United States District Court, D. New Mexico
UNITED FIRE AND CASUALTY COMPANY, an Iowa corporation, Plaintiff,
CASKEY DRYWALL NM LLC; a Texas limited liability company; CENTEX CONSTRUCTION OF NEW MEXICO, LLC, a Delaware limited liability company; CENTEX HOMES, a Nevada general partnership; CENTEX REAL ESTATE CORPORATION, a Nevada corporation; PULTE DEVELOPMENT NEW MEXICO, INC, a Michigan corporation; THE PRESIDIO CONDOMINIUM ASSOCIATION, INC., a New Mexico nonprofit corporation; and THE PRESIDIO HOMEOWNER ASSOCIATION, INC., a New Mexico nonprofit corporation, Defendants.
MEMORANDUM OPINION AND ORDER
H. RITTER U.S. MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff United Fire and
Casualty Company's (“United Fire's”)
First Motion to Compel Discovery Responses from Defendants
the Presidio Condominium Association, Inc. and the Presidio
Homeowner Association, Inc. [Doc. 33');">33], filed June 15, 2');">2018,
and Defendants Presidio Condominium Association, Inc., and
Presidio Homeowner Association, Inc.'s
(“Presidio's”) Response to Motion to Compel
and Cross-Motion for Protective Order [Doc. 36], filed July
2');">2, 2');">2018. Having considered the parties' briefing on the
matter and all pertinent authority, the Court will grant in
part and deny in part the Motion to Compel and deny the
Motion for Protective Order, for the following reasons.
declaratory judgment action was initiated by United Fire, a
liability insurer, to determine whether it has a duty to
defend or indemnify Defendants Caskey Drywall and the
associated group of Defendants referred to as
“Centex” in the Complaint, against claims brought
by Defendant Presidio in an underlying state court lawsuit.
[See Doc. 1, pp. 1-2');">2]. In the underlying lawsuit,
Presidio claims that Centex, and its subcontractor, Caskey,
“[d]amaged and/or [d]efectively installed [the] drywall
system, ” in constructing the Presidio condominium and
townhome complex as evinced by “[d]rywall system
failure, cracking, corner bead separations and nail pops
… [d]rywall ceiling stains from roof related water
intrusion … [and] unsealed penetrations through
ceilings and/or wall.” [Doc. 1-2');">2, p. 9]. The underlying
state lawsuit is still pending and was ordered to
arbitration. [Doc. 13-1].
this Court entered a Scheduling Order and the parties engaged
in discovery. [Doc. 2');">23]. On April 2');">26, 2');">2018, United Fire
served its First Set of Interrogatories, Requests for
Production, and Requests for Admission to Presidio. [Doc. 2');">26
(Certificate of Service)]. Presidio served allegedly
deficient answers and responses, prompting United Fire to
issue a good faith letter under Federal Rule of Civil
Procedure 37. [Docs. 33');">33-2');">2, 33');">33-3]. After the parties met and
conferred, and Presidio responded in writing to United
Fire's letter [see Doc. 36-2');">2], they reached an
impasse, prompting United Fire to file the present Motion.
Motion to Compel, United Fire moves the Court to compel
Presidio to verify its interrogatory answers as required by
the Federal Rules of Civil Procedure, overrule Presidio's
objections to United Fire's first interrogatory and
request for production, and compel “Presidio to provide
full discovery responses.” [Doc. 33');">33, p. 5]. Pursuant to
Rule 37(a)(5)(A), United Fire also requests its reasonable
expenses in bringing the Motion. [Id.]. While it
concedes that United Fire is “entitled to a
verification of the discovery responses that Presidio has
served” and that it will proffer such verification
“[a]s soon as practicable, ” Presidio asks the
Court to deny the Motion to Compel and cross-moves for a
protective order. [See generally Doc. 36]. As
grounds, Presidio explains that it has no further information
to offer than stated in its interrogatory answer and response
to United Fire's request for production [see
id., pp. 4-5], and that it had a then-pending motion for
judgment on the pleadings, warranting a stay of further
discovery until resolution of the motion. [Id., pp.
5-6]. In its Reply in Support of the Motion to Compel, United
Fire reasserts its entitlement to an order in its favor and
an award of costs. [See generally Doc. 38');">38].
Specifically, United Fire points to Presidio's concession
of the need for a verification (yet failure to serve it as of
July 13, 2');">2018), and “[t]o be clear, United Fire does
not ask this Court to compel Presidio to produce information
it does not possess. United Fire simply asks the Court to
compel Presidio to verify, without qualification, that it
does not possess responsive information.”
[Id., p. 2');">2]. As such, “United Fire asks that
this Court strike Presidio's objection, triggering
Presidio's obligation to supplement its Response if and
when responsive materials become available.”
[Id., p. 3');">p. 3]. United Fire also filed a Response in
Opposition to Presidio's Motion for a Protective Order,
arguing that it should be denied because Presidio failed to
comply with this Court's Local Rules when bringing it,
and because Presidio has failed to demonstrate good cause.
[See generally, Doc. 39].
Rule of Civil Procedure 2');">26(b)(1) governs the scope of
discovery, providing that:
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
Fed. R. Civ. P. 2');">26(b)(1). Relevant evidence is that which
“has any tendency to make a fact more or less probable
than it would be without the evidence; and the fact is of
consequence in determining the action.” Fed.R.Evid.
401. However, “[i]nformation within [the] scope of
discovery need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 2');">26(b)(1).
may issue interrogatories pursuant to Federal Rule of Civil
Procedure 33');">33, which “may relate to any matter that may
be inquired into under Rule 2');">26(b).” Fed.R.Civ.P.
33');">33(a)(2');">2). “Each interrogatory must, to the extent it is
not objected to, be answered separately and fully in writing
under oath.” Fed.R.Civ.P. 33');">33(b)(3). A responding party
may object to an interrogatory; however, the grounds for an
objection “must be stated with specificity.”
Fed.R.Civ.P. 33');">33(b)(4). Pertinent here, “[t]he person
who makes the answers must sign them, and the attorney who
objects must sign any objections.” Fed.R.Civ.P.
33');">33(b)(5). A party may move to compel the answer to an
interrogatory under Rule 33');">33 if good faith attempts to secure
the answer are unsuccessful. Fed.R.Civ.p. 3');">p. 37(a)(3)(B)(iii).
may issue requests for production pursuant to Federal Rule of
Civil Procedure 34 “within the scope of Rule
2');">26(b)[.]” Fed.R.Civ.p. 3');">p. 34(a). Each request must be
stated with “reasonable particularity, ”
Regan-Touhy v. Walgreen Co., 2');">26 F.3d 641');">52');">26 F.3d 641, 649 (10th
Cir. 2');">2008) (quoting Fed.R.Civ.p. 3');">p. 34(b)(1)(A)), and be
responded to or addressed by specific objection. Fed.R.Civ.P.
34(b)(2');">2). “Though what qualifies as ‘reasonably
particular' surely depends at least in part on the
circumstances of each case, a discovery request should be
sufficiently definite and limited in scope that it can be
said ‘to apprise a person of ordinary intelligence what
documents are required and to enable the court to ascertain
whether the requested documents have been
produced.'” Regan-Touhy, 52');">26 F.3d at
649-50 (quoting Wright & Miller, 8A Federal Practice and
Procedure § 2');">22');">211, at 415). “[A]n evasive or
incomplete disclosure, answer, or response must be treated as
a failure to disclose, answer or respond.” Fed.R.Civ.P.
37(a)(4). A party may move to compel a response to a request
for production if good faith attempts to secure the answer
are unsuccessful. Fed.R.Civ.p. 3');">p. 37(a)(3)(B)(iv).
are under a continuing duty to supplement responses to
discovery “in a timely manner if the party learns that
in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective
information has not otherwise been known to the other party
during the discovery process.” Fed.R.Civ.P.
2');">26(e)(1)(A). The failure to supplement a discovery response
may result in sanctions “unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
rules should deter the abuse implicit in carrying or forcing
a discovery dispute to court when no genuine dispute
exists.” Centennial Archaeology, Inc. v. AECOM,
Inc., 688 F.3d 673, 680 (10th Cir. 2');">2012');">2) (quoting 1970
committee notes to Rule 37(a)(4)). As a consequence, Federal
Rule of Civil Procedure 37 contains provisions that
“allow, and often ...