United States District Court, W.D. Missouri, Western Division
ORDER (1) DENYING DEFENDANTS' MOTION TO COMPEL
AND (2) DENYING PLAINTIFF'S SECOND MOTION TO
D. SMITH, SENIOR JUDGE.
December 19, 2019, pursuant to Local Rule 37.1, a telephone
conference was held before Magistrate Judge Lajuana M. Counts
in an attempt to resolve discovery disputes in this matter.
The parties were unable to resolve their disputes during the
conference. As a result, the Court directed the parties to
brief their issues. Now pending are Defendants' motion to
compel (Doc. #56) and Plaintiff's second motion to compel
Defendants' Motion to Compel
assert Plaintiff failed to timely respond to Defendants'
First Interrogatories and First Request for Production. They
request the Court strike Plaintiff's objections to
Defendants' discovery requests and compel Plaintiff to
provide full and complete answers and responses to their
served their discovery requests on November 1, 2019. Doc.
#38. Responses and answers to the discovery requests were due
on December 2, 2019. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A). On
December 4, 2019, Plaintiff's counsel served
Plaintiff's objections, answers, and responses to
Defendants' discovery requests. Plaintiff did not file a
certificate of service for her discovery answers, responses,
and objections until after the discovery dispute conference
on December 19, 2019. Doc. #55. Plaintiff concedes her
answers, responses, and objections were untimely, but argues
they were only two days late and the delay was unintentional.
Plaintiff should have timely served her answers and responses
or asked for an extension of time, it is clear from the facts
stated above that there was no bad faith on the part of
Plaintiff or her counsel. Further, Defendants were not
prejudiced by receiving Plaintiff's answers, responses,
and objections to their discovery requests two days late.
Therefore, Defendants' motion is denied.
Plaintiff's Second Motion to Compel
seeks the production of reports and/or communications with
any insurance company related to Defendant Patrick
Hennessey's home. Plaintiff argues the requested
documents contain information regarding the condition of the
ceiling or roof at issue in this case and relate to her
claims of premises liability, negligence, and fraudulent
misrepresentation. Plaintiff contends an insurance adjuster
inspected the ceiling and roof of Hennessey's home in
July 2016 and August 2016. Plaintiff received a limited
number of documents concerning the July 2016 inspection but
has not received any documents from the August 2016
inspection. Four requests for production are at issue:
9. Produce a copy of any incident report prepared in response
to the incident that is the subject matter of this
litigation, including, but not limited to, any report
concerning the investigation of the accident or any report
containing statements of any person known or believed to have
witnessed the incident. For avoidance of doubt, this Request
includes incident reports by any insurance company.
12. Produce any report made by or on behalf of Coughlin
regarding the incident and any documents that contain
information regarding any investigation of the incident
conducted by or on behalf of Coughlin. For avoidance of
doubt, this Request includes reports by any insurance
13. Produce a copy of any report or documentation of
inspection that shows any inspection or maintenance performed
on the ceiling at the premises in which Plaintiff was injured
prior to the incident that is the subject matter of this
litigation. For avoidance of doubt, this Request includes
reports by any insurance company.
14. Produce all communications with Defendants' insurance
companies, including any adjusters, regarding the ceiling or
roof located at the premises.
argues these materials should be produced because Kansas law
applies, and Kansas law does not recognize the
insurer-insured privilege. Defendants argue Missouri law applies
because the case was brought in Missouri, and thus, the
insurer-insured privilege protects these
documents. Defendants further argue Plaintiff's
motion should be denied because her requests are vague and
the information she seeks is unclear.
a civil case, state law governs privilege regarding a claim
or defense for which state law supplies the rule of
decision.” Fed.R.Evid. 501. To determine which
state's privilege rules control, a court must apply the
forum's conflict of law rules. Crowe v. Booker
Transp. Servs., Inc., No. 11-690 -CV-FJG, 2013 WL
394184, at *5 (W.D. Mo. Jan. 30, 2013) (citation omitted).
Thus, Missouri choice of law rules apply to this case.
Id. No Missouri court has determined what choice of
law rule applies to ...