Case 5:09-cv Document 22 Filed 06/29/10 Page 1 of 5 PageID #: 405

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1 Case 5:09-cv Document 22 Filed 06/29/10 Page 1 of 5 PageID #: 405 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BECKLEY MARY WEBB, individually, and in her capacity as Administratrix of the Estate of Robert A. Webb, Plaintiffs, v. Civil Action No. 5:09-cv-1253 Honorable Irene C. Berger RALEIGH COUNTY SHERIFF S DEPARTMENT; RALEIGH COUNTY COMMISSION; SHERIFF DANNY MOORE, individually and in his official capacity; CHIEF DEPUTY STEVE TANNER, individually and in his official capacity; DEPUTY GREG S. KADE, individually and in his official capacity; and DEPUTY JOHN E. HAJASH, individually and in his official capacity, Defendants. PLAINTIFF S REPLY MEMORANDUM TO DEFENDANT S GREG S. KADE S RESPONSE TO MOTION TO COMPEL RESPONSES TO PLAINTIFF S FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUESTS FOR ADMISSION TO DEFENDANT GREG S. KADE NOW COMES PLAINTIFF, Mary Webb, individually and in her capacity as Administratrix of the Estate of Robert A. Webb, by counsel, Michael A. Olivio and Travis A. Griffith, and respectfully in reply to Defendant Greg S. Kade s Response to Plaintiff s Motion to Compel Responses to Plaintiff s First Set of Interrogatories, Requests for Production of Documents, and Requests for Admission to Defendant Greg S. Kade hereby state as follows: STATEMENT OF ADDITIONAL APPLICABLE FACTS The procedural history of the instant case has some significance with regard to the discovery at issue. Specifically, this case was originally filed in the Circuit Court of Raleigh

2 Case 5:09-cv Document 22 Filed 06/29/10 Page 2 of 5 PageID #: 406 County, West Virginia and assigned to Judge Kirkpatrick on May 5, However, Judge Kirkpatrick quickly recused himself and the case was submitted to Judge Hutchinson. Thereafter, the Plaintiff filed the subject discovery response. However, on November 5, 2008, Judge Hutchinson recused himself and the case was placed before a third judge. Finally, the Plaintiffs amended their complaint and the matter was removed to this Court on November 16, Since the original Complaint was filed, this is the first time anyone has had to request the Court for assistance. The original discovery was filed pursuant to the West Virginia Rules of Civil Procedure and there is no local rule regarding service of motions to compel in West Virginia. At this point, there have been several depositions and trial is scheduled for January of Consequently, the parties, and Plaintiff in particular, are reviewing this matter to determine what other actions must occur in preparation for trial. Nevertheless, Plaintiff wish to have this discovery dispute resolved as there are other discovery issues which will be addressed by the parties next. ARGUMENT With regard to Defendant Kade s response to Plaintiff s motion to compel, Plaintiff respectfully submits to the Court that Defendant Kade has cited the wrong rule for the improper purpose of depriving Plaintiff of discovery to which she is clearly entitled. Plaintiff has previously cited in her motion to compel to the appropriate ruling which demonstrates the true purposes behind Rule 33 of the Federal Rules of Civil Procedure and the discrete subparts portion of the rule. Defendant Kade made no attempt to respond to the arguments with regard to the Rule. Consequently, Plaintiff will not re-recite those clear rulings here. Instead, Plaintiff will point out the procedural history of this case and submit to the Court that the Local Rule to which Defendant Kade cites was not established for the purpose to which Kade is attempting to

3 Case 5:09-cv Document 22 Filed 06/29/10 Page 3 of 5 PageID #: 407 use it. In the event it was, Plaintiff would not know what date the appropriate time for the motion to compel would fall. The date could fall on the date of removal, the date of the Rule 26 conference, the date the scheduling order was entered, etc. Nevertheless, Plaintiff will note that a district court has significant discretion "to decide when a departure from its Local Rules should be excused or overlooked." Somlyo v. J. Lu-Rob Enter., Inc., 932 F.2d 1043, 1048 (2d Cir. 1991); see also Braxton v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir. 1984). At this point, Plaintiff is still left with discovery options which would further involve the Court in the discovery process despite the fact that the Courts encourage parties to resolve their discovery disputes on their own. Plaintiff contemplating additional interrogatories to Defendant Kade prior to the Court s deadline of June 30, 2010 requesting additional information to be used at trial. 1 This leaves Defendant Kade two options, assert the same objection pursuant to Rule 33 s discrete subpart provision or answer the discovery. If Defendant Kade asserts the same objection, Plaintiff can then (after making the appropriate attempt to resolve the dispute) quickly file a nearly identical motion that is currently before the Court and seek a ruling. If granted, Plaintiff can then make another motion to compel for the previous discovery asserting that the objection has been deemed invalid and Defendant Kade has a duty to supplement and correct those responses pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. However, if Defendant Kade responds to Plaintiff s next set of interrogatories without noting the previous objection, Plaintiff then has the option to file a motion pursuant to Rule 37(a)(3) asserting that Defendant Kade s responses to the original set of discovery requests was evasive, incomplete and in made in bad faith. This too would be a nearly identical motion to the one currently before the Court. 1 Plaintiff s First Set of Interrogatories to Defendant Kade only made eighteen requests.

4 Case 5:09-cv Document 22 Filed 06/29/10 Page 4 of 5 PageID #: 408 Finally, Plaintiff has the option to convert the remaining depositions of parties Steve Tanner and Danny Moore into depositions duces tecum and obtain the documents requested. In the event these matters are refused to be produced by the current Sheriff, Plaintiff will again be forced to move to compel these requested disclosures. Or, Defendant Kade can answer seven more interrogatories and provide Plaintiff with a complete copy of his Raleigh County Sheriff s Department policy manual. Therefore, Plaintiff requests the Court enter an Order requiring Defendant Kade to fully answer Plaintiff s requests. WHEREFORE, Plaintiff requests this Court enter an Order compelling Defendant Greg S. Kade to respond to the aforementioned discovery requests, for the fees associated in bringing this Motion, and for any such further relief this Court deems necessary and appropriate. MARY WEBB, individually and in her capacity as Administratrix of the Estate of Robert Webb By Counsel /s/ Travis A. Griffith Michael A. Olivio (WVSB No. 7923) Travis A. Griffith (WVSB No. 9343) OLIVIO & GRIFFITH, PLLC 813 Quarrier Street Charleston, WV (304) Telephone (304) Facsimile

5 Case 5:09-cv Document 22 Filed 06/29/10 Page 5 of 5 PageID #: 409 CERTIFICATE OF SERVICE We, Michael A. Olivio and Travis A. Griffith, counsel for Plaintiff Mary Webb, individually, and in her capacity as Administratrix of the Estate of Robert A. Webb, do hereby certify that a true and exact copy of the foregoing PLAINTIFF S REPLY TO DEFENDANT GREG S. KADE S RESPONSE TO PLAINTIFF S MOTION TO COMPEL RESPONSES TO PLAINTIFF S FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUESTS FOR ADMISSION TO DEFENDANT GREG S. KADE was made upon the parties listed below by placing a properly addressed envelope, postage prepaid, and deposited in the United States mail this 29 th day of June, 2010 to: Chip E. Williams, Esq. Pullin Fowler Flanagan Brown & Poe, PLLC 600 Neville Street Suite 201 Beckley, WV Counsel for Raleigh County Sheriff s Department, Raleigh County Commission, Sheriff Danny Moore, Chief Deputy Steve Tanner and Deputy Greg S. Kade Kermit J. Moore, Esquire Brewster, Morhous, Cameron, Caruth, Moore, Kersey & Stafford, P.L.L.C. P.O. Box 529 Bluefield, WV Counsel for Deputy John E. Hajash /s/ Travis A. Griffith Michael A. Olivio (WVSB No. 7923) Travis A. Griffith (WVSB No. 9343) OLIVIO & GRIFFITH, PLLC 813 Quarrier Street Charleston, WV (304) Telephone (304) Facsimile