United States District Court, E.D. Michigan, Southern Division
R. Grand Mag. Judge.
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO
COMPEL THE PRODUCTION OF DEFENDANTS' INSURER STATEMENT
E. Levy United States District Judge.
an auto negligence action stemming from a car crash in March
2018. (ECF No. 1.) Plaintiff Caldwell alleges that Defendant
Carreau unlawfully changed lanes and struck Plaintiff.
(Id. at PageID.2.) Plaintiff further alleges that
Defendant Carreau's employer, Defendant Cardinal
Logistique, is vicariously liable for Defendant Carreau's
negligence. (Id. at PageID.5-6.)
the Court is Plaintiff's motion to compel the discovery
of Defendant Carreau's statement to Defendant
Cardinal's insurer. (ECF No. 34.) Because Defendants did
not respond to Plaintiff's interrogatories until more
than three months had passed-well beyond the thirty-day
deadline specified in Federal Rules of Civil Procedure 33 and
34- Defendants waived their objections and must produce the
statement. Plaintiff's motion to compel is GRANTED.
April 14, 2019, Plaintiff served Defendants with
interrogatories and document production requests pursuant to
Federal Rules of Civil Procedure 33 and 34. (ECF No. 34-1,
PageID.290-293.) Both Rules require that parties respond with
any answers or objections within thirty days. Fed.R.Civ.P.
33(b)(2); 34(b)(2)(A). Both Rules allow parties to seek a
stipulated extension of the timelines, and Rule 33
specifically provides that failure to timely object may
result in a waiver of any objection. Fed.R.Civ.P. 33(b)(4).
On July 30, 2019, Defendants untimely responded to
Plaintiff's requests and asserted several objections and
October 21, 2019, Plaintiff filed a motion to compel various
items of discovery from Defendants. (ECF No. 31.) After
striking the motion as nonconforming with chambers guidelines
and holding a conference with the parties, the Court ordered
Defendants to produce a majority of Plaintiff's requested
items. (ECF No. 35.) However, a dispute remained regarding a
June 2018 statement that Defendant Carreau provided to
Defendant Caldwell's insurer. (See ECF No. 36-2,
PageID.378.) The Court granted the parties leave to brief
this final outstanding issue: whether statements given to
insurers are protected under the work-product privilege as a
document made “in anticipation of litigation.”
(See ECF No. 35, PageID.367.)
reviewed the parties' briefs and documents, the Court now
concludes that Defendants' untimely responses to the Rule
33 and 34 requests constituted a waiver of all objections,
including privileges, and it is unnecessary to reach the
question of whether the insurer statement is privileged.
Defendants must produce the statement.
Rule of Civil Procedure 33 governs interrogatories, and
Federal Rule of Civil Procedure 34 governs document
production. Both Rules establish a thirty-day deadline for
responses, and Rule 33 explicitly notes that untimely
objections “[are] waived unless the court, for good
cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4).
District courts in the Sixth Circuit have held that the
waiver applies to both Rule 33 interrogatories and Rule 34
document production requests. Firneno v. Nationwide
Marketing Services, Inc., No. 14-10104, 2015 WL
132805453, at *3 (E.D. Mich. Dec. 10, 2015) (“Although
Rule 34, unlike Rule 33, does not specifically state that
objections are waived after 30 days, the considerable weight
of authority is that the failure to timely object to requests
for production of documents also constitutes a
waiver.”); See also Patton v. Aerojet Ordinance
Co., 765 F.2d 604, 609 (6th Cir. 1985) (noting that the
district court should have “determined whether
defendants failed timely to object to the answers and whether
they thereby waived any objection”); Carfagno v.
Jackson Nat. Life Ins. Co., No. 99-118, 2001 WL
34059032, at *1 (W.D. Mich. Feb. 13, 2001) (“As a
general rule, failure to object to discovery requests within
the thirty days provided by Rules 33 and 34 constitutes a
waiver of any objection.”) (quoting Richmark Corp.
v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th
waiver applies to objections based on privilege. Hennigan
v. Gen. Electric Co., No. 09-11912, 2011 WL 1321444, at
*1-4 (E.D. Mich. June 1, 2011) (finding that the defendant
waived both its attorney-client privilege and its
work-product privilege due to its failure to assert them
within thirty days of the plaintiff's discovery request);
Cleveland Indians Baseball Co. v. United States, No.
96-2240, 1998 WL 180623, at *4 (N.D. Ohio Jan. 28, 1998)
(“This rule applies with equal force to all objections,
including those based on attorney-client privilege or
attorney work product.”).
waiving a party's discovery objections, courts must first
determine that the waiver is “equitable.”
Carfagno, 2001 WL 34059032, at *1. That is, courts
should “examine the circumstances of each case,
including the reason for tardy compliance, prejudice to the
opposing party, and the facial propriety of the discovery
requests.” Id., see also Firneno,
2015 WL 132805453, at *3 (finding that the defendant waived
all discovery objections but ordering production of only
certain relevant documents). For the following reasons, the
Court finds that Defendants have waived their right to assert
a work-product privilege to the insurer statement, and that
the waiver is equitable.
case, Defendants have not provided an explanation as to why
they waited more than three months to assert their objections
and privileges. (See ECF No. 34-1, PageID.290-317.)
When Plaintiff pointed out the delay in her supplemental
briefing, (ECF No. 34, PageID.284), Defendants declined to
respond. The circumstances do not, therefore, excuse
Defendants' late response.
prejudice, “one type of prejudice is the delay in
obtaining responsive documents, ” while “the
other prejudice is the failure to obtain relevant documents
at all.” Hennigan, 2011 WL 13214444, at *4.
Defendants argue that Plaintiff has no substantial need for
the insurer statement because “[Plaintiff] will have
the opportunity to depose Carreau in discovery.” (ECF
No. 36, PageID.370.) However, the statements-made more than a
year apart-may not contain the same information. As Plaintiff
points out, Defendant Carreau's statement may be
“contradictory to his anticipated deposition testimony,
or the defenses made in this case.” (ECF No. 34,
PageID.287.) While the prejudice to Plaintiff is not as
significant as it would be were Defendant Carreau an
unavailable deponent, Plaintiff would certainly be prejudiced