United States District Court, S.D. Mississippi, Eastern Division
LYNDA B. JARRELL and TERRY D. JARRELL PLAINTIFFS
SHELTER MUTUAL INSURANCE COMPANY DEFENDANT
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's Motion to
Dismiss for Discovery Violations , which the Court
construes as a motion for sanctions. Having considered the
parties' submissions and the applicable law, the Court
finds that the Motion  should be granted in part and
denied in part.
January 17, 2018, Plaintiffs' house was damaged by a
fire. Plaintiffs filed this action in state court on
September 19, 2018,  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.
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.
produced their initial disclosures on January 4, 2019.
See Notice . The August 20, 2018, recording was
not mentioned in the disclosures. On February 12, 2019,
Shelter propounded its first set of interrogatories.
See Notice . 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.
March 19, 2019, Plaintiffs answered Interrogatory No. 9 as
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.
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  at 8.
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].
Motion , 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).
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.
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.