K.4 Memorandum in Support of to Compel Answers

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

[][CONSUMER], on behalf of herself and all others similarly situated,

Plaintiff,

[vs]

[]AMERICAN GENERAL CONSUMER DISCOUNT COMPANY,

Defendant.

[action]NO. 97-

MEMORANDUM OF IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S OBJECTIONS AND TO COMPEL ANSWERS TO INTERROGATORIES, EXPERT INTERROGATORIES AND OF DOCUMENTS

I. INTRODUCTION

This is a consumer arising out of the Defendant’s unconscionable lending practices. American General “flips” lower rate loans into additional high rate loans and packs the loans with unnecessary, extravagantly priced insurance products issued by affiliated insurance companies. Plaintiff sues for violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. and common law fraud and unconscionability. Initially, Defendant objected to 100% of Plaintiff’s interrogatories. After a lengthy telephone conversation, Defendant’s counsel still objected to over 37 Interrogatories and to date all Interrogatories remain unanswered and the Document Request has been answered insufficiently.

II. STATEMENT OF FACTS

On August 13, 1997, Plaintiff served Defendant with Interrogatories (First Set) and Request for Production of Documents (First Set).

A. DEFENDANT’S FAILURE TO PRODUCE ANY DOCUMENTS RESPONSIVE TO REQUEST FOR PRODUCTION OF DOCUMENTS (FIRST SET) On or about September 12, 1997, Defendant responded to Plaintiff’s Request for Production. During an extended telephone conversation between counsel for Plaintiff and counsel for Defendant, Defendant’s counsel agreed to produce documents responsive to Document Requests Nos. 1–18. See, Flitter November 7, 1997 letter and Bryce letter of November 21, 1997. On January 6, 1998, Defendant submitted un-indexed bate-stamped documents D0001–D0345. Defendant admits that these documents represent some, but obviously not all of Defendant’s policies and procedures regarding lending and insurance. Review of the documents indicates that they refer to additional policies and procedures not produced. As discussed below, all responsive documents must be produced.

The unlabelled responses to the Document Requests are non-responsive as they fail to adequately identify the attached documents and the fail to identify which, if any, are responsive to the individual document requests.

B. UNANSWERED INTERROGATORIES

During the extended telephone conversation concerning , Defendant, through counsel, agreed to Interrogatory Nos. 4, 5, 15, 17–28, 42–43, 55–62. See, Flitter letter of November 7, 1997. By Mr. Bryce’s letter dated November 21, 1997, Defendant reconsidered and withdrew objections to Interrogatories nos. 19–23 and 61. (See Bryce letter, Exhibit “H”) [not reprinted herein]. Though the Plaintiff allowed an additional month, until December 15th, no supplemental responses have been forthcoming whatever. On January 29, 1998, Plaintiff’s counsel sent another reminder letter to Defendant that Defendant’s Answers to Plaintiff’s Interrogatories were outstanding. To date those Answers have not been provided.

III. LEGAL ARGUMENT

A. UNOBJECTIONABLE INTERROGATORIES MUST BE ANSWERED FORTHWITH

As noted, although Defendant originally objected to every Interrogatory on some basis, an extended telephone conference resulted in Defendant’s agreement to withdraw objections to Interrogatories Nos. 4, 5, 15, 18, 42, 43, 55, 58–60, 62 and agreed to provide partial responses to Interrogatories 17, 24–28, 56 and 57. See, Flitter letter of November 7, 1997 and Bryce reply letter of November 21, 1997. Two weeks later Defendant agreed to withdraw other objections, and agreed to answer Interrogatories Nos. 19–23 and 61. See, Bryce letter, November 21, 1997. Notwithstanding the withdrawal of objections, Plaintiff’s Interrogatories, submitted in August 1997, have still not been answered at all. As to Interrogatories Nos. 4, 5, 15, 17–28, 42–43, 55– 62, the Court should Order that they be answered forthwith. Fed.R.Civ.P. 37(a). As to the remaining Interrogatories, for the reasons set forth below, the objections should be stricken.

B. DEFENDANT’S OBJECTIONS TO THE INTERROGATORIES MUST BE STRICKEN

Interrogatory Numbers 1 and 2.

Interrogatory 1 asks: Identify each person Defendant may call as a witness in this case.

Interrogatory 2 asks:

Identify each document which Defendant may introduce into evidence in this case.

Defendant responded:

See General Objections. American General further objects on the grounds that this interrogatory is premature.

These interrogatories are not premature. Interrogatories seeking the identity of witnesses and other tangible evidence may be sought, even if a case is in its infancy. Fischer and Porter Co. v. Tolson, 143 F.R.D. 93 (E.D. Pa. 1992). Answers are needed to help focus discovery in the case and to prepare to refute Defendant’s defenses. This case was removed to this Court on August 15, 1997. Defendant’s objections should be stricken and Defendant ordered to answer the interrogatories.

Interrogatory Number 6.

Plaintiff’s Interrogatory No. 6 asks:

Provide the following information for all persons who were involved in any manner in the adoption or drafting of the forms represented by Appendices A and B hereto; full name, present or last known home and business addresses and telephone numbers; whether presently employed by Defendant; all job title(s) and dates during which each job was held; if not presently employed by Defendant, Social Security Number and exact date of birth.

Defendant objected claiming:

See General Objections. American General further objects on the ground that the information sought is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.

General, unspecified objections to interrogatories are insufficient and improper. Josephs v. Harris Corp., 677 F.2d 985 (3rd Cir. 1982); Stabilus, A Div of Fichtel, Baldwin, Johnson and Greaves, 144 F.R.D. 258 (E.D. Pa. 1992).

Relevance in the context of discovery is construed more liberally than at . Fort Washington Resources, Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa. 1994). Information which is reasonably likely to lead to “other matter which could bear on any issue that is or may be in the case” is relevant. Id. (citing Leksi, Inc. v. Federal Ins. Co., 129 F.R.D. 99, 104 (D.N.J. 1989)). The answer to Interrogatory No. 6 is relevant to determine who prepared Defendant’s documents and whether Defendant’s employees deliberately attempted to deceive Defendant’s customers. It may lead to information about the number of such forms in use by Defendant, which is relevant to issues of numerosity and commonality.

Interrogatory Numbers 7 to 13.

Defendant objected to Interrogatories 7–13 although they directly address the numerosity and commonalty issues involved in this class action. These Interrogatories were amended during the November 6, 1997 telephone conference, for Defendant to provide the number of borrowers and the state of each in lieu of a full answer at this time.

Plaintiff’s amended Interrogatory Number 7 asks:

Identify by state, the number of all customers of Defendant from July 1991 through the present who obtained additional loans or refinancings and purchased credit insurance from you substantially similar to Appendix “C”.

Plaintiff’s amended Interrogatory Number 8 asks:

Identify by state, the number of persons that Defendant sold credit life insurance policies to, from July 1991 until present in a form substantially similar to Appendix “B”.

Plaintiff’s amended Interrogatory Number 9 asks:

Identify by state, the number of persons that Defendant sold credit disability policies to, from July 1991 until present in a form substantially similar to Appendix “C”.

Plaintiff’s amended Interrogatory Number 10 asks:

Identify by state, the number of persons that Defendant sold collateral protection policies to, from July 1991 until present in a form substantially similar to Appendix “D”.

Plaintiff’s amended Interrogatory Number 11 asks:

Identify by state, the number of persons that Defendant sold nonfiling insurance policies to, from July 1991 until present.

Plaintiff’s amended Interrogatory Number 12 asks:

Identify by state, the number of persons who refinanced their loans with you from July 1991 through the present who did not purchase any insurance from you.

Plaintiff’s amended Interrogatory Number 13 asks:

Identify by state, the number of persons that Defendant sold term life insurance policies from July 1991 until present in a form substantially similar to Appendix “D”. Defendant objected to these interrogatories claiming:

See General Objections. American General further objects to [these] interrogator[ies] on the grounds that, since a class has not been certified, the names and addresses of its customers are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; providing such names and addresses would be unduly burdensome; and providing such names and addresses would invade the privacy of American General’s customers.

The information is relevant especially regarding the issue of whether the class action should be certified. Rule 23(a)(1) requires that the proponent of a class action demonstrate that “the class is so numerous that is impracticable.” Fed.R.Civ.P. 23(a)(1). The answers to these interrogatories are appropriate to prove numerosity. These interrogatories are also relevant and probative on this issue of commonality because the greater number of Defendant’s customers who underwent purchases similar to Plaintiff evidences Defendant’s concerted effort to pack loans with high priced insurance. Fed.R.Civ.P. 23(a)(2). See Robinson v. Countrywide Credit Industries, No. 97-2747, 1997 U.S. Dist. LEXIS 15712 (E.D. Pa. Oct. 8, 1997) (common issues included whether the Defendant lender purchased unauthorized coverage for the consumer borrowers, inflated the amount of forced placed insurance and improperly inflated commissions).

These limited interrogatories only seek the number of customers, not their finances. Such an inquiry is not an invasion of privacy. See Russ Stonier, Inc. v. Droz Wood Co., 52 F.R.D. 232 (E.D. Pa. 1971)(disclosure of customer list allowed). In addition, the request is not too burdensome. The requests are limited in scope and time and it is likely that this information is electronically stored and available. Such statistical data is appropriate and not subject to objection. See Naglak v. Pennsylvania State University, 133 F.R.D. 18, 24 (M.D. Pa. 1990). Finally, as these interrogatories are probative to the class certification issue, the objections must be stricken and Defendant must be ordered to answer them.

Interrogatory Number 14.

Plaintiff’s Interrogatory Number 14 asks:

Identify every person who has or who claims to have knowledge or information regarding any facts, circumstances or issues in this . With respect to each and every person named, state:

(a) Whether this person has given an oral or written statement, and if so, designate which; (b) A summary of the knowledge relevant to this lawsuit that each such person has or claims to have.

Defendant objected claiming “See General Objections.” General, unspecified objections to interrogatories are insufficient and improper. Josephs v. Harris Corp., 677 F.2d 985 (3rd Cir. 1982); Stabilus, A Div of Fichtel, Baldwin, Johnson and Greaves, 144 F.R.D. 258 (E.D. Pa. 1992). The answers are needed to identify those individuals with knowledge of the acts alleged in the . Seeking the identity of fact witnesses is completely permissible. Fischer and Porter Co. v. Tolson, 143 F.R.D. 93 (E.D. Pa. 1992). Defendant’s objection must be stricken.

Interrogatory Number 16.

Plaintiff’s Interrogatory Number 16 asks:

Prior to the date of filing of this lawsuit, did Defendant have any attorney or any other person advise Defendant as to whether its business practices were in compliance with the Truth in Lending Act? If so, please identify each such person.

Defendant objected claiming:

See General Objections. American General further objects on the ground that the information sought is neither reasonably calculated to lead to the discovery of admissible evidence.

First, if Defendant was advised by individuals who were not attorneys, then the attorney- client privilege does not apply. Second, Defendant has failed to demonstrate how or why this Interrogatory is burdensome. See, Hall v. Harleysville Ins. Co., 164 F.R.D. 406 (E.D. Pa. 1996). Finally, the request is relevant to corroborate whether Defendant knew it was violating the Truth in Lending Act.

Interrogatories Numbers 29–30, 32–33, 35–36.

Plaintiff’s Interrogatory Numbers 29–30, 32–33, 35–36 concern Defendant’s relationship with the insurance companies whose products it sold to Plaintiff.

Interrogatory Number 29 asks:

(a) What is the relationship between you and Yosemite Insurance Company? (b) Do you have any ownership interest in Yosemite Insurance Company? If yes, please explain.

Interrogatory Number 30 asks:

Are you under contract (formal or informal) to sell insurance on behalf of Yosemite Insurance Co.? If yes, set forth in detail the terms of the agreement including provisions for payment of commission(s), fees and expenses.

Interrogatory Number 32 asks:

(a) What is the relationship between you and Protective Life Insurance Co.? (b) Do you have any ownership interest in Protective Life Insurance Co. If yes, please explain.

Interrogatory Number 33 asks:

Are you under contract (formal or informal) to sell insurance on behalf of Protective Life Insurance Co.? If yes, please set forth in detail the terms of the agreement including provisions for payment of commission(s), fees and expenses.

Interrogatory Number 35 asks:

(a) What is the relationship between you and Union Fidelity Insurance Company? (b) Do you have any ownership interest in Union Fidelity Life Insurance Co. If yes, please explain.

Interrogatory Number 36 asks:

Are you under contract (formal or informal) to sell insurance on behalf of Union Fidelity Life Insurance Company? If yes, please set forth in detail the terms of the agreement including provisions for payment of commission(s), fees and expenses.

Defendant objected to each of these Interrogatories claiming:

See General Objections.

General, unspecified objections to interrogatories are insufficient and improper. Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982); Stabilus, A Div of Fichtel, Baldwin, Johnson and Greaves, 144 F.R.D. 258 (E.D. Pa. 1992).

It is probative to know the financial arrangement Defendant had with these insurance companies. They are believed to be affiliated companies. Is Defendant earning more money from the insurance business than from the lending business? These interrogatories are relevant on the issue of Defendant’s incentive to sell unwanted and overpriced insurance products to consumers as part of its routine consumer lending. Plainly, these interrogatories are relevant issues for discovery purposes. See Fort Washington Resources v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa. 1994). Accordingly, the objections must be stricken.

Interrogatories Numbers 31, 34, 37–41.

Interrogatories Numbers 31, 34, 37–41 concern the percentage of customers who refinanced their loans with Defendant who also purchased insurance.

Interrogatory Number 31 asks: Identify the percentage of customers who refinanced their loans with you from July 1991 through the present who also purchased credit property insurance from you.

Interrogatory Number 34 asks:

Identify the percentage of customers who refinanced their loans with you from July 1991 through the present who also purchased term life insurance from you.

Interrogatory Number 37 asks:

Identify the percentage of customers who refinanced their loans with you from July 1991 through the present who also purchased single life insurance and/or disability insurance from you.

Interrogatory Number 38 asks:

Identify the percentage of customers who refinanced their loans with you from July 1991 through the present who also purchased “collateral protection” insurance from you.

Interrogatory Number 39 asks:

Identify the percentage of customers who refinanced their loans with you from July 1991 through the present who also purchased non-filing insurance from you.

Interrogatory Number 40 asks:

Identify the percentage of customers who refinanced their unsecured loan with you from July 1991 through the present who also purchased non-filing insurance from you.

Interrogatory Number 41 asks:

Identify the percentage of customers who refinanced their loans with you from July 1991 through the present who did not purchase any insurance from you.

Defendant objected to each of these interrogatories claiming:

See General Objections.

As stated above, general, unspecified objections to interrogatories on the ground of work product or attorney client privilege is insufficient and improper. Josephs v. Harris Corp., 677 F.2d 985 (3rd Cir. 1982); Stabilus, A Div of Fichtel, Baldwin, Johnson and Greaves, 144 F.R.D. 258 (E.D. Pa. 1992).

An interrogatory is not objectionable simply because it seeks information which requires research and compilation of data. Hall v. Harleysville Ins. Co., 164 F.R.D. 406 (E.D. Pa. 1996); Naglak v. Pennsylvania State University, 133 F.R.D. 18 (M.D. Pa. 1990). This data should be on Defendant’s computers and it should be relatively easy for Defendant to compute the numbers. Further, the information sought is relevant for both the class action issues and the substantive claims. Regarding the class action issues, the interrogatories are relevant on the issue of commonalty, i.e. to what extent Plaintiff’s experience is similar to other customers. See Fed.R.Civ.P. 23(a)(2). The interrogatories are also relevant on the issue of whether the insurance sales were truly voluntary or in fact coerced. See In re Milbourne, 108 B.R. 522, 542 (Bky., E.D. Pa. 1989) (Evidence that a very high percentage of customers purchase insurance is probative in customer’s attempt to establish that insurance was required even where it was professed to be voluntary). If the sales were not truly voluntary, the cost of the premiums should be disclosed as part of the finance charge under the Truth in Lending Act, 15 U.S.C. § 1601 et seq. Plaintiff’s objections are ill-founded and unspecific. Therefore, they must be stricken.

Interrogatories Numbers 44–54.

Interrogatory Numbers 44–54 concern the commissions, profits and fees Defendant received from the various insurance companies whose products it sold to Plaintiff.

Interrogatory Number 44 asks:

(a) Regarding the purchase of the non-filing1 insurance, did you at any time receive a rebate from the insurer regarding the purchase of non-filing insurance? (b) If yes, explain when you received the rebate and the amount of the rebate.

Interrogatory Number 45 asks:

Identify the amount of commission(s), profits and/or fees you received for selling Plaintiff credit life insurance.

Interrogatory Number 46 asks:

Identify the total amount of commission(s), profits and/or fees you received for selling credit life insurance to your customers from July 1991 through the present.

Interrogatory Number 47 asks:

Identify the amount of commission(s), profits and/or fees you received for selling Plaintiff credit disability insurance.

Interrogatory Number 48 asks:

1 “Non filing Insurance” is insurance creditors elect to purchase against the potential consequences of not filing the documents necessary to perfect their security interest. See 15 U.S.C. § 1605(d)(2). Identify the total amount of commission(s), profits and/or fees you received for selling credit disability insurance to your customers from July 1991 through the present.

Interrogatory Number 49 asks:

Identify the amount of commission(s), profits and/or fees you received for selling Plaintiff “collateral” protection insurance.

Interrogatory Number 50 asks:

Identify the total amount of commission(s), profits and/or fees you received for selling “collateral” protection insurance to your customers from July 1991 through the present.

Interrogatory Number 51 asks:

Identify the amount of commission(s), profits and/or fees you received for selling Plaintiff nonfiling insurance.

Interrogatory Number 52 asks:

Identify the amount of commission(s), profits and/or fees you received for selling to all your customers “nonfiling insurance” from July 1991 through the present.

Interrogatory Number 53 asks:

Identify the amount of commission(s), profits and/or fees you received for selling Plaintiff term life insurance.

Interrogatory Number 54 asks:

Identify the amount of commission(s), profits and/or fees you received for selling term life insurance to your customers from July 1991 through the present.

Defendant objected to each of these Interrogatories again claiming:

See General Objections.

As stated above, general, unspecified objections to interrogatories are insufficient and improper. Josephs v. Harris Corp., 677 F.2d 985 (3rd Cir. 1982); Stabilus, A Div of Fichtel, Baldwin, Johnson and Greaves, 144 F.R.D. 258 (E.D. Pa. 1992). The answer to each of these interrogatories is relevant to whether there are Truth in Lending and consumer fraud violations. If Defendant is obtaining rebates, profits and commissions for the insurance at rates which exceed the lawful maximums actions may be violations. Profit data or commission data is also evidentiary on the pervasiveness of the practice or itself a violation of law, if excessive. Defendant’s ill-founded objections must be stricken. Interrogatory Number 63.

Plaintiff’s Interrogatory number 63 asks:

Identify all other in which you have been named in the past 5 years which alleged any violation of the Truth in Lending Act. Include counsel names and addresses. Defendant again objected stating:

See General Objections.

Interrogatories which ask whether Defendant has been sued by other customers in similar lawsuits are relevant and proper. See Corrigan v. Methodist Hospital, 158 F.R.D. 54 (E.D. Pa. 1994) (Court ruled that requests for information seeking and expert reports from any other medical malpractice lawsuits are acceptable, if properly limited). In our case, Plaintiff’s interrogatory is limited and narrow in scope. It is only for a time frame of five years and only concerns lawsuits involving the Truth in Lending Act. The Interrogatory is probative on the issue of notice and intent on behalf of Defendant and may lead to discovery of evidence. Accordingly, Defendant’s objection should be stricken.

Interrogatory Number 64.

Plaintiff’s Interrogatory Number 64 asks:

Identify each person who prepared, provided information or assisted in the preparation of your answers to the forgoing interrogatories and the accompanying document request.

Defendant again objected stating:

See General Objections.

However, an interrogatory seeking the names of persons who assisted in the preparation of the interrogatories is permissible. Ballard v. Allegheny Airlines, Inc., 54 F.R.D. 67 (E.D. Pa. 1972). Defendant’s objection should be stricken.

C. DEFENDANT’S RESPONSE TO PLAINTIFF’S DOCUMENT REQUEST IS UNACCEPTABLE

Plaintiff lodged Document Requests. Defendant withdrew objections to Requests 1–18. Defendant reaffirmed objection to Requests 19–20. See, Flitter letter of November 7, 1997 and Bryce Letter of November 21, 1997. On January 6, 1998, Defendant submitted over 345 pages of documents assumedly in response to Request No. 9. which seeks: 9. All operating manuals, memoranda or other documents concerning internal procedures of Defendant regarding the sale of insurance products, including “collateral protection”, credit life, credit disability, nonfiling and/or term life insurance.

Fed.R.Civ.Pro. 34(b) provides in part:

A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

Defendant has failed to organize and label the responsive documents. Defendant is left to guess which documents, if any, are responsive to the individual document requests. This is impermissible. See Fed.R.Civ.Pro. 34(b); Stiller v. Arnold, 167 F.R.D. 68 (N.D. Ind. 1996). The documents appear to be some of Defendant’s policies and procedures regarding lending and insurance. However, the documents are not all of the documents responsive to Document Request No. 9. The documents refer to additional policies and procedures which have not been produced. For example document D0007 directs that branch employees must be trained on the proper insurance sales policies and procedures found in the following sources:

* Directive and Information System, Section 6;

* Insurance Product Guide (IPG);

* Lending Manual, Section 5;

* Business Development Manual, Section 6;

* District Manager Desk manual, Task #46;

* Branch Manager Desk manual, Task #13;

* Customer Service Representative Desk Manual, task#9,#10and #13.

* State Operating procedure 6000; and

* Miscellaneous Insurance brochures and publications available from Insurance operations.

A copy of document D0007 is attached as Exhibit “L”. None of these other documents were produced. A half-hearted document production is not acceptable. Accordingly, Pursuant to Fed.R.Civ.Pro. 37(a)(3), Defendant’s responses to Document Request No. 9 must be stricken and Defendant shall produce and identify all documents responsive to Plaintiff’s Document Production. Regarding Document Requests 1–8, 10–18, during an extended telephone conversation between counsel for Plaintiff and counsel for Defendant, Defendant’s counsel agreed to produce documents responsive to Document Requests Nos. 1–18. See, Flitter November 7, 1997 letter and Bryce reply letter of November 21, 1997. As of today’s date, the documents have yet to be produced. These requests address Plaintiff’s specific claims and Defendant’s financial relationship with the various insurance companies. Without the requested documents Plaintiff will be prejudiced as it will be impossible to verify Plaintiff’s claims. Accordingly, Defendant should be Ordered to produce said documents. See Fed.R.Civ.Pro. 37(a).

Document Request No. 19 seeks:

All documents [Defendant] intend[s] to introduce into evidence.

Defendant objected, claiming:

See General Objections. American General further objects to this request as premature.

Discovery requests seeking the identity of witnesses and other tangible evidence may be sought, even if a case is in its infancy. Fischer and Porter Co. v. Tolson, 143 F.R.D. 93 (E.D. Pa. 1992). Defendant should produce the documents it may introduce into evidence. Defendant’s objection should be stricken.

Document Request No. 20 seeks:

All documents referred to in preparing answers to the foregoing interrogatories.

Defendant objected:

See General objections and Objections to interrogatories.

All non-privileged documents responsive to these Requests should be produced. If Defendant is referring to documents in order to answer its Interrogatories, then all non- privileged original documents should be produced. Those documents are just as relevant as the interrogatories. It would seem irrational for Defendant to agree to answer Interrogatories Nos. 4, 5, 15, 17–28, 42–43, 55–62 but object to a document request which seeks the documents which form the basis for the interrogatory answers. The original documents are just as relevant as the interrogatory answers. Accordingly, Plaintiff’s response must be stricken.

D. ATTORNEYS FEES

Plaintiff is entitled to reasonable counsel fees to pay its costs of preparing this motion to compel. Fed. R. Civ. P. 37(a)(4)(A) provides the relevant rule:

If the motion [to compel] is granted, . . . . the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that the motion was filed without the movant first making a good faith effort to obtain the disclosure or discovery without the court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.

Plaintiff’s counsel has demonstrated that he first attempted to resolve the problem without court involvement and Defendant has no “substantial justification” for refusing to produce the requested material. As to all the objections which have been withdrawn, Plaintiff has still not received the answers or documents. Even the questions which Defendant agreed to answer have not been answered, in nearly five months. As to the other discovery requests, most of any answers are general or generic, or ill founded. Fed. R. Civ. P. 37(a)(4)(A) states that the court “shall” award attorneys fees under such circumstances. Therefore, the court should order Defendant to pay Plaintiff’s counsel’s fees for filing this motion.

IV. CONCLUSION

All discovery sought by Plaintiff relates to facts which are relevant and material to the case. Defendant’s recalcitrance cannot be condoned. Plaintiff’s Motion to Compel under Federal Rules of Civil Procedure 37 should be granted.

DATE: ______CARY L. FLITTER, ESQUIRE Lundy, Flitter, Beldecos & Berger, P.C. 450 N. Narberth Avenue Narberth, PA 19072

MICHAEL D. DONOVAN, ESQUIRE Donovan Miller, LLC 1608 Walnut Street, Suite 1400 Philadelphia, PA 19103

Attorneys for Plaintiff