Sigrah v Microlife Plus [2005] FMSC 39; 13 FSM Intrm. 375 (Kos. 2005) (19 August 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Sigrah v Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375 (Kos. 2005)

SHRUE K. SIGRAH, ERWIN K. SIGRAH, and WINEDA K. SIGRAH,
surviving spouse of Decedent Kingsley E. Sigrah, and representative of minors
Lolian K. Sigrah and Shrew K. Sigrah,
Plaintiffs,

vs.

MICROLIFE PLUS and LILY J. IRIARTE,
Defendants.

CIVIL ACTION NO. 2004-2004

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: August 19, 2005

APPEARANCES:

For the Plaintiffs:
Canney L. Palsis, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

For the Defendants:
Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Discovery
When a defendant seeks to have the plaintiff produce medical records in her possession and her response is that the defendant already has those records through the subpoena process, and since the records are relevant, the court will order the parties to confer in order to insure that the defendant has a copy of all medical records in the plaintiff’s possession and the plaintiff will deliver copies of any records which the defendant does not already have. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 377 (Kos. 2005).

Civil Procedure - Discovery
When the plaintiff did not propound discovery so that the 30-day period within which to respond fell before the court-ordered discovery cutoff deadline and when the defendant did not object to the late request since it served discovery responses, the court, in the usual case, would deem the responses as a waiver of the untimeliness of that discovery, and permit the plaintiff to name the additional witnesses, but since the defendant now understandably asserts that it wants to depose the additional witnesses, which would mean reopening discovery, the court will not permit this and the plaintiff will be limited at trial to the one witness it already disclosed. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 377 (Kos. 2005).

Civil Procedure - Discovery
On the question of attorney work product, Rule 26(b)(3) protects against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney, trial counselor, or other representative of a party concerning the litigation. The party who asserts the work product privilege must demonstrate that the doctrine applies. Merely alleging that the doctrine applies is not sufficient. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 378 (Kos. 2005).

Civil Procedure - Discovery
Because the work product doctrine is intended only to guard against divulging the attorney’s strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 378 (Kos. 2005).

Civil Procedure - Interrogatories
When the plaintiff makes the mere allegation that the work product doctrine applies, this is insufficient to claim the privilege. When the defendant is seeking facts about the state of the decedent’s health when he applied for the insurance policy, and the privilege does not protect facts, the plaintiff will answer the interrogatories. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 378 (Kos. 2005).

Civil Procedure - Admissions
When the requests for admission seek either facts about events on which the claim is based or facts concerning the authenticity of documents, the requests do not involve attorney work product and the plaintiff will answer the requests. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 378 (Kos. 2005).

Civil Procedure - Discovery
Rule 37(a)(4) provides that when a motion to compel is granted, the court shall, after opportunity for hearing, require the party whose conduct necessitated the motion or the party, attorney, or trial counselor advising such conduct or both of them to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney or trial counselor fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. This requirement of the rule is mandatory, and the hearing requirement is satisfied if the party has the opportunity to respond in writing to a potential assessment of attorney’s fees for its failure to respond to discovery. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 378 (Kos. 2005).

Civil Procedure - Summary Judgment; Evidence - Burden of Proof
When a case proceeds to trial, the burden of going forward with evidence as to affirmative defenses is normally on the defendant. However, when the plaintiff seeks summary judgment on the question of liability, the plaintiff must initiate the inquiry even as to affirmative defenses. The party moving for summary judgment has the burden of clearly establishing the lack of any triable issues of fact. The burden extends to affirmative defenses as well as to the plaintiff’s own positive allegations. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 379 (Kos. 2005).

Civil Procedure - Summary Judgment
When plaintiff’s counsel’s assertions about a defendant’s affirmative defense are not supported by any evidence as contemplated by Rule 56 of the FSM Rules of Civil Procedure and the plaintiff does not present any legal authority to support its position, issues of both fact and law remain, and the plaintiff is not entitled to judgment as a matter of law. Sigrah v. Microlife Plus, [2005] FMSC 39; 13 FSM Intrm. 375, 379 (Kos. 2005).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

The motion to compel discovery filed on June 30, 2005, by the defendants ("Microlife") is granted. The motion for summary judgment filed by the plaintiffs ("Sigrah") on July 26, 2005, is denied.

I. Microlife’s Motion to Compel Discovery

A. Document production

Microlife seeks to have Sigrah produce medical records in her possession. Sigrah’s answer to this contention appears to be that Microlife already has these records through the subpoena process. The records are relevant. The parties will confer in order to insure that Microlife has a copy of all medical records in Sigrah’s possession. Sigrah will deliver copies of any records which Microlife does not already have by September 5, 2005.

B. Interrogatories

Microlife also seeks to obtain additional answers to its interrogatories. The answer to interrogatory 1 listed only one trial witness, and Microlife appears to challenge this on the basis that Sigrah would likely call additional witnesses at trial. In fact Sigrah recites additional witnesses in her July 11, 2005 response to Microlife’s motion to compel. These names were apparently obtained as a result of a July 8, 2005 e-mail from Microlife’s counsel. However, the March 15, 2005 order, required the all discovery be completed by June 1, 2005, and the order specifically states that "'completed’ means propounded and answered" (emphasis added). The rules permit an answering party 30 days in which to respond to discovery. To comply with the March 15th order, Sigrah would have had to initiate discovery sufficiently in advance so that Microlife’s answers would have been due no later than June 1, 2005. Sigrah did not initiate discovery until May 30th, or one day before the cutoff date. The file discloses no motion to extend the discovery deadline.

It appears that Microlife did not object to Sigrah’s late discovery, since it served discovery responses on or about July 5, 2005. Assuming for the sake of argument that the July 8, 2005 e-mail would fall within the discovery supplementation provision of Rule 26(e)(1) of the FSM Rules of Civil Procedure, it is likely that Sigrah herself could then, under the same provision, name additional witnesses based on that disclosure. In the usual case, the court would deem Microlife’s July answers to Sigrah’s discovery as a waiver of the untimeliness of that discovery, and permit Sigrah to name the additional witnesses. However, Microlife now understandably asserts that it wants to depose the additional witnesses, which would mean reopening discovery. The court will not permit this. As previously noted, Sigrah should have initiated her discovery sufficiently in advance so that it could have been responded to no later than June 1, 2005, as required by the order dated March 15, 2005. Even if the court would have had to consider reopening discovery, doing so would still have been predicated on Sigrah’s obedience - as opposed to disobedience - of the March 15, 2005, order. Thus, Sigrah will be limited at trial to the one witness it disclosed in its answer to interrogatory 1. In light of this ruling, a further additional answer to Microlife’s interrogatory 1 is not required.

Microlife also seeks to compel the answers to interrogatories 3 and 4, which inquire whether Kingsley Sigrah, who is the plaintiffs’ decedent, had any heart or lung disease prior to the effective date of the insurance policy in dispute. Sigrah contends that the answers to these questions are irrelevant, and also asserts that the answers fall within the attorney work product privilege. Both contentions are incorrect. The answers are plainly relevant, since they go to the question of the truth or falsity of Kingsley Sigrah’s answers to the questions on his insurance application.

On the question of attorney work product, FSM Rule of Civil Procedure 26(b)(3) "protect[s] against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney, trial counselor, or other representative of a party concerning the litigation." The party who asserts the work product privilege must demonstrate that the doctrine applies. Barclays-American Corp. v. Kane, [1984] USCA10 232; 746 F.2d 653, 656 (10th Cir. 1984). In this respect, merely alleging that the doctrine applies is not sufficient. Peat, Marwick, Mitchell & Co. v. West, [1985] USCA10 34; 748 F.2d 540, 542 (10th Cir. 1984), cert. dismissed, 469 U.S. 1199, 105 S. Ct. 983, 83 L. Ed. 2d 984 (1985). "Because the work product doctrine is intended only to guard against divulging the attorney’s strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product." Resolution Trust Corp. v. Dabney, [1995] USCA10 1491; 73 F.3d 262, 266 (10th Cir. 1995). Sigrah makes the mere allegation that the doctrine applies, and this is insufficient to claim the privilege. Further, Microlife is seeking facts about the state of Kingsley Sigrah’s health when he applied for the insurance policy, and the privilege does not protect facts. Sigrah will answer the interrogatories on or before September 5, 2005.

C. Requests for admission

Microlife also seeks to compel the answers to its requests for admission. Sigrah makes the same bare, unsupported assertion of the work product privilege as it did with regard to the interrogatories as to all but two of the requests for admission sought. The requests seek either facts about events on which the claim is based (e.g., no.2, "[a]dmit that the deceased noted on the Enrollment Form that he had not ever 'been diagnosed with, or treated for high blood pressure, diabetes, aids, or HIV, stroke, or any diseases of the heart, arteries, brain, kidney, or lungs.’") or facts concerning the authenticity of documents (e.g., "[a]dmit that the attached exhibit C is a true and correct copy of the Patient History of Kingsley Sigrah for April 26, 2002.") These requests, like the interrogatories, do not involve attorney work product. Sigrah will answer the requests for admission on or before September 5, 2005.

D. Discovery sanctions

Rule 37(a)(4) of the FSM Rules of Civil Procedure provides that where a motion to compel is granted,

the court shall, after opportunity for hearing, require the party . . . whose conducessitated thed the motion or the party, attorney, or trial counselor advising such conduct or both of them to pay the moving pahe reble expenses incurred in obtaining the order, including attorney or trial counselunselor feor fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

(emphasis added). This requirement of the rule is mandatory. The hearing requirement is satisfied if the party has the opportunity to respond in writing to a potential assessment of attorney’s fees for its failure to respond to discovery. Adams v. Island Homes Constr., Inc., [2001] FMSC 40; 10 FSM Intrm. 466, 469 (Pon. 2001). Sigrah will have until September 5, 2005, to submit in writing an explanation to the court why the attorney’s fees that Microlife incurred in bringing its motion to compel discovery responses should not be assessed against Sigrah and/or her counsel.

II. SIGRAH’S Motion for Summary Judgment

On July 26, 2005, Sigrah filed her motion for summary judgment. Microlife responded by seeking an enlargement of time to respond to the motion. In addition, Microlife relies on FSM Dev. Bank v. Rodriguez, [1985] FMSC 2; 2 FSM Intrm. 128, 130 (Pon. 1985), and urges that the motion should be denied now, without further response by Microlife, because in her motion, Sigrah does not address the affirmative defenses that Microlife alleges in its amended answer. The amended answer alleges the affirmative defense of fraud and failure to give truthful answers in an insurance application. Microlife alleges that the plaintiffs’ decedent, Kingsley Sigrah, was suffering from advanced congestive heart and lung disease when he applied for the life insurance policy at issue, and did not respond truthfully to questions on the application about those illnesses.

Rodriguez states as follows:

When a case proceeds to trial, the burden of going forward with evidence as to affirmative defenses is normally on the defendant. However, when the plaintiff seeks summary judgment on the question of liability, the plaintiff must initiate the inquiry even as to affirmative defenses. The party moving for summary judgment has the burden of clearly establishing the lack of any triable issues of fact. The burden extends to affirmative defenses as well as to the plaintiff’s own positive allegations.

2 FSM Intrm. at 130 (citation omitted). Sigrah engages in a brief discussion of the defense at p. 7 of her motion, at least to the extent that counsel asserts that the answers on the application were in fact honestly made. However, such representations by counsel are not supported by any evidence as contemplated by Rule 56 of the FSM Rules of Civil Procedure. Nor does Sigrah present any legal authority to support its position, which seems to be that if the answers were honestly made, then their truth is immaterial. Issues of both fact and law remain, and Sigrah is not entitled to judgment as a matter of law. Accordingly, Sigrah’s motion for summary judgment is denied.

III. OTHER Motions

Microlife seeks an enlargement of the time for filing of pretrial motions. The prior pretrial motion date was July 1, 2005, and that date is vacated nunc pro tunc. Microlife’s motion is granted, since Sigrah failed to respond to discovery in a timely fashion, thus necessitating the motion to compel. Microlife states that it requires the discovery responses in order to file its own motion for summary judgment.

Any further pretrial motions will be filed on or before October 3, 2005. Sigrah’s motion to extend the time for filing pretrial motions is moot by virtue of Microlife’s similar motion.

Any pending motions not specifically addressed herein are denied as moot.

To recap, September 5, 2005, is the date for Sigrah to answer outstanding discovery and to respond to the potential discovery sanctions issue. October 3, 2005, is the new pretrial motion date.

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