United States District Court, W.D. Washington, Tacoma
ERIC KLOPMAN-BAERSELMAN, as Personal Representative for the Estate of RUDIE KLOPMAN-BAERSELMAN, deceased, Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER ON PLAINTIFF'S MOTION TO COMPEL
J. BRYAN UNITED STATES DISTRICT JUDGE.
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.
reasons set forth below, the Court should grant, in part, and
deny, in part, Plaintiff's Motion to Compel.
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.
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.
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.
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.
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.
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.
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.
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.” Dkt. 187, at 3. O'Reilly's counsel
modified the email and sent it to Plaintiff on March 29,
2019. Dkt. 187, at 3.
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. 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.
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.
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).
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
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.
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