Arch Insurance Company v. Safeco Insurance Company of America
2:18-cv-01591
W.D. Wash.Dec 5, 2019Background:
- Safeco served interrogatories and requests for production on Arch on August 28, 2019 seeking defense-cost discovery; responses were due 30 days later.
- Arch did not timely respond; parties met and conferred on October 7, 2019 and mediated on October 8 without Arch’s discovery responses.
- Safeco filed a motion to compel on October 14, 2019, seeking compelled responses, waiver of objections, and sanctions (including dismissal and fees).
- Arch produced written responses, objections, and 1,877 pages of documents on October 25, 2019 but withheld/redacted some material and did not provide a privilege log.
- The Court found Arch waived objections by missing the deadline, granted Safeco’s motion to compel as to waiver, denied dismissal as a sanction, and ordered Arch to produce all responsive discovery within 14 days.
- The Court awarded Safeco reasonable expenses for bringing the motion to compel and ordered Safeco to file a motion quantifying attorney fees within seven days.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arch waived objections by failing to timely respond to discovery | Arch argued it ultimately complied by producing responses and documents | Safeco argued late responses constitute waiver of objections (including privilege) | Waiver: Court held Arch waived objections and must produce discovery without objections |
| Whether dismissal is appropriate as a sanction for discovery delay under Rule 37 | Arch: produced discovery and has not disobeyed a court order; no willfulness or bad faith | Safeco: sought dismissal for discovery misconduct | Denied: dismissal too severe; lesser sanctions available |
| Whether dismissal for failure to prosecute under Rule 41(b) is warranted | Arch: has taken affirmative steps (opposed summary judgment, produced discovery) | Safeco: Arch’s limited affirmative discovery supports dismissal | Denied: court declines to dismiss for failure to prosecute |
| Whether Safeco is entitled to reasonable expenses under Rule 37(a)(5)(A) | Arch did not show substantial justification or other circumstances making fees unjust | Safeco: met and conferred and filed motion; received discovery only after motion | Granted: Safeco entitled to expenses; ordered to file a fee motion within 7 days |
Key Cases Cited
- Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992) (untimely discovery objections are waived)
- Davis v. Fendler, 650 F.2d 1154 (9th Cir. 1981) (privilege objections waived if not timely asserted)
- Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206 (9th Cir. 2002) (district court has broad discretion to compel discovery)
- Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091 (9th Cir. 2007) (terminating sanctions are very severe and subject to multi-factor analysis)
- Hyde & Drath v. Baker, 24 F.3d 1162 (9th Cir. 1994) (factors for dismissal as discovery sanction and consideration of less drastic measures)
- Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334 (9th Cir. 1985) (court evaluates willfulness, bad faith, or fault when imposing severe sanctions)
- Wanderer v. Johnson, 910 F.2d 652 (9th Cir. 1990) (factors to weigh before imposing dismissal as a sanction)