MEMORANDUM, OPINION, and ORDER DENYING PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER AND GRANTING DEFENDANT’S MOTION TO COMPEL INTERROGATORY RESPONSES
On October 24, 2006 came the above named Plaintiffs, by Paul Harris, John Wallace, IV, and Joseph Wallace, in person, and the above named Defendant, by John Moustakas, Mary Kostel, and Larry Blalock, in person, for Plaintiffs’ Motion for a Protective Order and Defendant’s Motion to Compel Interrogatory Responses. Testimony was taken from attorneys Paul Harris and Mary Kostel.
I. Introduction
A. Background
This case concerns alleged violations of the West Virginia Unfair Trade Practices Act by Defendant in previous litigation between the parties. The parties engaged in discovery and a dispute arose. Plaintiffs filed a Motion for Protective Order on September 11, 2006. Defendant filed a brief in opposition on September 25, 2006. On September 28, 2006, Defendant filed a Motion to Compel Interrogatory Responses. Plaintiffs filed a Response on October 12, 2006. Defendants filed a Reply on October 23, 2006. This Court held an evidentiary hearing regarding both motions on October 24, 2006.
B. The Motions
Defendants’ Motion to Compel Interrogatory Responses.
C. Decision
Plaintiffs’ Motion for a Protective Order is DENIED. Plaintiffs’ Motion is untimely and even if it were not, Plaintiffs have waived any right to object to Defendant’s interrogatories by failing to make timely objections. This includes objections based upon privilege. Defendant’s Motion to Compel Interrogatory Responses is GRANTED. Plaintiffs shall respond as directed in this opinion within fourteen days of the date of this Order.
II. Facts
1. Plaintiff originally filed this action in the Circuit Court of Ohio County, West Virginia. Plaintiff served interrogatories and requests for productions with the complaint.
2. Defendant served interrogatories and requests for production of documents on Plaintiff on January 11, 2006. The parties eventually reached an agreement that Plaintiff would answer Defendant’s interrogatories by June 30, 2006. Plaintiff requested an extension until July 14, 2006, and Defendant agreed. Plaintiff responded to the interrogatories on July 14, 2006.
3. Defense counsel wrote to Plaintiffs’ counsel on August 1, 2006, describing alleged deficiencies in Plaintiffs’ interrogatory responses. The letter stated an intention by defense counsel to call Plaintiffs counsel on August 9, 2006, to discuss the alleged deficiencies. The letter said defense counsel would assume that time was convenient for discussion unless they heard otherwise. Plaintiffs’ counsel did not participate in the August 9 conference.
4. Defense counsel sent Plaintiffs counsel another letter on August 15, 2006. The letter indicated that because defense counsel had not heard from Plaintiffs’ counsel, defense counsel assumed Plaintiffs counsel was working to correct the alleged discovery deficiencies. It also stated that if defense counsel did not hear from Plaintiffs’ counsel by August 31, 2006, they would assume Plaintiffs’ counsel was refusing to meet and confer to discuss Defendant’s discovery requests and would consider other options to pursue their client’s interests.
5. Plaintiffs’ counsel replied to defense counsel’s correspondence on August 16, 2006. Plaintiffs’ counsel stated they had received defense counsel’s August 1 and August 15 correspondence and would try to provide a more complete response to the discovery requests.
6. Counsel for both sides conferred by telephone on August 28, 2006. Plaintiffs’ counsel raised the issue that it believed the number of interrogatories defense counsel had submitted was excessive.
7. Plaintiffs’ counsel delivered supplemental interrogatory responses to defense counsel on August 31, 2006. Defense counsel found the supplemented responses unacceptable. They wrote to Plaintiffs’ counsel on September 7, 2006, to explain their position. Plaintiffs counsel called defense counsel on September 11, 2006, to further discuss this discovery dispute. The discussion did not produce a resolution.
8. Plaintiff filed the Motion for Protective Order on September 11, 2006.
9. Defendant filed its Motion to Compel Interrogatory Responses on September 28, 2006.
III. The Motions
A. Contentions of the Parties
Plaintiffs ask this Court to grant a protective order pursuant to Federal Rule of Civil Procedure 26(c). They raise four arguments in support of their Motion. Plaintiffs argue (1) Defendant’s interrogatories are too numerous, (2) Defendant has the records from
Defendant requests the Court grant its Motion to Compel. Defendant argues (1) Plaintiffs have waived any objections to the interrogatories, (2) Plaintiffs’ objections on grounds of privilege lack merit, (3) contrary to Plaintiffs’ arguments, the interrogatories do not exceed numerical limits, (4) Plaintiffs’ answers are inadequate, and (5) the Motion to Compel is timely. Plaintiffs dispute the Motion to Compel by arguing (1) it is untimely, and (2) Defendant’s interrogatories exceed the permissible number under the Rules.
B. The Standards
1. Discovery-Scope. “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (in).” Fed.R.Civ.P. 26(b)(1).
2. Discovery-Scope. A party “may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Fed.R.Civ.P. 26(b)(1). In addition, “the discovery rules are given ‘a broad and liberal treatment.’ ” Nat’l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co. Inc.,
3. Discovery-Relevancy. A court must strike a balance between the broad scope of the rules of discovery and the discovery of relevant evidence that is ultimately deemed admissible or inadmissible at trial. The test for relevancy under the discovery rules is necessarily broader than the test for relevancy under Rule 402 of the Federal Rules of Evidence. Fed.R.Civ.P. 26(b)(1) (“relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”). In striking the appropriate balance between these two tensions, “[district courts enjoy nearly unfettered discretion to control the timing and scope of discovery and impose sanctions for failures to comply with its discovery orders.” Hinkle v. City of Clarksburg, West Virginia,
4. Discovery-Duty to Supplement. Once the discovery process has commenced, a party has “a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect 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.” Fed.R.Civ.P. 26(e)(2).
5. Discovery-Duty to Respond Fully and Completely-No Gamesmanship. Parties must respond truthfully, fully and completely to discovery or explain truthfully, fully and completely why they cannot re
6. Discovery-Interrogatories. Federal Rule of Civil Procedure 33 governs interrogatories. It states that “Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable.”
7. Discovery-Objections to Interrogatories. All objections must be stated with specificity and any objection not raised is waived. Fed.R.Civ.P. 33(b)(4). “Mere recitation of familiar litany that interrogatory is ‘overly broad, burdensome, oppressive, and irrelevant’ ” does not suffice as specific objection. Momah v. Albert Einstein Medical Center,
8. Discovery-Motion for Protective Order. Pursuant to Federal Rule of Civil Procedure 26(c), a party called upon to answer discovery may move the Court for a protective order to avoid “annoyance, embarrassment, oppression, or undue burden or expense.” The moving party must certify he has attempted to resolve the dispute without judicial action. Id. If the Court finds the Motion meritorious, it may order that the party requesting discovery not have the material, have discovery only upon certain terms, have discovery by a different method, have discovery only upon limited matters, have discovery with only certain persons allowed to access the material, have a deposition opened only upon court order, not have a trade secret opened to the public, or that the parties file simultaneous discovery of specified material that only a court order will open. Id. The moving party bears the burden of showing good cause why the protective order should be granted. Lohrenz v. Donnelly,
9. Discovery-Interrogatories-Motion to Compel. Motions to compel responses to interrogatories are governed by Federal Rule of Civil Procedure 37(a)(2)(B). This Rule provides that if “a party fails to answer an interrogatory submitted under Rule 33 ... the discovering party may move for an order compelling an answer.” Id.
C. Discussion
I.
The Motion for a Protective Order
The Court first addresses Plaintiffs’ Motion for a Protective Order. Plaintiffs ask the Court to grant the order to protect them from Defendant’s continuing discovery requests. Defendants ask the Court to deny the order. Each party has raised several arguments for or against the order, as noted above.
The Court first considers whether the Motion is timely. Federal Rule of Civil Procedure 26(e) does not contain any explicit time limit for filing a motion for a protective order. There are, however, implicit limitations providing a motion must be timely. Brittain v. Stroh Brewery Co.,
The instant Motion is clearly untimely under this standard. Defendants served the interrogatories giving rise to this protective order on January 11, 2006. By mutual agreement of the parties, Plaintiffs had until July 14, 2006, to answer. Plaintiffs answered on that date. For Plaintiffs’ Motion to be timely, they had to file it by July 14. IBM Corp.,
Even if this Motion were not untimely, it would still fail because Plaintiffs have waived their right to object to Defendant’s interrogatories by not timely raising their objections. Federal Rule of Civil Procedure 33(b)(4) states that “All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.” “Both the language of Rule 33 and its promulgation history suggest that grounds for objection must be stated in a response filed within the period allowed for response, and that objections sought to be interposed later are waived unless the waiver is excused for good cause.” Safeco Ins. Co. of Am. v. Rawstrom,
In Antico v. Honda of Camden,
The Court concludes Plaintiffs have waived their right to object to Defendant’s interrogatories by failing make timely objections. As mentioned above, Defendant served their interrogatories on Plaintiff on January 11, 2006. A joint agreement of the parties allowed Plaintiffs until July 14, 2006, to respond. Plaintiffs timely responded on that date. In their answers, Plaintiffs made no objections whatsoever. Therefore, unless the Plaintiffs can show good cause for the failure to raise the objections they now seek to assert as a basis for their protective order, the Motion must be denied. Safeco Ins. Co. of Am.,
The Court is aware that waiver regarding privilege is a different matter. Plaintiffs asserted privilege in their supplemental answers to interrogatories two, three, and four. Assertions of privilege are governed by Rule 26(b)(5). That Rule provides that when a party refuses to answer an interrogatory on ground of privilege, he must “make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Fed.R.Civ.P. 26(b)(5).
There is a split of authority regarding whether claims of privilege not timely asserted are waived. Some courts hold the failure to timely assert the privilege results in waiver. See, e.g., Ramirez v. County of Los Angeles,
(1) the length of the delay ... (2) the reason for the delay ... (3) whether there was any dilatory or bad faith action on the part of the party that failed to raise the objection properly; (4) whether the party seeking discovery has been prejudiced by the failure; (5) whether the ... request was properly framed and not excessively burdensome; and (6) whether waiver would impose an excessively harsh result on the defaulting party.
Id.
The Court declines to decide whether the failure to assert timely objections based on privilege should automatically waive the privilege, for it concludes that even under the test more friendly to Plaintiffs, any grounds of privilege have been waived. When Plaintiffs finally responded to the interrogatories and failed to state any grounds of privilege, they had been in possession of the interrogatories for over six months. That is certainly enough time to formulate a privilege objection.
Since the Court concludes Plaintiffs Motion for a Protective Order is not timely and that Plaintiffs have waived their right to object to Defendant’s interrogatories by fading to timely raise any objections, either one of which is sufficient to deny the Motion, the Court declines to consider the other arguments raised by the parties. Plaintiffs’ Motion for a Protective Order is accordingly DENIED.
II.
The Motion to Compel
The Court next considers whether Defendant’s Motion to Compel should be granted. As noted above, the Court finds Plaintiffs have waived their right to object to Defendant’s interrogatories by failing to raise timely objections. This includes objections based on privilege. Therefore, when considering Defendant’s Motion to Compel, the Court will only consider whether the Motion is timely and whether Plaintiffs’ answers are complete as already stated.
The first issue is whether Defendant’s Motion is timely. Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery. Since the issue in this case concerns interrogatories, the applicable rule is Rule 37(a)(2)(B). The Rule permits a party to seek a motion to compel after it submits interrogatories under Rule 33 and the receiving party “fails to answer.” Id. In that case, “the discovering party may move for an order compelling an answer.” Id. While Rule 37 does not contain any time limit for Sling motions to compel, the applicable Local Rules do. Local Rule 37.02 states that
A motion to compel, or other motion in aid of discovery, is deemed waived if it is not filed within thirty days after the discovery response or disclosure requirement sought was due, which date is determined in accordance with a rule or by mutual agreement among the parties, unless such*224 failure to file the motion was caused by excusable neglect or by some action of the non-moving party. In any event, the moving party must show good cause to delay the trial or modify the scheduling order.
Hence, the Local Rule specifies that a motion to compel must be filed within thirty days after the requested discovery is due. Id. If the requesting party does not file the motion until after that time, the party has waived his right to any material he may have obtained from the request, unless it can show good cause for the delay. Id.
Federal Rule 33(b)(3) provides that unless the court or parties specify otherwise, a party served with interrogatories must respond within thirty days. If a party served with interrogatories does not respond by that time, the serving party must file a motion to compel within an additional thirty days (i.e., within 60 days from the initial service), or else waive his right to compel answers.
This Court has discretion to weigh the excuse offered by a party failing to timely file his motion to compel in order to avoid strict application of the Rule. This discretion allows the Court to avoid what may constitute overly “technical” applications of the Rule. Mordesovitch v. Westfield Ins. Co.,
Defendant did not file its Motion to Compel within the formal deadline imposed by the Rules. Plaintiffs filed their answers to Defendant’s interrogatories on July 14, 2006. Defendant therefore had until August 16, 2006, to file its Motion to Compel.
The events preceding the filing of the two motions at issue here may prove useful in determining whether Defendant may present a valid excuse. Defendant’s counsel sent Plaintiffs’ counsel a letter on August 1, 2006, discussing alleged deficiencies in Plaintiffs’ answers and proposing a telephone conference on August 9. The letter indicated a willingness to reschedule the August 9 conference if the time was not convenient for Plaintiffs’ counsel and invited Plaintiffs’ coun
The Court concludes the foregoing events reveal Defendant’s counsel had a valid excuse for not filing its Motion to Compel within the apparent deadline, thereby making its Motion timely. Defense counsel contacted Plaintiffs’ counsel only sixteen days after they served their answers regarding the perceived deficiencies. Defense counsel asked Plaintiffs’ counsel to discuss the matter on August 9 and invited them to suggest an alternative day. When Plaintiffs’ counsel did not respond, defense counsel was justified in believing the August 9 conference would occur and not taking further action until it did not.
Defense counsel continued to make efforts to contact Plaintiffs’ counsel after the failed August 9 conference. When Plaintiffs’ counsel finally responded on August 16 (still within the filing deadline for the Motion to Compel) and stated they were preparing supplemental responses, defense counsel prudently chose to await the additional responses. The serving party should not run to court when the answering party states it will prepare additional responses. The Federal Rules reflect this policy of asking counsel to resolve discovery disputes among themselves. Avent v. Solfaro,
In short, the facts reveal a pattern of behavior by defense counsel in an effort to avoid bringing this matter before the Court. The Rules require and therefore the Court encourages such conduct. The delay in filing the Motion was due to negotiations with opposing counsel. Defense counsel should not be faulted for complying with the Rules. Therefore, the delay is excusable and the Motion to Compel is timely.
Finally, the Court will examine the sufficiency of Plaintiffs’ answers and supplemental answers to the interrogatories. Defendant concedes that with the supplemental answers, Plaintiffs’ answers to interrogatories one through seven are sufficient. Defendant only asks the Court to compel answers to interrogatories eight through fourteen. Defendant argues the answers are insufficient under Rule 33(d). Specifically, Defendant argues that Plaintiffs should not be allowed to refer to documents when the in
Parties may serve interrogatories regarding the factual allegations made by their opponents. Cable & Computer Tech. v. Lockheed Saunders, Inc.,
Federal Rule of Civil Procedure 33(d) permits a party to answer an interrogatory by reference to documents in certain circumstances. The Rule provides that
Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
Fed.R.Civ.P. 33(d). An interrogatory answer merely referencing documents is appropriate for “requests requiring compilation or analysis, accomplished as easily by one party as another, or where neither side has clear superiority of knowledge or familiarity with the documents.” United Oil Co. v. Parts Assocs., Inc.,
Where a party validly chooses to respond by referencing records, he may not simply state that he has already produced the information. Herdlein Tech., Inc. v. Century Contractors, Inc.,
Interrogatory eight called for Plaintiffs to give details regarding any settlement offers they made to Valley Supply Company in the underlying litigation and any responses received. It also called for Plaintiffs to identify any documents relating to the requested information. Plaintiffs responded that the information is contained in documents already provided to defense counsel. This is insufficient. Herdlein Tech., Inc.,
Interrogatory nine asked Plaintiffs to identify all documents and communications they “received from Valley Supply Company or its insurers ... or any other source relating to any insurance coverage or policies that provided coverage or defense or potentially provided coverage or defense for Valley Supply Company for your claims in the Underlying Action.” Plaintiffs responded they had already provided this information. This is an inadequate response. Herdlein Tech, Inc.,
Interrogatory ten asked Plaintiffs to state facts supporting their claim that liability in the underlying action was relatively clear and became certain at one point and to identify related documents. This factual information requires the special subjective knowledge of Plaintiffs. United Oil Co.,
Interrogatory eleven called for Plaintiffs to state the factual basis for its claim that Defendant violated the West Virginia Unfair Trade Practices Act so as to indicate a general business practice. It called for Plaintiffs to name specific acts (including dates), the person who Defendant committed these acts against, and the provisions of the West Virginia Code it violated. It also asked Plaintiffs to identify documents related to the response. The information at issue concerns the subjective knowledge of Plaintiffs as it forms the basis for part of their complaint. United Oil Co.,
Interrogatory twelve asked Plaintiffs to provide information regarding their contention that Defendant conducted an inadequate investigation into the claims involved in the underlying action. This again calls for the subjective knowledge of Plaintiffs since it asks to know what they consider an inadequate investigation. United Oil Co.,
Interrogatory thirteen asked Plaintiffs to state the facts they claim support their allegation that Defendant acted maliciously and to identify related documents. Plaintiffs responded that they believed Defendant willfully delayed providing insurance policy information and making settlement offers, even though they knew some of the Plaintiffs had health problems. Every allegation must have factual support prior to filing and Defendant may inquire as to those facts. Morris,
Interrogatory fourteen asked Plaintiffs if they contended Defendant violated the West Virginia Unfair Trade Practices Act in any way other than failing to reasonably investigate Plaintiffs’ claims and settle the claims earlier than they ultimately settled. It also asked Plaintiffs to identify documents relating to the response. Plaintiffs responded that Defendant did not provide policy limit information until shortly before trial. Although this interrogatory certainly deals with the subjective beliefs of Plaintiffs and therefore requires a written response rather than merely reference to documents, the statement that Defendant failed to give Plaintiffs policy information represents such a response. United Oil Co.,
For the foregoing reasons, Defendant’s Motion to Compel is GRANTED. Plaintiffs shall respond as directed above. Consistent with Local Rule of Civil Procedure 33.01(c), Plaintiffs shall have fourteen days from the date of this Order to serve their responses.
TV. Decision
Plaintiffs’ Motion for a Protective Order is DENIED. Plaintiffs Motion is untimely and even if it were not, Plaintiffs have waived any right to object to Defendant’s interrogatories by failing to assert timely objections. This includes objections based upon privilege. Defendant’s Motion to Compel Interrogatory Responses is GRANTED. Plaintiffs shall respond as directed in this opinion within fourteen days of the date of this Order.
Any party may, within ten (10) days after being served with a copy of this Order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the District Court Judge of Record. Failure to timely file objections to the Order set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Order.
The Clerk of the Court is directed to provide a copy of this Order to parties who appear pro se and all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.
Notes
. DocketNo. 54
. Docket No. 58
. This court recognizes the United States Court of Appeals for the Fourth Circuit disfavors citation to unpublished opinions. It recognizes the reasons for this and acknowledges them.
. The Court recognizes the initial responses were timely by agreement of the parties and if Plaintiffs had raised a privilege objection in their answers it would have been timely.
. The Court notes the Federal Rules normally add three days to the time a party has to respond. Rule 6(e) states that "Whenever a party must or may act within a prescribed period after service and service is made under Rule 5(b)(2)(B), (C), or (D), 3 days are added after the prescribed period would otherwise expire.” Rule 5(b)(2)(B) speaks of mailing service and (D) speaks of service by any means other than hand delivery or leaving service with the clerk of the court if the person has "no known address.” Hence, when a party makes service by mail, fax, e-mail, etc., three days are added to the time the served party has to respond.
. This date comes from adding thirty days to July 14, 2006, as provided in Rule 33(b)(3), and an additional three days under Rule 6(e). See note 4 for why three additional days are added.
. At oral argument. Plaintiffs’ counsel testified he found the August 1 letter insulting for setting a meeting date without first discussing the time with him. The letter was simply a statement of alleged deficiencies in discovery responses and an invitation to discuss the matter in the hope of resolving it without court action. Defense counsel indicated a willingness to change the date if Plaintiffs’ counsel found August 9 inconvenient. The Rules require and therefore the Court encourages such conferences.