Ruling on Defendant’s Motion to Compel
This action is primarily an indemnification/subrogation dispute between two insurance companies. On October 23,1994 a vehicle driven by John Pruden (“Pruden”) and
On January 2, 2006 thе defendant, Horace Mann, served on the plaintiff, Nationwide, requests for production, interrogatories and requests for admission. By joint stipulation, see Fed.R.Civ.P. 29, the deadline for plaintiffs response was extended to February 20, 2006. The plaintiff did not respond until March 17, 2006. Although tardy, Nationwide appears satisfied with all of the responses received save for those to productiоn requests 9 and 18 and interrogatory 18. As to these disputed discovery requests Horace Mann levied a number of objections which, inter alia, asserted attorney-client privilege and/or work-product protection. Nationwide argues that all of Horace Mann’s asserted objections were waived when it failed to respond within the time allotted and has thus moved for an order сompelling Horace Mann to respond fully to the disputed discovery requests. Defendant’s motion [Dkt.#74] is GRANTED.
A. Discussion
The disputed production requests and interrogatory are as follows:
[Production Request 9]
Produce all оf your files, documents, communications, correspondence, and the like concerning the Bad Faith Action, including, but not limited to:
• all documents that concern your settlement of the Bаd Faith Action with Vicki Benton;
• all internal memoranda, communications, and assessments concerning the Bad Faith Action;
• all privileged memoranda with your counsel, Mulvey, Oliver & Gould, concerning the Bad Faith Action.
Answer: Plaintiff objeсts to this request as it is vague, overbroad and unduly burdensome. Plaintiff further objects to this request as it requires disclos[ure] of documents that are protected from disclosure by the attorney-client privilege and work product doctrine.
[Production Request 18]
Produce all communications and correspondence between you and any attorney at Mulvey, Oliver & Gould concerning the Vicki Benton Action or the Bad Faith Action.
Answer: Plaintiff objects to this request as it is vague, overbroad and unduly burdensome. Plaintiff further objects to this request, as it requires Plaintiff to produce documents that arе protected from disclosure by the attorney-client privilege and work product doctrine.
[Interrogatory 18]
State the legal and factual basis for your payment of $700,000 to Vicki Benton to settle thе claims asserted against you in the Bad Faith Action.
Answer: Plaintiff objects to this interrogatory, as it seeks the mental impressions, conclusions, opinions and legal theories of Plaintiff and its cоunsel concerning the litigation in the Bad Faith Action. As such, the information sought is protected by the attorney-client privilege.
(Def.’s Mem. Supp. Ex 7.)
“The party upon whom the interrogatories have been sеrved shall serve a copy of the answers and objections if any within 30 days after the service of the interrogatories. A shorter or longer time period may be ... agreed to in writing by the pаrties subject to Rule 29.” Fed.R.Civ.P. 33(b)(3). In this
Rule 34, which addresses requests for the production of documents, does not contain an automatic waiver provision for untimely objections as found in Rule 33(b)(4). Despite the absence of such a prоvision, courts have reasoned that a Rule 33(b)(4) type waiver should be implied into all rules involving the use of the various discovery mechanisms. Byrd v. Reno, No. 96-2375(CKK)(JMF),
In the instant ease the plaintiff filed objections twenty-two days late. While the tardiness itself would be sufficient grounds to deеm plaintiffs objections waived, the court may have been inclined to give the plaintiff the benefit of the doubt in light of the fact that the delay was not egregious and that a court’s decisiоn to consider a claim of attorney-client privilege waived should be done only after careful thought. See First Sav. Bank F.S.B. v. First Bank Sys. Inc.
The court further finds that Horace Mann has not shown good cause why their untimely objections should be excused. Defendant offered the following in the way of an explanation, “[t]he slight delay in responding was nоt a willful or intentional act by Horace Mann, but rather, occurred due to the fact that Horace Mann needed additional time to review its documents to ensure it accuratеly responded to Defendant’s requests.” (Def.’s Reply Mem. at 4.) The excuse is unpersuasive. If plaintiff needed more time to respond to the discovery requests it should have either contacted the defendant to obtain its consent to an extension or, if defendant was unwilling to acquiesce, apply to the court to for an extension of time to reply. Further, it apрears from representations made by the defendant that Horace Mann has offered a number of different explanations for its tardiness. {See Def.’s Reply Mem. at 4-5.) The court also agrees with Nationwide’s argument that Horace Mann’s explanation does not “excuse Horace Mann’s failure to provide timely., written objections [] to the requests. If Horace Mann wеre objecting on the basis of attorney-client privilege, it would
Finally, the court notes that at times good cause to excuse untimely objections can be found simply from the nature of the discovery requests. For example, in Byrd the court surmised that the good cause provision of Rule 33(b)(4) exists “lest a federal court be compelled to order the production оf every piece of paper in the Pentagon because of a tardy objection to a request to produce them.”
B. Conclusion
Based on the foregoing discussion defendant’s Motion to Compel [Dkt. #74] is GRANTED. The plaintiff is ORDERED to provide responses to the discovery requests in question within fifteen days of this ruling. At the conclusion of all proceedings, on application, the court will consider the amount of attorney’s fees, if any, that should be awarded in connection with this motion. See Fed.R.Civ.P. 37(a).
This is not a recommended ruling. This is a discovery ruling and order reviewable pursuant to the “clearly erroneous” standard of review. 28 U.S.C. § 63 6(b)(1)(A); Fed. R.Civ.P. 6(a), (e) and 72(a); and Rule 2 of the Local Rules for U.S. Magistrate Judges. As such, it is an order of the court. See 28 U.S.C. § 636(b)(written objections to ruling must be filed within ten days after service of same).
IT IS SO ORDERED.