel until after Dziadek's new counsel could meet and confer with Charter Oak's counsel in an attempt to resolve discovery disputes and obviate the need for a ruling. Doc. 56 at 2.
On October 22, 2013, Dziadek's new counsel filed his notice of appearance. Doc. 57. Shortly thereafter, Dziadek's new counsel and Charter Oak's counsel met and conferred, resolved some discovery issues, failed to resolve other discovery issues, and thereafter resumed briefing Dziadek's Second Motion to Compel. Dziadek's motion seeks to compel discovery of material relating to eleven different issues and requests an award of attorney's fees. Doc. 50 at 2, 52.
On January 29, 2014, after briefing was completed and after this Court had begun its consideration of these issues, Charter Oak filed a Second Memorandum in Opposition, Doc. 66, which is not contemplated by this Court's local rules. See D.S.D. Civ. L.R. 7.1(B). Attached to that Memorandum was an exhibit listing different documents that Charter Oak produced. Dziadek disputes whether Charter Oak has produced all responsive documents. Because the extension of the discovery deadline was at hand, this Court advised counsel informally that an opinion and order was forthcoming that would grant in part and deny in part the motion to compel and would enlarge the discovery deadline further. Thereafter, counsel had a spat over one attorney's response to this Court's email message and wanted to argue discovery issues to this Court. This Court then conducted a telephonic hearing on February 19, 2014, to address the motions ripe for discussion.
A. Timeliness of Motion to Compel
Charter Oak argues that Dziadek's Second Motion to Compel is untimely. Doc. 58. The Scheduling Order stated that "motions to compel discovery should be filed within 14 days after the subject matter of the motion arises" and that disputes regarding discovery "shall be called promptly to the Court's attention." Doc. 32. Charter Oak argues that Dziadek is not in compliance with the Order because she waited over eight months from the time the subject matter of this motion arose before seeking relief. Doc. 58 at 1-2. Dziadek counters that this Court's Scheduling Order did not mandate that motions to compel must be filed within fourteen days of the dispute arising and thus that her motion was timely filed prior to the discovery deadline. Doc. 59 at 8-10. Dziadek also argues that her delay in filing her motion was due to the meet-and-confer requirement and her efforts to resolve the discovery disputes which Charter Oak frustrated. Doc. 59 at 8-10.
Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery. Rule 37 does not contain an outer time limit for when a motion to compel must be filed by in order to be deemed timely. Voter v. Avera Brookings Med. Clinic, No. CIV. 06-4129-KES, 2008 WL 4372707, at *1 (D.S.D. Sept. 22, 2008). Some district courts limit by local rule the time period within which a motion to compel must be filed. See e.g., United States ex rel. Becker v. Westinghouse Savannah River Co. , 305 F.3d 284, 290 (4th Cir. 2002) ("Local Rule 37.01 of the District Court for the District of South Carolina states that [m]otions must be filed within twenty (20) days after receipt of the discovery response to which the motion to compel is directed.'"); Haviland v. Catholic Health Initiatives-Iowa, Corp. , 692 F.Supp.2d 1040, 1044 (S.D. Iowa 2010) (noting that Local Rule 37 of the District Court for the Southern District of Iowa "permits Motions to Compel to be filed up to fourteen days after the close of discovery"). This District has no such rule. Soltesz v. Rushmore Plaza Civic Ctr., No. CIV. 11-5012-JLV, 2013 WL 175802, at *4 (D.S.D. Jan. 16, 2013).
District courts have broad discretion in managing discovery, establishing and enforcing discovery deadlines, and maintaining compliance with discovery and pretrial orders, Williams v. TESCO Servs., Inc. , 719 F.3d 968, 976 (8th Cir. 2013), and may direct in scheduling orders the date by which motions to compel must be filed, Soltesz, 2013 WL 175802, at *4-5; see also Voter, 2008 WL 4372707, at *1 (stating that district courts can set limits on motions to compel in its scheduling order). Ultimately, when deciding the timeliness of a motion to compel, a court must inquire into the "entire complex of circumstances that gave rise to the motion, and what is untimely in one case may not be in another." In re Sulfuric Acid Antitrust Litig. , 231 F.R.D. 331, 333 (N.D. Ill. 2005); see also Haviland , 692 F.Supp.2d at 1044 ("Because no single rule or deadline can encompass the myriad of variations in discovery, . judges are given broad discretion to manage the overall process in the interests of dispatch and fairness.").
Generally, a court "may conclude that a motion to compel is untimely if the movant has unduly delayed." Soltesz, 2013 WL 175802, at *4 (citing 8B Charles A. Wright, et al., Federal Practice & Procedure § 2285 (2d ed. 1994)). When there is no "specific directive in the scheduling order, " in the District of South Dakota, motions to compel may be considered timely if filed before discovery closes, but untimely if filed after discovery closes. Voter, 2008 WL 4372707, at *1; Soltesz, 2013 WL 175802, at *4 ("If a motion to compel is filed prior to the expiration of the discovery deadline, it is generally considered timely."); see also In re Sulfuric Acid Antitrust Litig. , 231 F.R.D. at 332 ("In one regard, however, a line of sorts has been sketched by a series of decisions: motions to compel filed after the close of discovery are almost always deemed untimely.. Greater uncertainty occurs where the motion is made very close to the discovery cut-off date."). In Soltesz, 2013 WL 175802, the scheduling order required that motions to compel "shall" be filed within fourteen days of the dispute's origin. Id . at *4-5. The defendant in Soltesz filed the motion to compel outside of the fourteen-day period. Id . Although the motion was untimely as it was not in "strict compliance" with the scheduling order's "14-day time frame for filing" a motion to compel, Magistrate Judge Veronica L. Duffy of this District nevertheless permitted the untimely motion to proceed because there was "good cause" for the delay. Id . at *5. The delay was not "undue" as the motion was filed just three weeks outside the fourteen-day time frame and the non-moving party did not suffer prejudice. Id . Magistrate Judge Duffy reasoned that a contrary ruling in Soltesz may encourage "parties to file hair-trigger' discovery disputes" and because correspondence between the parties could have misled the moving party to delay in a mistaken belief that production was forthcoming. Id.
The language of this Court's Scheduling Order did not mandate that motions to compel be filed within fourteen days of the dispute, but stated that motions "should" be filed within fourteen days. Dziadek's Second Motion to Compel, filed much more than fourteen days after the dispute arose, thus is not in violation of the language of the Scheduling Order, although it is in violation of the spirit of the Scheduling Order, which required that discovery disputes "shall be called promptly to the Court's attention." Doc. 32. However, because the Scheduling Order's language was not a "specific directive[, ]" the motion may be considered timely if filed before the discovery period closes. Voter, 2008 WL 4372707, at * 1. Dziadek's motion was filed on the final day of the discovery period and is timely.
Dziadek was aware of these disputes as early as December 6, 2012. Her former counsel obtained a continuance while threatening a motion to compel on April 30, 2013. Her former counsel then waited another four months from that date to file her Second Motion to Compel as the discovery window was closing on August 15, 2013. Dziadek is correct in that the requirement to meet and confer "shows that the rules do not encourage hair trigger-motions, " Doc. 59 at 9 (citing Soltesz, 2013 WL 175802, at *4). Nevertheless, timeliness is still an "important consideration[, ]" 8B Wright et al, supra § 2285 (3d ed. 2010), and the meet-andconfer requirement should not be used to justify long delays before bringing motions to compel. See In re Sulfuric Acid Litig. , 231 F.R.D. at 341 ("Nor am I persuaded that the approximately eight-month delay stemmed from the plaintiffs' wish to bring a single, focused motion....'"); Haviland , 692 F.Supp.2d at 1044 ("[T]he Court sees no reason why Plaintiffs could not have upheld their ethical duty to attempt to resolve the discovery conflict without court action, yet still have made this motion at a much earlier date."). Dziadek could have satisfied the meet-andconfer requirement and still raised these issues much more promptly. Under these circumstances, the delay in bringing the motion to compel influences the decision on the propriety of sanctions under Rule 37(a)(5) of the Federal Rules of Civil Procedure and the scope of relief ordered, rather than prompting a refusal to consider the merits of the motion to compel. See 8B Wright et al., supra § 2288 (3d ed. 2010) ("If the motion is granted in part and denied in part the court is given more discretion under Rule 37(a)(5) and may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.").
B. Scope of Discovery
The scope of discovery under Rule 26(b) of the Federal Rules of Civil Procedure is broad. Black Hills Molding, Inc. v. Brandom Holdings, LLC, No. CIV. 12-5051, 2013 WL 6092215, at *5 (D.S.D. Nov. 19, 2013) (citing 8B Wright et al., supra § 2007 (3d ed. 2010)). "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." Hickman v. Taylor , 329 U.S. 495, 507 (1947). A party may "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Relevancy is construed broadly and encompasses "any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Kirschenman v. Auto-Owners Ins., 280 F.R.D. 474, 481 (D.S.D. 2012) (internal quotation marks and citation omitted). Once the requesting party has made its threshold showing that the evidence sought is relevant, the burden shifts to the resisting party who must "show specific facts demonstrating that the discovery is not relevant, or how it is overly broad, burdensome, or oppressive." Id . The mere statement that an interrogatory or request for production was overly broad, burdensome, oppressive, or irrelevant is not adequate to prevail on such an objection. Lillibridge v. Nautilus Ins. Co., No. CIV. 10-4105-KES, 2013 WL 1896825, at *6 (D.S.D. May 3, 2013).
Charter Oak objected to nine of the fourteen Requests for Production and to three of the six Interrogatories at issue here by arguing that the documents sought were irrelevant because Charter Oak did not believe that Dziadek had a reasonable bad faith claim. Doc. 59-2 at 7-11, 24-25, 28-29; Doc. 59-17 at 6, 7-8 (raising the same substantive objection to the Interrogatories as was raised to the Requests). As noted in this Court's Order on Dziadek's First Motion to Compel, "[e]ven if the insurer ultimately paid a claim, it may still be liable under a bad faith claim for unreasonably delaying payment of a claim if the insured suffered compensable loss as a result.'" Doc. 30 at 3 (quoting Lyon v. Bankers Life & Cas. Co., No. CIV. 09-5070-JLV , 2011 WL 124629, at *7 (D.S.D. Jan. 14, 2011)). "[D]iscovery is not to be denied because it relates to a claim or defense that is being challenged as insufficient.'" Alexander v. F.B.I. , 194 F.R.D. 316, 326 (D.D.C. 2000) (quoting 8B Wright et al., supra § 2008 (2d ed. 1994)). Following this Court's Order, Charter Oak initially maintained this objection. See Doc. 51-4 at 6 (noting in a letter to Dziadek's former counsel that "[the claims handler's] personnel files are clearly irrelevant, given the absence of any claim under South Dakota law" because the "claim was paid promptly in full"). Charter Oak appropriately appeared to abandon this objection in its briefing, but Charter Oak's counsel focused a good share of his argument during the February 19, 2014 hearing on why Charter Oak believes Dziadek's bad faith claim to be unfounded. This sort of objection and argument is one for summary judgment or trial; it is not proper as a discovery objection.
C. Discovery Issues
1. Request Number 6 - Organizational Chart
Dziadek seeks to compel production of an organizational chart or other "documents. showing the chain of command of Travelers claims office in Naperville, Illinois, including the personnel who handled or reviewed matters" concerning Dziadek. Doc. 59-2 at 7; Doc. 50 at 16; Doc. 59 at 18;. Dziadek argues, and this Court agrees, that organizational charts and documents showing the chain of command for the years 2009 through 2012 are relevant because the alleged bad faith occurred between 2009 and 2012 and those documents will show the organizational structure of the claims department. Doc. 59 at 19-20.
Charter Oak in its brief does not argue that discovery of such organizational charts would be burdensome and does not contend that the documents sought in Request Number 6 are irrelevant. Rather, Charter Oak represents that no organizational chart exists and ultimately that it produced a "directory for that Unit as of 2011, the relevant time frame...." Doc. 58 at 5. The years 2009 through 2012 are the years during which the alleged bad faith is claimed to have occurred. Charter Oak must produce organizational charts for the Naperville claims office for 2009 through 2012, including those who handled Dziadek's claim if it has any such documents, or alternatively must produce the directory for the claims unit that handled Dziadek's claims for the time frame of 2009 through 2012, if Charter Oak somehow has no organizational charts for those years.
2. Request Number 5 - Personnel Files
a. Claims Handlers and their Direct Supervisors
Request Number 5 seeks the "personnel files of Travelers employees who handled, reviewed, supervised, and/or audited Dziadek's claim, including persons in the chain of command above these individuals up to the head of the claims department." Doc. 59-2 at 6; Doc. 59 at 18; Doc. 59-2 at 7. Specifically, Dziadek requested production in Request Number 5 of the personnel files for the following persons: Faith Styles, Dana Barron, Brian Koerner, Diane Olson, Heather Wilken, Tara Walters, Timothy Westbrook, Amy Hennessy, and Dawn Midkiff. Doc. 59-2 at 6-7; Doc. 59 at 19-29. Dziadek also seeks the personnel files for claims handler Patricia Palaniuk, supervisor Phillip Castignet, and persons "in the chain of command." Doc. 50 at 21. Dziadek now has agreed not to seek the personnel files for administrative personnel Dana Barron, Diane Olson, Heather Wilken, and Tara Walters. Doc. 59 at 22. This section deals with the request for the persons who were involved in the handling or supervising of Dziadek's claim-Faith Styles, Brian Koerner, Timothy Westbrook, Amy Hennessy, Philip Castignet, and Patricia Palaniuk. Subsequent sections will address the discoverability of the personnel file for Dawn Midkiff and personnel files for individuals up the "chain of command."
Faith Styles handled Dziadek's claim in 2009. She was supervised by Timothy Westbrook and Brain Koerner. Doc. 58 at 5-6. Patricia Palaniuk handled Dziadek's claim at the time it was paid, much later than Dziadek desired it to be paid. Doc. 58 at 6. Patricia Palaniuk and Faith Styles reported to Brian Koerner. Doc. 58 at 5-6. Brian ...