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Klopman-Baerselman v. Air & Liquid Systems Corp.

United States District Court, W.D. Washington, Tacoma

April 22, 2019

ERIC KLOPMAN-BAERSELMAN, as Personal Representative for the Estate of RUDIE KLOPMAN-BAERSELMAN, deceased, Plaintiff,



         THIS MATTER comes before the Court on Plaintiff's Notice of Motion and Motion to Compel Further Answers to Interrogatories and Requests for Production of Documents from Defendant O'Reilly Automotive Stores, Inc. (“Motion to Compel”). Dkt. 181. Oral argument is unnecessary to decide the motion.

         For the reasons set forth below, the Court should grant, in part, and deny, in part, Plaintiff's Motion to Compel.

         I. BACKGROUND

         This Motion to Compel arises from a case regarding the mesothelioma-related death of Mr. Rudie Klopman-Baerselman's (“Decedent”), for which Plaintiff alleges Defendants are liable. Dkt. 181. Plaintiff alleges that Decedent was exposed to asbestos as a professional and home auto mechanic. Plaintiff alleges to have discovered numerous asbestos-containing auto parts in Decedent's garage. Decedent allegedly purchased many of the asbestos-containing auto parts from Schuck's Auto Parts stores in Vancouver, Washington, and Camas, Washington.

         Defendant O'Reilly Auto Enterprises, LLC (“O'Reilly”; elsewhere in the record referred to as “CSK”), formerly known as CSK Auto, Inc., is apparently responsible for the Schuck's Auto Parts Stores (“Schuck's”). Dkt. 181. Schuck's was an automotive parts retailer throughout Washington, Idaho, Oregon, and Montana. Dkt. 164-3, at 10. Schuck's was acquired by O'Reilly in 1987. Dkt. 164-3, at 10.

         On November 28, 2018, Plaintiff served on O'Reilly a First Set of Interrogatories and Requests for Production, as well as a First Set of Requests for Admission. Dkt. 181, at 2-3. On December 20, 2018, O'Reilly apparently emailed Plaintiff requesting an extension to answer the discovery requests. Dkt. 181, at 3. Plaintiff granted the extension. Dkt. 181, at 3.

         On January 11, 2019, O'Reilly apparently served its initial Answers and Responses to Plaintiff's First Interrogatories and Requests for Production, as well as its Responses to Plaintiff's Requests for Admission. Dkt. 181, at 3. In its initial answers and responses, O'Reilly apparently did not produce any documents, nor did it provide any information concerning the Schuck's in Vancouver, Washington. Dkt. 181, at 3; see Dkt. 187.

         On February 14, 2019, Plaintiff emailed O'Reilly a response detailing the alleged deficiencies in O'Reilly's answers and responses. Dkt. 182-10. On February 15, 2019, counsel for O'Reilly emailed back a response, “I can't discuss all of this with you until next week. I'll let you know when I have the client input I need.” Dkt. 181, at 4.

         Plaintiff alleges that, after seven days, Plaintiff's counsel called, left a voicemail, and sent an email to O'Reilly's counsel. Dkt. 181, at 4. O'Reilly's counsel responded by email, “I'll bug them again, Ben. I still have nothing back from the client.” Dkt. 181, at 4. O'Reilly's counsel continued, “The person I need to speak to has been and is out, and now I am having surgery on Monday. We have set up a call for next Friday morning [(March 1, 2019)], so I can respond substantively after that. Sorry for the delay.” Dkt. 182-16, at 2. Plaintiff's counsel asked to speak with O'Reilly's counsel that Friday, March 1, 2019. Dkt. 181, at 5.

         On March 28, 2019, apparently after receiving no response from O'Reilly, Plaintiff filed the instant Motion to Compel requesting sufficient answers and responses to its discovery requests and sanctions against O'Reilly. Dkt. 181.

         O'Reilly's counsel alleges that it had prepared a detailed email response to Plaintiff but inadvertently did not sent it, possibly “due to the aftereffects of surgery.”[1] Dkt. 187, at 3. O'Reilly's counsel modified the email and sent it to Plaintiff on March 29, 2019. Dkt. 187, at 3.

         On April 8, 2019, O'Reilly responded in opposition to Plaintiff's instant Motion to Compel:

Many of the issues [Plaintiff alleges in the instant Motion to Compel] should be resolved by [the email O'Reilly's counsel sent to Plaintiff] and the parties' ensuing telephone conversation. For example, CSK agreed to and will delete its general objections to the discovery requests. CSK will respond regarding the Vancouver store.[2] CSK has confirmed that it possesses no responsive documents for the relevant timeframe regarding the products CSK carried and sold, or financial information regarding such sales.
CSK has confirmed that it has no information to enable it to answer as to when CSK acquired knowledge or warned about products. CSK will produce the document retention policies it has been able to locate.' Dkt. 187, at 3.

         On April 10, 2019, O'Reilly served on the Parties amended answers and responses to Plaintiff's First Interrogatories and Requests for Production. Dkt. 192-1.

         In its reply in support of the Motion to Compel, Plaintiff argues, “Even as amended, O'Reilly's discovery responses are so devoid of information as to be almost worthless …. O'Reilly's responses remain highly evasive and incomplete. And O'Reilly's document production is still grossly insufficient.” Dkt. 193, at 2. Plaintiff maintains its request for sanctions against O'Reilly. Dkt. 193, at 6.



On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Fed. R. Civ. P. 37(a)(1).

         The Court does not provide individualized discussion for each amended response alleged to be deficient in Plaintiff's reply to the Motion to Compel. The Court notes that Plaintiff's efforts to communicate with O'Reilly between February 14, 2019, and March 1, 2019, constituted a good faith conferral or attempt to confer with O'Reilly to obtain the requested disclosures and discovery without court action.

         With respect to many interrogatories and requests for production, O'Reilly claims that it does not have the materials or information requested by Plaintiff. Dkt. 192-1. O'Reilly contends that it did not acquire CSK until 2008 and that it has little information about the business it purchased.

         Many of O'Reilly's responses are incredible and hard to believe (e.g., O'Reilly's responses to Interrogatory No. 22 (Dkt. 192-1, at 12); Request for Production No. 35 (Dkt. 192-1, at 26); and Request for Production No. 46 (Dkt. 192-1, at 30)). O'Reilly's responses to Interrogatories No. 3-17 are especially hard to believe. See Dkt. 192-1, at 3-10. In effect, O'Reilly's responses to Interrogatories No. 3-17 amount to O'Reilly having had its head in the sand with respect to every brake, clutch, and gasket that may or may not have ever been sold by O'Reilly and its related ...

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