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Jarrell v. Shelter Mutual Insurance Co.

United States District Court, S.D. Mississippi, Eastern Division

August 1, 2019

LYNDA B. JARRELL and TERRY D. JARRELL PLAINTIFFS
v.
SHELTER MUTUAL INSURANCE COMPANY DEFENDANT

          ORDER

          MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Defendant's Motion to Dismiss for Discovery Violations [52], which the Court construes as a motion for sanctions. Having considered the parties' submissions and the applicable law, the Court finds that the Motion [52] should be granted in part and denied in part.

         On January 17, 2018, Plaintiffs' house was damaged by a fire. Plaintiffs filed this action in state court on September 19, 2018, [1] asserting breach of contract and bad faith claims against Shelter Mutual Insurance Company (“Shelter”). Plaintiff alleges that Shelter wrongfully refused to pay the full amount owed under Plaintiffs' insurance policy.

         Before filing suit, Plaintiffs' counsel had multiple conversations with Shelter's claim adjuster, Earl Haines. These conversations took place on April 17, 2018, June 19, 2018, and August 20, 2018. Plaintiffs' counsel surreptitiously recorded his conversation with Haines on August 20, 2018. As previously mentioned, Plaintiffs filed suit on September 19, 2018.

         Plaintiffs produced their initial disclosures on January 4, 2019. See Notice [10]. The August 20, 2018, recording was not mentioned in the disclosures. On February 12, 2019, Shelter propounded its first set of interrogatories. See Notice [12]. Included was Interrogatory No. 9, which stated as follows:

State whether or not you, your attorney, anyone acting on your behalf or any other person has obtained any statement (whether signed or otherwise adopted by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription) from any person concerning any occurrence or allegation or alleged damages which is a subject of this suit and, if the answer is in the affirmative, please identify each and every person giving such statement and the custodian of the statement.

         On March 19, 2019, Plaintiffs answered Interrogatory No. 9 as follows:

Objection is made to Interrogatory No. 9 as the same would invade the work product and work efforts of Plaintiff's attorneys. Plaintiffs personally have not obtained any written statements from anyone, expect those produced in discovery and already provided to Defendants and their attorneys from contractors, engineers and other person acting on behalf of Plaintiffs.

See Interrogatory Responses [53-5] at 7-8.

         Plaintiffs did not provide a privilege log along with their interrogatory responses to indicate that records were withheld. On May 2, 2019, Shelter sent a good faith letter to Plaintiff pointing out that Plaintiffs' response mentioned only written statements and requesting “the identity of any other recorded statements that you, as their attorney, or anyone else on their behalf may have obtained.” See Good Faith Letter [53-6] at 1-2. According to Shelter, Plaintiffs' counsel “verbally assured defense counsel that he was not withholding anything under privilege.” See Shelter's Brief [53] at 8.

         Plaintiffs deposed Haines and his supervisor Marshall Cartledge on May 30, 2019. After completing these depositions, Plaintiffs provided Shelter a recording of the August 20, 2018, conversation between Plaintiffs' counsel and Haines. Plaintiff supplemented their response to Interrogatory No. 9, stating, in part, that “[n]o privilege is claimed as to this recorded conversation and the same will be produced subsequent to the deposition of Earl Haines.” See Supplemental Interrogatory Responses [53-9].

         In its Motion [52], Shelter argues that Plaintiffs were required to produce the recording as part of their initial disclosures pursuant to Fed.R.Civ.P. 26. Rule 26 states, inter alia, that a party “must, without awaiting a discovery request, provide to the other parties: . . . a copy-or description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment . . . .” Fed.R.Civ.P. 26(a)(1)(A)(ii).

         Additionally, Shelter argues that Plaintiffs were required to disclose the existence of the recording in response to Interrogatory No. 9. Shelter also argues that Plaintiffs had a duty to supplement their initial disclosures and their interrogatory responses in a timely manner pursuant to Rule 26(e)(1) by disclosing the existence of the recording.

         This Court has previously held that a recording which constituted substantive evidence, such as the one at issue, should have been disclosed prior to depositions. See Mason v. T.K. Stanley, ...


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