In Jarrell v. Shelter Mutual Insurance Co, 18 cv 183 KS-MTP (Southern District Mississippi, August 1, 2019, plaintiffs sued for insurance coverage after their home was damaged in a fire. Discovery began. Depositions were taken. Then it emerged that the plaintiffs had withheld a recording of a conversation between plaintiffs’ counsel and the insurance company’s adjuster. The recording was made surreptitiously.
In response to an interrogatory requesting any recordings, plaintiffs gave a non answer:
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.
The insurance company moved for sanctions and requested the dismissal of the complaint.
The court held that the recording should have been turned over with the plaintiffs’ initial disclosures under Rule 26. Further, the failure to disclose the recording merited sanctions under Rule 37.
The court declined to dismiss the case and instead ordered the plaintiffs to pay the defendant’s reasonable attorney fees in bringing the motion. The court also ordered that the plaintiffs were precluded from using the deposition testimony of two witnesses who worked for the insurance company.
While the Court does not condone the belated production of the recording, the Court finds that dismissal of this action is not warranted in this case. Shelter argues that the recording undermines the allegations found in Plaintiffs’ complaint. A Rule 37 motion, however, is not the proper method to test the merits of Plaintiffs’ claims. Additionally, the prejudice caused by Plaintiffs’ failure to timely produce the recording can be cured by precluding Plaintiffs from using the deposition testimony of Haines and Cartledge and allowing their depositions to be retaken. See, Mason,229 F.R.D. at 537. The Court also finds that the desired deterrent effect can be achieved by a monetary sanction. See Griffin v. Javeler Marine Services, LLC,2016 WL 1559170, at *5 (W.D. La. Apr. 18, 2016).
The Court finds that Shelter should be awarded the reasonable attorney’s fees incurred in attending the depositions of Haines and Cartledge on May 30, 2019, and preparing the instant Motion.
Comment: this is an interesting case as it involved recordings between an adjuster and the plaintiffs’ attorney. In my view, plaintiffs are lucky their case survived this underhanded action.
Ed Clinton, Jr.