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Arch Insurance Co. v. Safeco Insurance Company of America

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

December 5, 2019

ARCH INSURANCE CO., a Missouri corporation, Plaintiff,
v.
SAFECO INSURANCE COMPANY OF AMERICA, a New Hampshire corporation, et al., Defendants.

          ORDER

          John C. Coughenour United States District Judge.

         This matter comes before the Court on Defendant Safeco Insurance Company of America's motion to compel (Dkt. No. 46). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         The Court set forth the facts of this case in a previous order and will not repeat them here. (See Dkt. No. 45.) Trial in this matter is presently scheduled for March 9, 2020. (See Dkt. No. 18.) Pursuant to the Court's scheduling order, discovery closed on November 10, 2019 and the parties were required to participate in mediation no later than November 22, 2019. (See id.)

         On August 28, 2019, Defendant Safeco served Plaintiff with interrogatories and requests for production seeking discovery related to the costs Plaintiff incurred in defending the underlying lawsuits. (See Dkt. Nos. 46 at 3, 47 at 2, 47-1 at 1-17.) Plaintiff failed to timely respond to Defendant Safeco's discovery requests. (See Dkt. Nos. 46 at 3-4, 47 at 2.) On October 7, 2019, the parties met and conferred by telephone pursuant to Western District of Washington Local Civil Rule 37(a)(1) to discuss the discovery requests; Plaintiff's counsel did not explain Plaintiff's failure to respond to the discovery requests and Defendant Safeco's counsel stated that a motion to compel would be filed. (See Dkt. Nos. 46 at 4, 47 at 2.) On October 8, 2019, the parties participated in mediation without the benefit of Defendant Safeco's requested discovery. (See Dkt. No. 47 at 2.)

         On October 14, 2019, Defendant Safeco filed the instant motion to compel, seeking an order compelling Plaintiff to respond to the August 28 discovery requests and a finding that Plaintiff waived any objections to the requests. (See Dkt. No. 46.) Defendant Safeco also sought sanctions against Plaintiff, including dismissal of Plaintiff's complaint and an award of Defendant Safeco's reasonable expenses pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). (See generally id.)

         On October 25, 2019, Plaintiff provided written responses, objections, and 1, 877 pages of documents to Defendant Safeco. (See Dkt. Nos. 49 at 4, 50 at 2.) It appears that Plaintiff has withheld several documents and has redacted several of the documents it disclosed. (See Dkt. Nos. 51 at 2-3, 52 at 2.) Plaintiff has not provided Defendant with a privilege log for the redactions or withheld documents. (See Dkt. No. 52 at 2.)[1] In its response to Defendant Safeco's motion to compel, Plaintiff argues that it has complied with its discovery obligations and that sanctions should not be imposed now that it has provided discovery. (See generally Dkt. No. 49.) In its reply, Defendant Safeco asserts that Plaintiff's discovery responses are incomplete and reiterates its request for sanctions. (See generally Dkt. No. 51.)

         II. DISCUSSION

         A. Motion to Compel

         Discovery motions are strongly disfavored. “Parties 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.” Fed.R.Civ.P. 26(b)(1). A party subject to a discovery request must respond with answers and any objections within 30 days after being served. See Fed. R. Civ. P. 33(b)(2); Fed.R.Civ.P. 34(b)(2). “It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). “This is true even of an objection that the information sought is privileged.” Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). Waiver applies equally to interrogatories, withheld documents, and requests for production. See Bussiere v. Softmart Commercial Servs., Inc., Case No. C08-1461-RSM, Dkt. No. 31 at 2 (W.D. Wash. June 2009) (collecting cases and other authorities).

         If requested discovery is not answered, the requesting party may move for an order compelling such discovery. Fed.R.Civ.P. 37(a)(1). The Court has broad discretion to decide whether to compel disclosure of discovery. Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).

         Defendant Safeco served its discovery requests on Plaintiff on August 28, 2019, and Plaintiff's responses, including objections, were due 30 days thereafter. See Fed. R. Civ. P. 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 provide its responses until October 25, 2019, well after the deadline mandated by the Federal Rules of Civil Procedure. (See Dkt. Nos. 49 at 4, 51 at 2-3.) Plaintiff thus waived any objections, including those based on privilege, to Defendant Safeco's August 28, 2019 discovery requests. See Richmark Corp., 959 F.2d at 1473; Davis, 650 F.2d at 1160; Bussiere, Case No. C08-1461-RSM, Dkt. No. 31 at 2. Therefore, Defendant Safeco's motion to compel is GRANTED on this ground. Plaintiff must fully respond to Defendant Safeco's August 28, 2019 discovery requests to the extent it did not do so because of its objections.

         B. Sanctions

         1. Dism ...


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