THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 ARCH INSURANCE CO., a Missouri CASE NO. C18-1591-JCC corporation, 10 ORDER 11 Plaintiff, v. 12 SAFECO INSURANCE COMPANY OF 13 AMERICA, a New Hampshire corporation, et al., 14 15 Defendants. 16 17 This matter comes before the Court on Defendant Safeco Insurance Company of 18 America’s motion to compel (Dkt. No. 46). Having thoroughly considered the parties’ briefing 19 and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part 20 and DENIES in part the motion for the reasons explained herein. 21 I. BACKGROUND 22 The Court set forth the facts of this case in a previous order and will not repeat them here. 23 (See Dkt. No. 45.) Trial in this matter is presently scheduled for March 9, 2020. (See Dkt. No. 24 18.) Pursuant to the Court’s scheduling order, discovery closed on November 10, 2019 and the 25 parties were required to participate in mediation no later than November 22, 2019. (See id.) 26 On August 28, 2019, Defendant Safeco served Plaintiff with interrogatories and requests 1 for production seeking discovery related to the costs Plaintiff incurred in defending the 2 underlying lawsuits. (See Dkt. Nos. 46 at 3, 47 at 2, 47-1 at 1–17.) Plaintiff failed to timely 3 respond to Defendant Safeco’s discovery requests. (See Dkt. Nos. 46 at 3–4, 47 at 2.) On 4 October 7, 2019, the parties met and conferred by telephone pursuant to Western District of 5 Washington Local Civil Rule 37(a)(1) to discuss the discovery requests; Plaintiff’s counsel did 6 not explain Plaintiff’s failure to respond to the discovery requests and Defendant Safeco’s 7 counsel stated that a motion to compel would be filed. (See Dkt. Nos. 46 at 4, 47 at 2.) On 8 October 8, 2019, the parties participated in mediation without the benefit of Defendant Safeco’s 9 requested discovery. (See Dkt. No. 47 at 2.) 10 On October 14, 2019, Defendant Safeco filed the instant motion to compel, seeking an 11 order compelling Plaintiff to respond to the August 28 discovery requests and a finding that 12 Plaintiff waived any objections to the requests. (See Dkt. No. 46.) Defendant Safeco also sought 13 sanctions against Plaintiff, including dismissal of Plaintiff’s complaint and an award of 14 Defendant Safeco’s reasonable expenses pursuant to Federal Rule of Civil Procedure 15 37(a)(5)(A). (See generally id.) 16 On October 25, 2019, Plaintiff provided written responses, objections, and 1,877 pages of 17 documents to Defendant Safeco. (See Dkt. Nos. 49 at 4, 50 at 2.) It appears that Plaintiff has 18 withheld several documents and has redacted several of the documents it disclosed. (See Dkt. 19 Nos. 51 at 2–3, 52 at 2.) Plaintiff has not provided Defendant with a privilege log for the 20 redactions or withheld documents. (See Dkt. No. 52 at 2.)1 In its response to Defendant Safeco’s 21 motion to compel, Plaintiff argues that it has complied with its discovery obligations and that 22 sanctions should not be imposed now that it has provided discovery. (See generally Dkt. No. 49.) 23 In its reply, Defendant Safeco asserts that Plaintiff’s discovery responses are incomplete and 24 1 Plaintiff asserts that it disclosed the total amount of its defense costs in May 2019, when 25 Duska Roos declared that Plaintiff incurred $843,388.29 in defense costs in the underlying lawsuits. (See id. at 4 n.2) (citing Dkt. No. 38 at 4). Roos did not provide documentation 26 supporting Plaintiff’s claimed costs. (See generally Dkt. Nos. 38, 38-1.) 1 reiterates its request for sanctions. (See generally Dkt. No. 51.) 2 II. DISCUSSION 3 A. Motion to Compel 4 Discovery motions are strongly disfavored. “Parties may obtain discovery regarding any 5 nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 6 needs of the case.” Fed. R. Civ. P. 26(b)(1). A party subject to a discovery request must respond 7 with answers and any objections within 30 days after being served. See Fed. R. Civ. P. 33(b)(2); 8 Fed. R. Civ. P. 34(b)(2). “It is well established that a failure to object to discovery requests 9 within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber 10 Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). “This is true even of an objection that 11 the information sought is privileged.” Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). 12 Waiver applies equally to interrogatories, withheld documents, and requests for production. See 13 Bussiere v. Softmart Commercial Servs., Inc., Case No. C08-1461-RSM, Dkt. No. 31 at 2 (W.D. 14 Wash. June 2009) (collecting cases and other authorities). 15 If requested discovery is not answered, the requesting party may move for an order 16 compelling such discovery. Fed. R. Civ. P. 37(a)(1). The Court has broad discretion to decide 17 whether to compel disclosure of discovery. Phillips ex rel. Estates of Byrd v. General Motors 18 Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). 19 Defendant Safeco served its discovery requests on Plaintiff on August 28, 2019, and 20 Plaintiff’s responses, including objections, were due 30 days thereafter. See Fed. R. Civ. P. 21 33(b)(2); Fed. R. Civ. P. 34(b)(2); (Dkt. Nos. 46 at 3, 47 at 2, 47-1 at 1–17.) Plaintiff did not 22 provide its responses until October 25, 2019, well after the deadline mandated by the Federal 23 Rules of Civil Procedure. (See Dkt. Nos. 49 at 4, 51 at 2–3.) Plaintiff thus waived any objections, 24 including those based on privilege, to Defendant Safeco’s August 28, 2019 discovery requests. 25 See Richmark Corp., 959 F.2d at 1473; Davis, 650 F.2d at 1160; Bussiere, Case No. C08-1461- 26 RSM, Dkt. No. 31 at 2. Therefore, Defendant Safeco’s motion to compel is GRANTED on this 1 ground. Plaintiff must fully respond to Defendant Safeco’s August 28, 2019 discovery requests 2 to the extent it did not do so because of its objections. 3 B. Sanctions 4 1. Dismissal of Case 5 “If a party . . . fails to obey an order to provide or permit discovery . . . the court where 6 the action is pending may issue further just orders. They may include . . . dismissing the action or 7 proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v). “A terminating sanction, whether 8 default judgment against a defendant or dismissal of a plaintiff’s action, is very severe.” 9 Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 10 2007).
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 ARCH INSURANCE CO., a Missouri CASE NO. C18-1591-JCC corporation, 10 ORDER 11 Plaintiff, v. 12 SAFECO INSURANCE COMPANY OF 13 AMERICA, a New Hampshire corporation, et al., 14 15 Defendants. 16 17 This matter comes before the Court on Defendant Safeco Insurance Company of 18 America’s motion to compel (Dkt. No. 46). Having thoroughly considered the parties’ briefing 19 and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part 20 and DENIES in part the motion for the reasons explained herein. 21 I. BACKGROUND 22 The Court set forth the facts of this case in a previous order and will not repeat them here. 23 (See Dkt. No. 45.) Trial in this matter is presently scheduled for March 9, 2020. (See Dkt. No. 24 18.) Pursuant to the Court’s scheduling order, discovery closed on November 10, 2019 and the 25 parties were required to participate in mediation no later than November 22, 2019. (See id.) 26 On August 28, 2019, Defendant Safeco served Plaintiff with interrogatories and requests 1 for production seeking discovery related to the costs Plaintiff incurred in defending the 2 underlying lawsuits. (See Dkt. Nos. 46 at 3, 47 at 2, 47-1 at 1–17.) Plaintiff failed to timely 3 respond to Defendant Safeco’s discovery requests. (See Dkt. Nos. 46 at 3–4, 47 at 2.) On 4 October 7, 2019, the parties met and conferred by telephone pursuant to Western District of 5 Washington Local Civil Rule 37(a)(1) to discuss the discovery requests; Plaintiff’s counsel did 6 not explain Plaintiff’s failure to respond to the discovery requests and Defendant Safeco’s 7 counsel stated that a motion to compel would be filed. (See Dkt. Nos. 46 at 4, 47 at 2.) On 8 October 8, 2019, the parties participated in mediation without the benefit of Defendant Safeco’s 9 requested discovery. (See Dkt. No. 47 at 2.) 10 On October 14, 2019, Defendant Safeco filed the instant motion to compel, seeking an 11 order compelling Plaintiff to respond to the August 28 discovery requests and a finding that 12 Plaintiff waived any objections to the requests. (See Dkt. No. 46.) Defendant Safeco also sought 13 sanctions against Plaintiff, including dismissal of Plaintiff’s complaint and an award of 14 Defendant Safeco’s reasonable expenses pursuant to Federal Rule of Civil Procedure 15 37(a)(5)(A). (See generally id.) 16 On October 25, 2019, Plaintiff provided written responses, objections, and 1,877 pages of 17 documents to Defendant Safeco. (See Dkt. Nos. 49 at 4, 50 at 2.) It appears that Plaintiff has 18 withheld several documents and has redacted several of the documents it disclosed. (See Dkt. 19 Nos. 51 at 2–3, 52 at 2.) Plaintiff has not provided Defendant with a privilege log for the 20 redactions or withheld documents. (See Dkt. No. 52 at 2.)1 In its response to Defendant Safeco’s 21 motion to compel, Plaintiff argues that it has complied with its discovery obligations and that 22 sanctions should not be imposed now that it has provided discovery. (See generally Dkt. No. 49.) 23 In its reply, Defendant Safeco asserts that Plaintiff’s discovery responses are incomplete and 24 1 Plaintiff asserts that it disclosed the total amount of its defense costs in May 2019, when 25 Duska Roos declared that Plaintiff incurred $843,388.29 in defense costs in the underlying lawsuits. (See id. at 4 n.2) (citing Dkt. No. 38 at 4). Roos did not provide documentation 26 supporting Plaintiff’s claimed costs. (See generally Dkt. Nos. 38, 38-1.) 1 reiterates its request for sanctions. (See generally Dkt. No. 51.) 2 II. DISCUSSION 3 A. Motion to Compel 4 Discovery motions are strongly disfavored. “Parties may obtain discovery regarding any 5 nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 6 needs of the case.” Fed. R. Civ. P. 26(b)(1). A party subject to a discovery request must respond 7 with answers and any objections within 30 days after being served. See Fed. R. Civ. P. 33(b)(2); 8 Fed. R. Civ. P. 34(b)(2). “It is well established that a failure to object to discovery requests 9 within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber 10 Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). “This is true even of an objection that 11 the information sought is privileged.” Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). 12 Waiver applies equally to interrogatories, withheld documents, and requests for production. See 13 Bussiere v. Softmart Commercial Servs., Inc., Case No. C08-1461-RSM, Dkt. No. 31 at 2 (W.D. 14 Wash. June 2009) (collecting cases and other authorities). 15 If requested discovery is not answered, the requesting party may move for an order 16 compelling such discovery. Fed. R. Civ. P. 37(a)(1). The Court has broad discretion to decide 17 whether to compel disclosure of discovery. Phillips ex rel. Estates of Byrd v. General Motors 18 Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). 19 Defendant Safeco served its discovery requests on Plaintiff on August 28, 2019, and 20 Plaintiff’s responses, including objections, were due 30 days thereafter. See Fed. R. Civ. P. 21 33(b)(2); Fed. R. Civ. P. 34(b)(2); (Dkt. Nos. 46 at 3, 47 at 2, 47-1 at 1–17.) Plaintiff did not 22 provide its responses until October 25, 2019, well after the deadline mandated by the Federal 23 Rules of Civil Procedure. (See Dkt. Nos. 49 at 4, 51 at 2–3.) Plaintiff thus waived any objections, 24 including those based on privilege, to Defendant Safeco’s August 28, 2019 discovery requests. 25 See Richmark Corp., 959 F.2d at 1473; Davis, 650 F.2d at 1160; Bussiere, Case No. C08-1461- 26 RSM, Dkt. No. 31 at 2. Therefore, Defendant Safeco’s motion to compel is GRANTED on this 1 ground. Plaintiff must fully respond to Defendant Safeco’s August 28, 2019 discovery requests 2 to the extent it did not do so because of its objections. 3 B. Sanctions 4 1. Dismissal of Case 5 “If a party . . . fails to obey an order to provide or permit discovery . . . the court where 6 the action is pending may issue further just orders. They may include . . . dismissing the action or 7 proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v). “A terminating sanction, whether 8 default judgment against a defendant or dismissal of a plaintiff’s action, is very severe.” 9 Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 10 2007). In evaluating whether dismissal is appropriate, the district court weighs “(1) the public's 11 interest in expeditious resolution of litigation, (2) the court’s need to manage its dockets, (3) the 12 risk of prejudice to the party seeking sanctions, (4) the public policy favoring disposition of cases 13 on their merits, and (5) the availability of less drastic sanctions.” Hyde & Drath v. Baker, 24 F.3d 14 1162, 1166 (9th Cir. 1994) (citing Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). After 15 weighing the factors, the district court determines whether the party’s behavior demonstrates 16 willfulness, bad faith, or fault. Id. (citing Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1341 17 (9th Cir. 1985)). 18 The circumstances presented in the present motion do not justify the heavy sanction of 19 dismissal of Plaintiff’s complaint. While Plaintiff failed to comply with the deadline set forth by 20 the Federal Rules of Civil Procedure, Plaintiff ultimately produced responsive discovery and has 21 not yet failed to obey an order of the Court to provide or permit discovery. See Fed. R. Civ. P. 22 37(b)(2)(A)(v). Further, a lesser sanction than dismissal is available: an order compelling 23 Plaintiff to produce all discovery responsive to Defendant’s discovery requests at issue, without 24 objections. See Hyde & Drath, 24 F.3d 1166; supra Section II.B.1. Moreover, Defendant Safeco 25 has not established that Plaintiff’s behavior in discovery overcomes the public policy favoring 26 disposition of cases on their merits. See Hyde & Drath, 24 F.3d 1166; (Dkt. Nos. 46 at 9–10, 51 1 at 4–6.) Therefore, Defendant Safeco’s motion to compel is DENIED on this ground. 2 Defendant Safeco also briefly argues that dismissal is warranted because Plaintiff has 3 failed to prosecute its case, citing Plaintiff’s decision to forego affirmative discovery or 4 depositions in support of its case. See Fed. R. Civ. P. 41(b); (Dkt. Nos. 46 at 5, 7; 51 at 6.) But 5 Plaintiff has taken a number of affirmative actions in this case, including opposing Defendants’ 6 motions for partial summary judgment and producing discovery to Defendants. (See Dkt. Nos. 7 35, 46 at 3–4, 49 at 1.) The Court declines to find that Plaintiff’s behavior in this case, including 8 its decision to forego discovery benefiting itself, merits dismissal under Federal Rule of Civil 9 Procedure 41(b). Therefore, Defendant Safeco’s motion to compel is DENIED on this ground. 10 2. Reasonable Expenses 11 If a party provides requested discovery only after the opposing party files a motion to 12 compel, “the court must, after giving an opportunity to be heard, require the party or deponent 13 whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in 14 making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). The court cannot 15 order such payment “if the movant filed the motion before attempting in good faith to obtain the 16 disclosure or discovery without court action,” the nondisclosure was substantially justified, or 17 “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). 18 It is undisputed that Plaintiff provided its written answers, objections, and responsive 19 documents in response to Defendant Safeco’s August 28, 2019 discovery requests after 20 Defendant Safeco filed the instant motion to compel. (See Dkt. Nos. 46 at 1, 49 at 1, 51 at 2–3.) 21 Defendant Safeco has certified that it met and conferred with Plaintiff in good faith pursuant to 22 Local Civil Rule 37(a)(1) prior to bringing the instant motion to compel. (See Dkt. Nos. 46 at 4, 23 47 at 2.) And in its response to Defendant Safeco’s motion to compel, which explicitly sought an 24 award of Defendant Safeco’s reasonable expenses pursuant to Federal Rule of Civil Procedure 25 37(a)(5)(A), Plaintiff has not argued that its nondisclosure was substantially justified or pointed 26 to circumstances that would make an award of Defendant Safeco’s reasonable expenses unjust. 1 (See Dkt. No. 46 at 10; see generally Dkt. No. 49.) Thus, the Court finds that Defendant Safeco 2 is entitled to an award of its reasonable expenses in making its motion to compel pursuant to 3 Federal Rule of Civil Procedure 37(a)(5)(A), and Defendant Safeco’s motion to compel is 4 GRANTED on this ground. Defendant Safeco shall file a motion for attorney fees setting forth 5 its expenses incurred in making the present motion to compel within seven days of the issuance 6 of this order. 7 III. CONCLUSION 8 For the foregoing reasons, Defendant Safeco’s motion to compel (Dkt. No. 46) is 9 GRANTED in part and DENIED in part. Plaintiff is ORDERED to produce all discovery 10 responsive to Defendant Safeco’s August 28, 2019 discovery requests within 14 days of the date 11 this order is issued. Defendant Safeco shall file a motion for attorney fees setting forth its 12 reasonable expenses incurred in making its motion to compel within seven days of the date this 13 order is issued. 14 DATED this 5th day of December 2019. A 15 16 17 John C. Coughenour 18 UNITED STATES DISTRICT JUDGE
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