Free Motion to Compel - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PATRICIA WARD, Plaintiff, v. CATHOLIC CEMETERIES, INC., Defendant. ) ) ) ) ) ) ) ) )

Civil Action No. 07-691 SLR JURY TRIAL DEMANDED

MOTION TO COMPEL RESPONSES TO DISCOVERY Defendant, Catholic Cemeteries, Inc., by and through its undersigned counsel and pursuant to Federal Rule of Civil Procedure 37, hereby moves for the entry of an Order compelling Plaintiff Patricia Ward to provide responses to Defendant's First Set of Interrogatories, Defendant's First Request for Production of Documents Directed to Plaintiff, Defendant's Supplemental Request for Production of Documents, and for associated costs and expenses, including attorney's fees, and in support thereof: 1. The present matter was initiated by Plaintiff's Complaint filed November

2, 2007. (D.I. 1). This Court approved the parties' proposed Scheduling Order on January 15, 2008. (D.I. 8). Discovery began in March, 2008 and is scheduled to end July 31, 2008. (D.I. 8). 2. In accordance with the Scheduling Order, the parties were to exchange

their Pre-Discovery Disclosures under Fed. R. of Civ. P. 26(a) on or before February 22, 2008. (D.I. 8, ¶ 1). 3. By letter dated March 17, 2008, Defendant notified Plaintiff that it had not

received Plaintiff's required Rule 26(a) Disclosures. (Ex. A).

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4.

Subsequently, Defendant, by letter dated April 2, 2008, served its First Set

of Interrogatories to Plaintiff and its First Request for Production of Documents to Plaintiff and filed a Notice of Service with the Court indicating same. (D.I. 12). Plaintiff's responses were due by May 7, 2008. As Plaintiff's Rule 26(a) Pre-Discovery Disclosures were more than 30 days past due, Defendant also asked Plaintiff to specify when they would be provided. (Ex. B). 5. Although counsel for the Plaintiff never responded to Defendant's letter of

April 2, 2008, on April 25, 2008, Plaintiff's counsel filed a Notice of Service, entitled "Notice of Service of Plaintiff Patricia Ward's Rule 26 Discovery Responses." (D.I. 14) Despite its title, the body of the Notice of Service states that Plaintiff was forwarding by hand delivery or regular mail "Plaintiff Patricia Ward's Responses to Interrogatories and Request for Production." (D.I. 14). The document that Plaintiff's counsel actually forwarded was in fact merely the Rule 26 Disclosures. Despite the forgoing language in the Notice of Service, Plaintiff did not provide "Plaintiff Patricia Ward's Responses to Interrogatories and Request for Production." 6. On May 6, 2008, Defendant noticed Plaintiff Patricia Ward's deposition

for Friday, June 6, 2008. (D.I. 15). 7. On May 19, 2008, Defendant's counsel wrote to Plaintiff's counsel to

address several outstanding discovery issues. First, Defendant's counsel called opposing counsel's attention to the fact that, despite the language contained in Plaintiff's "Notice of Service of Plaintiff Patricia Ward's Rule 26 Discovery Responses" (D.I. 14), Defendant had not, in fact, received any responses to its First Set of Interrogatories to Plaintiff or its First Request

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for Production of Documents. Defendant noted that these responses were now overdue and requested that they be provided as soon as possible. Defendant's counsel also indicated that Plaintiff's deposition would need to be rescheduled if Defendant's counsel did not receive discovery responses by May 23, 2008. (Ex. C). 8. On June 3, 2008, having no response from Plaintiff's counsel to the

previous correspondence of May 19, 2008, Defendant's counsel wrote indicating that, due to Plaintiff's failure to respond to discovery requests, Defendant had no choice but to reschedule Plaintiff's deposition. Further, Defendant's counsel extended the deadline for Plaintiff to provide responses to discovery until Friday, June 13, 2008. (Ex. D). 9. On June 3, 2008, Defendant filed a Re-Notice of Deposition of Plaintiff,

for June 24, 2008. (D.I. 16). 10. On June 23, 2008, having received no response whatsoever from

Plaintiff's counsel to any of its previous correspondence, Defendant's counsel advised that it would not proceed with the Plaintiff's deposition scheduled on June 24, 2008, and further advised it would seek the Court's assistance in obtaining responses to the discovery. (Ex. E). 11. Subsequently, in a letter received by facsimile later the same day,

Plaintiff's counsel requested that the June 24, 2008 deposition of Plaintiff be rescheduled due to a surgery that counsel was to undergo. Plaintiff's counsel further advised that he expected "to provide you with discovery responses soon, perhaps by Friday or early next week." (Ex. F). 12. By letter dated June 30, Defendant's counsel reviewed the repeated

requests for responses to the outstanding discovery requests, which were, at this point, over 45 days past-due. Defendant's counsel also noted that Plaintiff's failure to respond to the discovery

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requests had necessitated the postponement of the Plaintiff's deposition on several occasions and was prejudicing Defendant's ability to move forward with discovery in the instant matter. Nonetheless, Defendant agreed to provide Plaintiff with a brief extension, until close of business on July 3, 2008, for Plaintiff to submit responses to all outstanding discovery. Defendant noted that if Plaintiff's counsel failed to do so, it would seek the Court's assistance and file a Motion to Compel. (Ex. G). 13. By correspondence dated June 27, 2008, Defendant's counsel forwarded a

Supplemental Request for Production of Documents Directed to Plaintiff. (Ex. H; D.I. 17). Responses to the Supplemental Request for Production of Documents are due by July 30, 2008.1 14. 2008. (D.I. 18). 15. July 18, 2008, Plaintiff's counsel wrote to Defendant's counsel. In his On July 11, 2008, Defendant Re-Noticed Plaintiff's deposition for July 28,

letter, Plaintiff's counsel apologized for his "lack of responsiveness" and advised that he was working on discovery responses, and hoped "to complete them soon." (Ex. I). 16. Plaintiff's counsel telephoned Defendant's counsel on the afternoon of

Friday, July 18, 2008. In this conversation, Defendant's counsel noted that opposing counsel's representations concerning discovery responses were insufficient under the circumstances. Counsel for Defendant noted that the letter of July 18, 2008 lacked a commitment to provide responses by a specific date. Therefore, counsel for Defendant stated that he intended to file a Motion to Compel if the responses were not received by the close of business on Thursday, July 24th.
Although Plaintiff's responses to the Supplemental Request for Production of Documents are not past-due as of the date this Motion is being submitted, Defendant, based on Plaintiff's failure to cooperate in discovery thus far, has included them in the scope of this Motion. Defendant believes this will avoid the unpleasant necessity of burdening the Court with a subsequent, additional, Motion to Compel, should Plaintiff fail to provide responses by July 30, 2008.
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17.

Counsel for Defendant followed up on the July 18, 2008 telephone

conversation by letter dated July 21, 2008. Counsel for Defendant again noted that opposing counsel's representation that he was working on discovery responses and "hope[d] to complete them soon" was inadequate given the quickly approaching discovery cut-off in the instant matter (July 31, 2008). Counsel for Defendant again noted that he required "a more definite

commitment from you [opposing counsel] to provide your discovery responses by a specific date." Counsel for Defendant further advised that he would "file a Motion to Compel Discovery if I have not received your responses to [Defendant's] First Requests for Production of Documents and Interrogatories by the close of business on Thursday, July 24th. If forced to file this Motion, I will, of course, seek fees/costs from you." (Ex. J). 18. To date, Defendant has not received any responses to its discovery

requests. Nor has Plaintiff's counsel provided any further indication of when such responses might be forthcoming. 19. As evidenced by the supporting documentation, Defendant has provided

numerous extensions of time for Plaintiff to provide discovery responses, and in doing so, has incurred substantial attorneys' fees and costs associated with the preparation of correspondence and the preparation and filing of this Motion. In addition, Plaintiff's failure to cooperate in discovery has prejudiced Defendant's ability to conduct discovery in the instant matter and has necessitated the repeated postponement of Plaintiff's deposition. 20. As noted above, Plaintiff's deposition is currently scheduled for Monday,

July 28, 2008. However, given Plaintiff's lack of cooperation in discovery to date, Defendant respectfully requests the right to conduct a subsequent, second, continued deposition of the Plaintiff at a later date after Plaintiff's discovery responses have been received.

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WHEREFORE, Defendant respectfully requests that this Court enter an Order in the form attached hereto compelling Plaintiff to provide Answers to Defendant's First Set of Interrogatories and Responses to Defendant's First and Supplement Requests for Production of Documents within 5 (five) business days of notice, ordering Plaintiff to appear for a continued deposition within fifteen (15) business days of notice, awarding Defendant's counsel reasonable attorney's fees and costs incurred in connection with the preparation of discovery- related correspondence and this Motion, and directing Plaintiff to comply in full with her discovery obligations. YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Michael P. Stafford, Esquire Anthony G. Flynn, Esquire (I.D. #74) Michael P. Stafford, Esquire (I.D. #4461) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 Telephone: (302) 571-6553; (302) 571-6675 Facsimile: (302) 576-3345; (302) 576-3293 Email: [email protected]; [email protected] Attorneys for Defendant Dated: July 25, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PATRICIA WARD, Plaintiff, v. CATHOLIC CEMETERIES, INC., Defendant. ) ) ) ) ) ) ) ) )

Civil Action No. 07-691 SLR JURY TRIAL DEMANDED

STATEMENT OF COMPLIANCE PURSUANT TO LOCAL RULE 7.1.1 Counsel for Defendant Catholic Cemeteries, Inc. consulted with Plaintiff's counsel pursuant to Local District Court Civil Rule 7.1.1 regarding its request for responses to its discovery requests in an attempt to reach an agreement on this issue. YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Michael P. Stafford, Esquire Anthony G. Flynn, Esquire (I.D. #74) Michael P. Stafford, Esquire (I.D. #4461) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 Telephone: (302) 571-6553; (302) 571-6675 Facsimile: (302) 576-3345; (302) 576-3293 Email: [email protected]; [email protected] Attorneys for Defendant Dated: July 25, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PATRICIA WARD, Plaintiff, v. CATHOLIC CEMETERIES, INC., Defendant. ) ) ) ) ) ) ) ) )

Civil Action No. 07-691 SLR JURY TRIAL DEMANDED

ORDER AND NOW, this _____ day of______________ 2008, the Court having heard and duly considered Defendant's Motion to Compel and any response thereto, IT IS HEREBY ORDERED as follows: 1. Plaintiff shall provide Answers to Defendant's First Set of Interrogatories, and

shall produce documents responsive to Defendant's First Request for Production of Documents and Defendant's Supplemental Request for Production of Documents to Defendant's counsel within five (5) business days of Notice of this Order; 2. Plaintiff shall appear for a continued deposition, if necessary, within fifteen (15)

business days of Notice of this Order; 3. Defendant shall be awarded reasonable expenses, including attorneys' fees, for

preparing, filing and presenting the pending Motion, as well as for its correspondence related to Plaintiff's failure to cooperate in discovery, in an amount to be determined by this Court; and 4. Plaintiff shall strictly comply with her obligations under this Order and under the

Federal and Local Rules of Civil Procedure or shall risk dismissal without prejudice of the present case, as captioned above. __________________________________________ Sue L. Robinson, United States District Judge

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