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Fidelity & Guaranty Life Insurance Co. v. Albertson

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 26, 2007

FIDELITY & GUARANTY LIFE INSURANCE CO., PLAINTIFF,
v.
JAMES ALBERTSON, DEFENDANT.

The opinion of the court was delivered by: Hon. Leo S. Papas U.S. Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS (38-1)

On November 9, 2007, Plaintiff Fidelity & Guaranty Life Insurance Co. (hereafter "Plaintiff") filed a Motion to Compel Responses to Special Interrogatories, Requests for Production of Documents and Request for Sanctions (hereafter "Motion"). On November 15, 2007, Defendant James Albertson (hereafter "Defendant") filed an Opposition to Plaintiff's Motion. On November 21, 2007, Plaintiff filed a Reply to Defendant's Opposition. The Court, having reviewed the Motion, Opposition and Reply, HEREBY GRANTS in part and DENIES in part Plaintiff's Motion.

Factual Background

On September 11, 2007, the Court convened an Early Neutral Evaluation Conference (hereafter "ENE") in this action. Settlement was not reached at the ENE, so the Court issued an Order Setting Rule 26 Compliance (hereafter "Rule 26 Order") After the ENE, the Court instructed the parties to informally exchange the documents that support their respective positions. In the Rule 26 Order, the Court ordered that the Fed. R. Civ. P. 26(f) conference be completed by October 5, 2007 and a discovery plan be lodged with the Court on or before October 15, 2007. On October 15, 2007, Plaintiff filed a Joint Report of Conference of Counsel and Discovery Plan.

However, On April 10, 2007, counsel conducted the conference required by Fed. R. Civ. P. 26(f). On April 24, 2007, counsel served their initial disclosures pursuant to Fed. R. Civ. P. 26(a). (Declaration of Misty Murray in Support of Reply to Opposition to Plaintiff's Motion, Exs. A - D)

On June 12, 2007, Defendant began to conduct discovery. [Declaration of Misty Murray in Support of Reply to Opposition to Plaintiff's Motion, Ex. E (Notice of Deposition of Mark Hunton, set for July 27, 2007)]

On August 9, 2007, Plaintiff propounded on Defendant Special Interrogatories and Requests for Production of Documents (hereafter "discovery requests"). The responses to these discovery requests were due on September 11, 2007.

Defendant requested that extensions of time be granted to him in order to respond to the discovery requests. Plaintiff granted Defendant's requests for extensions of time to respond on at least three separate occasions. The extensions granted were to October 9, October 23, and November 13, 2007. To date, no responses to the discovery requests have been received by Plaintiff. Therefore, Plaintiff moves the Court to compel responses to the discovery requests. Plaintiff also seeks its attorneys fees as sanctions for having to make its Motion.

Defendant argues that Plaintiff's Motion is improper until after the completion of the initial disclosures and a discovery plan has been developed. Therefore, Plaintiff's discovery requests and Motion to compel responses to them are premature. Defendant also seeks sanctions for having to oppose Plaintiff's Motion.

Analysis

A party may not seek discovery from any source before the parties have conferred as required by Fed R. Civ. P 26(f). Fed. R. Civ. P. 26(d)

On April 10, 2007, counsel conducted the conference mandated by Fed. R. Civ. P. 26(f).

Therefore, Plaintiff's discovery requests, propounded on August 9, 2007, were proper. While Defendant argues that Plaintiff's discovery requests and Motion to compel responses to them, were premature, it does not appear that his position in this regard was ever communicated to Plaintiff. Instead, on June 12, 2007, approximately two months before Plaintiff's discovery requests were served, Defendant himself began to conduct discovery. The Court finds Defendant's argument to be disingenuous. As a result, Plaintiff's Motion is GRANTED.

Therefore, on or before December 11, 2007, Defendant shall respond to Plaintiff's Special Interrogatories without objections, other than objections based on attorney-client privilege and work product. Fed R. Civ. P. 33(b)(4).

With regard to Plaintiff's Requests for Production of Documents, on or before December 11, 2007, Defendant shall respond to Plaintiff's Requests for Production of Documents in accordance with the Requests. Fed. R. Civ. P. 34(a), 37(a)(1)(B).

If Defendant does not provide the responses to Plaintiff's discovery requests on or before the date noted above, The Court will issue sanctions against Defendant of $100.00 per day for every day that the responses have not been provided to Plaintiff.

The Court warns Defendant that his failure to comply with his discovery obligations in this case and as noted in this Order, may subject him to further sanctions including the entry of a default against him.

Sanctions

The Court, having reviewed Plaintiff's Motion, Defendant's Opposition, Plaintiff's Reply, HEREBY GRANTS Plaintiff's Request for Sanctions and awards Plaintiff the sum of $750.00 for preparation of its Motion and Reply. Defendant shall pay Plaintiff that amount forthwith. Defendant's Request for Sanctions is DENIED. Conclusion

Plaintiff's Motion to Compel Responses to Special Interrogatories and Requests for Production of Documents is GRANTED.

Plaintiff's Request for Sanctions is GRANTED in part and DENIED in part.

Defendant's Request for Sanctions is DENIED.

IT IS SO ORDERED.

20071126

© 1992-2007 VersusLaw Inc.



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