IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

JUAN CRUZ, \ )
)
Plaintiff, ) CASE NO. ST-15-CV-491
v. )
) ACTION FOR DAMAGES
VIRGIN ISLANDS WATER AND )
POWER AUTHORITY, HUGO HODGE, )
JR., AND JULIO RHYMER, )
)
Defendants. ) JURY TRIAL DEMANDED
)

Cite as 

MEMORANDUM OPINION
(Motion to Compel Rhymer)

{1 THIS MATTER is before the Court on two motions to compel filed by the
Plaintiff, Juan Cruz (“Cruz”), pursuant Virgin Islands Rule of Civil Procedure 37 (a)(1)
against Defendant Julio Rhymer (“Rhymer”),! to supplement Defendant’s responses
to Cruz’s written discovery requests.2 For the reasons set forth herein, Cruz’s Motions
to Compel Defendant Rhymer will be granted.

LEGAL STANDARD

A. Discoverable Information

' Cruz's first Motion to Compel Julio Rhymer to Supplement Written Discovery Responses was filed
September 5, 2018. Cruz filed a second motion to compel on December 16, 2019. Rhymer has not
responded to either motion.

? Motions to compel the other defendants are also pending and will be addressed under separate
opinions.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)
Page 2 of 25

{2 “In general, Virgin Islands Rules of Civil Procedure 26 and 33 govern the scope
of a party's duty to disclose information during discovery and to answer
interrogatories.” Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P., 

, *1 (V.I. Super. Ct. June 2, 2017). Under V.I. R. Civ. P. 26(b)(1) “[plarties
may obtain discovery regarding any nonprivileged matter that is relevant to any
party's claim or defense. Information within this scope of discovery need not be
admissible in evidence to be discoverable.” Donastorg v. Walker, No. ST-17-CV-393,

, at *2 (V.I. Super. Ct. July 11, 2019). “(T]he singular factor for
determining whether information is discoverable is its relevance.” Donastorg, 

, at *2 (quoting Finn v. Adams, No. ST-16-CV-752, 

 at
*3, (V.I. Super. Ct. Nov. 28, 2017)). The Court determines whether information is
relevant under the standard provided by Virgin Islands Rule of Evidence 401. See,
Donastorg, 

, at *2. Under this rule, relevant information is that
which has the “tendency to make the existence of any fact that is of consequence to
the determination of the action more or less probable than it would be without [it].”
Donastorg, 

, at *2; see also Thomas v. People of the V.L, 60 V.1. 183,

196 (V.I. 2013). This is a low threshold and as such is “very easy to satisfy.”

3In Thomas, the V.I. Supreme Court cites to Federal Rule of Evidence 401, rather than the local
rule. Nevertheless, this analysis is highly persuasive because Federal Rule of Evidence 401 and
Virgin Islands Rule of Evidence 401 are identical.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)
Page 3 of 25

Donastorg, 

, at *2; see also Ostalaza v. People of the V.L, 

 (V.I. 2013) (discussing the relevancy standard).

B. Interrogatories

(3 Under V.I. R. Civ. P. 33(a)(1)-(2), “a party may serve on any other party no
more than 25 written interrogatories,” which “may relate to any matter that may be
inquired into under Rule 26(b).” A party served with interrogatories must provide an
answer or objection to each interrogatory within thirty days after being served, V.I.
R. Civ. P. 33(b)(1)-(4), unless that party “represents in good faith in its response that
it cannot — in the exercise of reasonable efforts — prepare an answer from
information in its possession or reasonably available to the party,” V.I. R. Civ. P.
33(d). “The grounds for objecting to an interrogatory must be stated with specificity.”
V.I. R. Civ. P. 33(b)(4). An objection that is untimely or without grounds “is waived,
unless the court, for good cause, excuses this failure.” In re Adoption of V.I. Rules of
Civil Procedure, No. 2017-001, 2017 WL1293844, at *50 (VI. Apr. 3, 2017) (quoting
V.I. R. Civ. P. 33(b){4)). All interrogatories without an objection “must be answered
separately and fully in writing under oath.” V.I. R. Civ. P. 33(b)(3).

{4 Ifa party served fails to make all necessary disclosures as required by V.I. R.
Civ. P. 33, the party requesting disclosure may move to compel discovery under to
V.I. R. Civ. P. 37(a)(1). The motion must satisfy certain requirements. Specifically,
the “motion must include a certification that the movant has in good faith conferred

or attempted to confer with the person or party failing to make disclosure or discovery
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cru2’s Motion to Compel Rhymer)
Page 4 of 25

in an effort to obtain it without court action.” V.L R. Civ. P. 37(a)(1); see also Victor-
Perez v. Diamondrock Frenchman’s Owner, Inc., No. ST-15-CV-387, 

,
at *2 (V.I. Super. Ct. Apr. 5, 2018). The certification must demonstrate in writing
that, prior to filing, counsel for the parties attempted to meet and “confer in a good
faith effort to eliminate the necessity for the motion or to eliminate as many of the
disputes as possible.” V.I. R. Civ. P. 37-1(a); see also Olea v. Virgin Islands Telephone
Corp., No. ST-16-CV-386, 

 at *1,*3 (V.I. Super. Terr. May 31 2018)
(discussing this standard); Victor-Perez, 

 at *92.4 “(I]t is the
responsibility of the requesting party to provide a letter to opposing counsel detailing
the discovery issues in dispute, to make any necessary arrangements for a conference,
and to meet in person, if practicable.” Finn, 

 at *3 (internal citations
omitted). Where a face-to-face meeting is impracticable, “a conference may take place

telephonically.” Victor-Perez, 

 at *2.

‘ Neither VI. R. Civ. P. 37 nor 37-1 defines the language a moving party should use in a certification,
however V.I. R. Civ. P. 84 provides an example. Specifically, this rule states that “[w]henever, under
[the V.I. Rules of Civil Procedure] or any rule, regulation, order, or requirement adopted by, made
pursuant to, or incorporated in these rules, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn ... certificate ... in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: ....
‘I declare ... under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature.)’” V.I. R. Civ. P. 84; see also Victor-Perez, 

 at *2.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)
Page 5 of 25

FACTS

(5 Plaintiff Juan Cruz’s suit against Rhymer alleges, inter alia, that while
Rhymer was Chief Financial Officer at WAPA, he exhibited a hostile and negative
attitude towards Cruz, that Cruz was wrongly blamed for the errors of other
employees and the delay of WAPA’s external audit, and that Cruz was falsely
charged—at the instigation of Rhymer and Hodge—with insubordination, poor and
careless work, falsification of records, material misrepresentation of information, and
impeding the flow of work. The suit also alleges that the Defendants breached their
duty of good faith and fair dealing, that they unlawfully retaliated against Cruz, that
Hodge and Rhymer tortiously interfered with Cruz's employment with WAPA by
making false allegations against him and causing him to be improperly terminated,
and that Cruz’s termination is a violation of the whistleblower statute.

{6 Rhymer then filed a counterclaim against Cruz on October 29, 2015 for
defamation and intentional infliction of emotional distress, alleging that Cruz’s
allegations were made without good faith or factual support, and were injurious to
Rhymer’s business and reputation, which caused him to suffer physical and emotional
distress.

{7 Cruz served Rhymer with his first set of interrogatories on December 27, 2016.
Rhymer did not respond within thirty days as required under V.I. R. Civ. P. 33(). On
January 25, 2017, Cruz wrote to Rhymer to remind him that his discovery responses

were due. On February 23, 2018, the Parties reached an agreement wherein Rhymer
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)
Page 6 of 25

agreed to provide answers to all outstanding discovery requests within fifteen days.
However, Rhymer did not respond by the agreed deadline. On April 3, 2018, Cruz
filed a motion to compel Rhymer to answer Cruz’s written discovery requests. On May
3, 2018, this Court granted Cruz’s motion, ordered Rhymer to respond to Cruz’s
written requests within 10 days, and stated that Rhymer had waived any and all
objections for his failure to comply with V.I. R. Civ. P. 33(b). On May 10, 2018, the
Defendants submitted a motion requesting an extension of time to respond to Cruz’s
discovery requests, to which Cruz did not object. On June 6, 2018, the Court granted
Defendants’ motion and ordered Defendants to respond to Cruz’s discovery requests
by July 1, 2018.5 On May 30, 2018, Rhymer tendered his responses to Cruz’s first set

of interrogatories.

ANALYSIS
A. Cruz Satisfied the Meet and Confer Requirement
{8 OnJune 15, 2018, Cruz sent a letter to opposing counsel stating that Rhymer’s
responses to his written discovery requests were insufficient.6 The letter requested
Rhymer to supplement his responses or provide dates of availability to meet and

confer. After Rhymer failed to respond to Cruz’s requests or provide dates of his

* The Court notes that the introductory paragraph of the June 6, 2018 Order only references Hugo
Hodge’s renewed motion. However, elsewhere the Order references Defendants’ Motion and said
Defendants (plural) shall respond by July 1, 2018. Therefore, the Court will grant Rhymer the benefit
of the June 6, 2018 Order,

§ Pl.’s Mot. Compel. Rhymer Ex. 1, 1. Cruz submits that “[w]ritten discovery was propounded in this
matter since December 20, 2016, and, to date, discovery has not been concluded due to Defendant’s
failure to answer/supplement written discovery in a timely manner.” Pl.’s Mot. Compel Rhymer, 1.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)
Page 7 of 25

availability to meet and confer, Cruz filed the instant Motion to Compel. The Motion
is unopposed and includes a certification that provides as follows:

On June 15, 2018, Defendant Rhymer was informed that his discovery

responses were insufficient. Ex. 1. Multiple requests for

supplementation and/or dates to meet and confer were made. Ex. 2. To

date Defendant is refusing to meet and confer and has not supplemented

as requested.
To date, the file contains no indication that Rhymer supplemented his responses to
Cruz’s written discovery responses. On December 16, 2019, Cruz filed a second motion
to compel Rhymer to supplement his responses to Cruz’s written discovery requests.
{92 Under V.I. R. Civ. P. 33(b)(2), Rhymer is required to provide “answers and any
objections within 30 days of being served with interrogatories.” Where Rhymer’s
answers are insufficient, Cruz must request Rhymer to supplement his responses and
provide dates to meet and confer. V.I. R. Civ. P. 37(a)(1). The Court finds that Cruz
satisfied these requirements.? Cruz attempted to confer with Rhymer in good faith to
obtain discovery without court action, and the Motion certifies that such efforts were

made in accordance with V.I. R. Civ. P. 37(a)(1). For these reasons, the Court finds

that Cruz has satisfied the meet and confer requirement.

B. Cruz’s Motion to Compel Rhymer Will Be Granted

{10 “For discovery to progress effectively, each party must provide truthful,

complete, candid, and explicit responses to each individual discovery request.”

Pl.’s Mot. Compel Rhymer, Ex. | & 2.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)
Page 8 of 25

Donastorg, 

, at *3. Regarding interrogatories, the responding party
must answer each interrogatory “separately and fully in writing,” unless the
responding party demonstrates that he cannot do so “with the exercise of reasonable
efforts.” V.I. R. Civ. P. 33 advisory committee’s note to subpart (b). Only when the
responding party has made this representation can he state that the answer to an
interrogatory may be determined by examining other documents. See V.I. R. Civ. P.
33 advisory committee’s note to subpart (d). Otherwise answering an interrogatory
by merely “referring to pleadings or other discovery is insufficient.” 

(1964) (collecting cases).8 When an attorney or party signs a discovery response, he
“certifies that to the best of [his] knowledge, information, and belief formed after a
reasonable inquiry, each disclosure is complete and correct, and that each discovery
response is warranted by law, not interposed for any improper purpose, and neither
is unreasonable nor unduly burdensome.” Donastorg, 

, at *3
(internal quotations omitted) (citing V.I. R. Civ. P. 26(g)(1)). “Gamesmanship to evade
answering as required is not allowed.” 

 (quoting Wagner v. St. Paul Fire & Marine
Ins. Co., 

 (N.D.W. Va.2006)).

4/11 Cruz moves the Court to compel Rhymer to supplement his responses to

Interrogatory Nos. 1, 3-7, 12-14, 16, 18, and 23-24, In accordance with V.L. law, the

8 “An answer to an interrogatory must be responsive to the question; it should be complete in itself
and should not refer to the pleadings, or to depositions or other documents, or to other
interrogatories, at least where such references make it impossible to determine whether an adequate
answer has been given without an elaborate comparison of answers.” 

 (1964)
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)
Page 9 of 25

Court will evaluate the sufficiency of Rhymer’s responses and any requests to

supplement responses against a Rule 401 relevancy standard.

a. Rhymer Will Supplement Interrogatory No. 1
12 Cruz argues that Rhymer’s response to Interrogatory No. 1 is incomplete
because Rhymer failed to provide the names and job titles of his direct reports and to
answer the length of time he was acting Executive Director at WAPA. Interrogatory
No. 1 states:

Please describe in detail the nature of relationship with Co-Defendant
Virgin Islands Water and Power Authority (hereinafter “WAPA”),
including but not limited to, the title of each position you have held with
WAPA, the period of time during which you held each position, your
responsibilities in each position, identify the departments you oversaw,
the names and job titles of the individual(s) who were your direct reports
in each, and the individuals to whom you reported in each position you

held.
Rhymer’s response to Interrogatory No. 1 states:

I joined WAPA in July 2012 as the chief financial officer and held
that position until January 2017 when I was appointed Acting Executive
Director. In the position of chief financial officer I reported to Hugo
Hodge Jr. and the Board of WAPA and oversaw the following divisions:
accounting, pricing and rates, customer service, meter reading,
collections, key accounts, and purchasing. I do not understand what is
meant by direct reports. My responsibility as the CFO was to manage
all financial aspects of the authority.

The Court finds that the information requested in Interrogatory No. 1 is relevant to
Cruz’s claim, that the information sought is discoverable, and the response is

incomplete. Therefore, Cruz is entitled to a complete response to Interrogatory No. 1,
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion te Compel Rhymer)

Page 10 of 25

including supplemental discovery responses related to discoverable information.
Accordingly, the Court will order Rhymer to provide the names and job titles of the
persons who reported directly to him and to answer the length of time he was acting
Executive Director at WAPA.
b. Rhymer Will Supplement Interrogatory No. 4
{13 Cruz argues that Rhymer’s response to Interrogatory No. 4 is incomplete
because Rhymer failed to identify and describe communications between him and all
individuals regarding Cruz’s performance of his job duties. Interrogatory No. 4 states:
Please identify by date and describe in detail any communications
between you or anyone acting on your behalf and any other individual
regarding Plaintiff's performance of his job duties or failure to perform
his job duties as Accounting Manager, identify the parties to each
communication, and identify all documents concerning the same.
Rhymer’s response to Interrogatory No. 4 states as follows: “I am unable to identify
by date any of the communications concerning the events described in answer to
interrogatory #3. See response to interrogatory No. 3 and personnel file previously
produced.” According to Cruz, Rhymer provided the following response to
Interrogatory No. 3:
The exact dates for the incidents described, I cannot remember but am
able to relate details of these incidents. The first time I expressed
discontentment with Mr. Cruz [sic] actions arose out of his interference
with a planned visit with external auditors from Ernst & Young
concerning the 2011 financial audit. After I, as the leader of the financial
team, had a conference call with the auditors and directed that they
appear at our offices the following day, Mr. Cruz told the auditors not to

come to the meeting. I then directed Maurice Sebastian to have Carl
Isaac (Mr. Cruz’s immediate supervisor) to conduct a first step hearing
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page ll of 25

pursuant to Section 10.2 of the Authority's Personnel Policies and
Procedures manual. Later a second step hearing was conducted wherein
I sat as a hearing officer. Later Mr. Cruz was appropriately disciplined
by the executive director.

The second incident involving the Plaintiff came in August 2014 as a
result of an investigation into the delaying payment for 93 days of two
invoices in violation of the Authority’s rules. From an investigation into
Mr. Cruz failed [sic] to conduct a proper investigation into the actions of
an employee under his supervision. An investigation into the actions of
Mr. Cruz revealed his failure to properly investigate the matter
displayed poor accountability which was unacceptable for a manger with
his level of responsibility. The delay in payment resulted in great
expense to the Authority. Mr. Cruz was disciplined for his actions.

The third and final issue in my working with Mr. Cruz came as a result

of falsification of records and misrepresentation of material information.

Following an investigation which commenced in September 2014 it was

concluded that Mr. Cruz wrote to the head of an agency without

authorization or notice to his supervisor in an effort to offset gross

receipts taxes erroneously withheld from one company to have the funds

applied to nine other vendors. He was again recommended for discipline

to the executive director and subsequently terminated.
414 The Court finds that the information requested in Interrogatory No. 4 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 4, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. Accordingly,
the Court will order Rhymer to supplement his response to Interrogatory No. 4 and

provide the names and details of all conversations that were had regarding Cruz’s

work performance.
Juan Cruz v. WAPA et al

Case No, ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz's Motion to Compel Rhymer)

Page 12 of 25

c. Rhymer Will Supplement Interrogatory No. 5
415 Cruz argues that Rhymer’s response to Interrogatory No. 5 is incomplete and
effectively unanswered. Interrogatory No. 5 states:

Please state whether you requested investigations of Plaintiff or
directed any individuals to conduct disciplinary hearings regarding/with
Plaintiff while he was the Accounting Manager for WAPA, describe all
reasons why you requested these investigations or hearings, identify the
names and job title of the individuals who instructed to conduct the
investigations and/or disciplinary hearings, describe in detail any
communications between you and the individuals prior to the
commencement of their investigations and/or disciplinary hearings
regarding the alleged incidents and/or accusations against Plaintiff,
identify by date and describe any subsequent communications you had
regarding the findings of their investigations and/or disciplinary
hearings, and identify all documents concerning the same.

Rhymer’s response to Interrogatory No. 5 is as follows: “This interrogatory has been
answered as part of interrogatory answer #8. See response to interrogatory no. 3 and
personnel file previously produced.” In his Motion, Cruz states that Rhymer’s
response to Interrogatory No. 3 stated:

The exact dates for the incidents described, I cannot remember but am
able to relate details of these incidents. The first time I expressed
discontentment with Mr. Cruz [sic] actions arose out of his interference
with a planned visit with external auditors from Ernst & Young
concerning the 2011 financial audit. After I, as the leader of the financial
team, had a conference call with the auditors and directed that they
appear at our offices the following day, Mr. Cruz told the auditors not to
come to the meeting. I then directed Maurice Sebastian to have Carl
Isaac (Mr. Cruz’s immediate supervisor) to conduct a first step hearing
pursuant to Section 10.2 of the Authority's Personnel Policies and
Procedures manual. Later a second step hearing was conducted wherein
I sat as a hearing officer. Later Mr. Cruz was appropriately disciplined
by the executive director.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 13 of 25

The second incident involving the Plaintiff came in August 2014 as a
result of an investigation into the delaying payment for 93 days of two
invoices in violation of the Authority’s rules. From an investigation into
Mr. Cruz failed [sic] to conduct a proper investigation into the actions of
an employee under his supervision. An investigation into the actions of
Mr. Cruz revealed his failure to properly investigate the matter
displayed poor accountability which was unacceptable for a manger with
his level of responsibility. The delay in payment resulted in great
expense to the Authority. Mr. Cruz was disciplined for his actions.

The third and final issue in my working with Mr. Cruz came as a result

of falsification of records and misrepresentation of material information.

Following an investigation which commenced in September, 2014 it was

concluded that Mr. Cruz wrote to the head of an agency without

authorization or notice to his supervisor in an effort to offset gross

receipts taxes erroneously withheld from one company to have the funds

applied to nine other vendors. He was again recommended for discipline

to the executive director and subsequently terminated.
716 The Court finds that the information requested in Interrogatory No. 5 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 5, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. Accordingly,
the Court will order Rhymer to supplement his response to Interrogatory No. 5.
Rhymer will state whether he requested investigations of Cruz or directed any
individuals to conduct disciplinary hearings regarding/with Cruz while he was the
Accounting Manager for WAPA; identify the names and job title of the individuals

who he instructed to conduct the investigations and/or disciplinary hearings of Cruz;

and describe in detail any communications between him and the individuals prior to
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 14 of 25

the investigations and/or disciplinary hearings regarding the alleged incidents and/or

accusations against Cruz.

d. Rhymer Will Supplement Interrogatory No. 6

417 Cruz argues that Rhymer’s response to Interrogatory No. 6 is incomplete and
because Rhymer did not detail his involvement in the decision to take disciphnary
action or terminate Cruz, while working in his capacity as Chief Financial Officer.
Interrogatory No. 6 states: “Please describe in detail your involvement in any decision
to take disciplinary action against Plaintiff or to terminate his employment with
WAPA, set forth what your posture was in regard to each charge brought against
Plaintiff and describe all the reasons for the same.” Rhymer’s response to
Interrogatory No. 5 states is follows: “Any recommendation I made in my capacity as
Chief Financia] Officer was a result of poor and careless work as documented in Mr.
Cruz’s personnel file and is further explained in answer to your previous
interrogatories,”

418 The Court finds that the information requested in Interrogatory No. 6 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 6, including
supplemental discovery responses related to discoverable information. After

reviewing Rhymer's response, the Court finds that it was incomplete. Accordingly,
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 15 of 25

the Court will order Rhymer to supplement his response to Interrogatory No. 6 and

detail his involvement in the decision to take disciplinary action or terminate Cruz.
e. Rhymer Will Supplement Interrogatory No. 7

{19 Cruz argues that Rhymer’s response to Interrogatory No. 7 is incomplete

because Rhymer did not identify the employee, who caused delay, by name or disclose

whether he was ever disciplined. Interrogatory No. 7 states:

Please identify by date and describe all investigations you or anyone
acting on your behalf conducted into the delayed payment of Trafigura
Invoice No. 103935 and 104430, including, but not limited to, any
investigations within the Budget and Cash Department to determine
who had placed a hold on the invoices, why payment of the invoices had
been placed on hold and had not been processed prior to the due dates,
describe in detail the results of any investigations you conducted,
including all reasons for the delayed payment of the invoices, identify
all employees who were disciplined at the conclusion of the
investigations, identify what violations these individuals were charged
with, describe the reasons for same, and identify all documents
concerning the same.

Rhymer’s response to Interrogatory No. 7 states:

I cannot recall the date of any investigation concerning payment of the
Trafigura invoice and the failures Mr. Cruz. The personnel file of Mr.
Cruz will contain documents concerning this issue. This file has already
been produced. The incident involving the Plaintiff came in August 2014
as a result of an investigation into the delaying payment for 93 days of
two invoices in violation of the Authority’s rules. From an investigation
it was concluded that Mr. Cruz failed to conduct a proper investigation
into the actions of an employee under his supervision. An investigation
into the actions of Mr. Cruz revealed that his failure to properly
investigate the matter displayed poor accountability which was
unacceptable for a manager with his level of responsibility. The delay in
payment resulted in great expense to the Authority and the near
exhaustion of fuel reserves. Mr. Cruz was disciplined for his actions.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 16 of 25

{20 The Court finds that the information requested in Interrogatory No. 7 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 7, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. Accordingly,
the Court will order Rhymer to supplement his response to Interrogatory No. 7 and
state whether the employee who caused the delay in payment of Trafigura Invoice
No. 103935 and 104430 was ever disciplined and identify the employee by name.
f. Rhymer Will Supplement Interrogatory No. 12

{21 Cruz argues that Rhymer’s response to Interrogatory No. 12 is incomplete
because Rhymer did not answer why Cruz was charged with the certain offenses, nor
did he provide an account of any exchange with Cruz regarding them. Interrogatory
No. 12 states:

Please describe in detail all the reasons why Plaintiff was charged with

insubordination, poor, and careless work, and impeding the flow of work

following the second step hearing on September 25, 2012, concerning the

2011 financial audit, include in your response a verbatim account of any

exchanges you had with Plaintiff, the actions or inactions of Plaintiff

which constituted subordination, a detailed description of what actions

or inactions of Plaintiff constituted poor and careless work and impeded

the flow, and identify all persons with knowledge and all documents

concerning the same.

Rhymer’s response to Interrogatory No. 12 is as follows:

“All matters concerning the 2012 insubordination are properly
documented in the personnel file previously provided, and previous
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz's Motion to Compel Rhymer)

Page 17 of 25

answers to these interrogatories should be reviewed as they answer this

question in detail.”
{23 The Court finds that the information requested in Interrogatory No. 12 is
relevant to Cruz's claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 12, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. Responding by
merely referring to other documents is insufficient without first making the
representation that he could not fully respond with the exercise of reasonable efforts.
Accordingly, the Court will order Rhymer to supplement his response to Interrogatory
No. 12 by stating all the reasons Cruz was charged’ with
any offense after the second step hearing, and a detailed account of Cruz’s actions
and inactions that constituted insubordination, and identify all persons with
knowledge of same.

g. Rhymer Will Supplement Interrogatory No. 13

924 Cruz argues that Rhymer’s response to Interrogatory No. 13 is incomplete
because Rhymer did not identify and describe all policies and procedures related to
ensuring the timely payment of invoices. Interrogatory No. 138 states:

Please state whether you were aware of any policies, procedures or

practices at WAPA in or around 2014 concerning the steps to be taken

to ensure that invoices were paid in a timely manner when posted in the

accounts payable system and the corresponding physical invoices could
not be located, describe what these policies, procedures or practices
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 18 of 25

were, identify by date and substance any changes made to these policies
and procedures, state the reason for these changes, and identify all
documents concerning the same.

Rhymer’s response to Interrogatory No. 13 is as follows:

The procedures and practices are clear and straightforward. The
invoices that are to be paid must be forwarded to the appropriate
departments for payment. It is unacceptable what invoice to remain in
accounts payable for 93 days after being posted (sic). This is accounting
101.

{25 The Court finds that the information requested in Interrogatory No. 13 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 13, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. Rhymer’s states
that the relevant “procedures and practices are clear and straightforward,” which
suggests that there are multiple of each. However, Rhymer’s response seems to
describe only a single requirement. In addition, the response does not address the
portion of the interrogatory that asked whether any changes had been made to the
policies and procedures. Accordingly, the Court will order Rhymer to supplement his
response to Interrogatory No. 13 by identifying and describing all policies and

procedures related to ensuring the timely payment of invoices and whether there had

been any changes and the reason therefor.
Juan Cruz v. WAPA et al

Case No, ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compe] Rhymer)

Page 19 of 25

h. Rhymer Will Supplement Interrogatory No. 14
{26 Cruz argues that Rhymer’s response to Interrogatory No. 14 is incomplete
because Rhymer did not identify and describe all policies and procedures related to
ensuring the timely payment of invoices. Interrogatory No. 14 provides as follows:
Please state whether you believe that Plaintiff should have

obtained authorization prior to contacting any entity to reverse

accounting errors that resulted in overpayments to the entity, and if so,

identify the name and job title of the individual from whom you believe

Plaintiff should have obtained authorization, and identify all documents

supporting the same.
Rhymer’s response to Interrogatory No. 14 is as follows:

Gross Receipts are paid for an entity. When the Plaintiff realized

there was an error, he should have notified the head of this department

to secure authorization to rectify the problem. The matter should have

been handled at the highest levels; executive director or CFO.
{27 The Court finds that the information requested in Interrogatory No. 14 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 14, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. Rhymer does
not provide the name and job title of the head of Cruz’s department from whom
authorization was needed, nor does he identify the documents that support same.
From Rhymer’s response, the heads of the department were the executive director or

CFO, both of which must be named in Rhymer’s response, but it is also not clear if

permission was needed from the executive director or CFO, or the head of Cruz’s
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 20 of 25

department. Accordingly, the Court will order Rhymer to supplement his response to
Interrogatory No. 14 by providing the name and job title of the head of Cruz’s
department from whom authorization was needed, and he must identify the
documents that support same.
i, Rhymer Will Supplement Interrogatory No. 16

428 Cruz argues that Rhymer’s response to Interrogatory No. 16° is incomplete
because Rhymer failed to answer how “the offsetting of the gross receipt taxes for
nine vendors against the amount erroneously transmitted to the Virgin Islands
Bureau of Internal Revenue as gross receipt taxes for VI Paving, Inc., constituted
falsification of the records” or misrepresentation.

Interrogatory No. 16 provides as follows:

Please describe in detail how the offsetting of the gross receipt taxes

for nine vendors against the amount erroneously transmitted to the

Virgin Islands Bureau of Internal Revenue as gross receipt taxes for VI

Paving, Inc., constituted falsification of the records or

misrepresentation of material information.
Rhymer’s response to Interrogatory No. 16 is as follows:

The funds held by WAPA for payment of gross receipt taxes for vendors

are Trust Funds. WAPA acts as a fiduciary taking control of funds the

vendors would owe for gross receipts and turns them over to the Virgin

Islands Bureau of Internal Revenue. In this scenario the funds were

overpaid on behalf of V.I. Paving. Using the monies to satisfy the

obligations of other vendors would constitute co-mingling of trust
funds.

® Cruz's request to supplement Interrogatory No. 16 appears only in his second motion to compel
filed December 16, 2019. It did not appear in his first motion to compel.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 21 of 25

{29 The Court finds that the information requested in Interrogatory No. 16 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 16, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. While Rhymer
states that the use of “the monies to satisfy the obligations of other vendors would
constitute co-mingling of trust funds,” the Court finds that Rhymer fails to explain
how “the offsetting of gross receipt taxes for nine vendors against the amount
erroneously transmitted to the Virgin Islands Bureau of Internal Revenue as gross
receipt taxes for VI Paving, Inc,” constitutes falsification of records or
misrepresentation of material information. Accordingly, the Court will order Rhymer
to supplement his response to Interrogatory No. 16 by explicitly stating how Cruz’s
actions constituted falsification of documents or misrepresentation of material

information.

j. Rhymer Will Supplement Interrogatory No. 18
{30 Cruz argues that Rhymer’s response to Interrogatory No. 18 is incomplete
because Rhymer did not provide a separate and complete answer to the interrogatory.
Interrogatory No. 18 provides as follows:
Please identify by name and job title all persons you questioned
and/or investigated in connection with the $41,804.54 which was

erroneously transmitted to the Virgin Islands Bureau of Internal
Revenue and the subsequent attempts to reverse the error, describe in
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz's Motion to Compel Rhymer)

Page 22 of 25

detail the substance of each discussion or investigation and the results
of each investigation, and identify all documents concerning the same.

Rhymer’s response to Interrogatory No. 18 is as follows:

See Interrogatory No.3, the personnel file of Juan Cruz and my
answer to the previous interrogatory.

{31 The Court finds that the information requested in Interrogatory No. 18 is
relevant to Cruz’s claim and therefore also finds that the information is discoverable.
As such, Cruz is entitled to a complete response to Interrogatory No. 18, including
supplemental discovery responses related to discoverable information. After
reviewing Rhymer’s response, the Court finds that it was incomplete. The
interrogating party is entitled to a separate and complete response to each
interrogatory, unless the responding party is unable to do so with reasonable efforts.
Rhymer’s response, which merely refers to a previous response and another document
is insufficient without first making the representation that he could not fully respond
with the exercise of reasonable efforts. Accordingly, the Court will order Rhymer to
supplement his response to Interrogatory No. 18 providing the names and job titles
of each person he questioned or investigated about the $41,804.54 or the attempts to
reverse that payment.
k. Rhymer Will Supplement Interrogatory No. 24

32 Cruz argues that Rhymer’s response to Interrogatory No. 24 is incomplete
because Cruz is entitled to the identities of the “persons not employed by WAPA,”

that Rhymer spoke of in his response. Interrogatory No. 24 provides as follows:
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 23 of 25

In paragraph 7 of your Counter-claim, you allege that the
Plaintiff/Counter-Defendant defamed you by “publishing to third person
claims that Counter-Claimant took action to benefit contractors and
vendors without knowledge and approval of the WAPA Board and to
grant by those actions contracts and increased costs to WAPA.” Please
identify the third person to whom you claim Plaintiff/Counter-
Defendant made these claims, describe with specificity what actions
Plaintiff/Counter-Defendant alleged that you took to benefit contractors
and vendors, identify the contractors and vendors whom Plaintiff
alleged that you took actions to benefit at increased costs to WAPA,
describe how you learned of these allegations, if you deny any of these
allegations give a detailed reason why, including a description of all
relevant facts, and identify all persons with knowledge and all
documents concerning the same.

Rhymer responded to Interrogatory No. 24 as follows:
By plaintiff's own admission the Plaintiff sent letters to the board and
the audit division and spoke to persons not employed by WAPA with
allegations of kickback requests, misuse of government funds and
breach of public trust. The precise reasons for the counterclaim is that
Mr. Cruz has alleged false and defamatory claims and statements and
publish these members of the public through his writing and speech.
(sic) There are no vendors from whom kickbacks were request.(sic)
{33 The Court finds that the information requested in Interrogatory No. 24 is
relevant to Rhymer’s counterclaim against Cruz and therefore also finds that the
information is discoverable. As such, Cruz is entitled to a complete response to
Interrogatory No. 24, including supplemental discovery responses related to
discoverable information. After reviewing Rhymer’s response, the Court finds that it
was incomplete. Rhymer has a duty to supplement his response to identify the

persons who Rhymer claims Cruz sent letters to and who in the public they were

conveyed to. Accordingly, the Court will order Rhymer to supplement his response to
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 24 of 25

Interrogatory No. 24 by providing the names of “persons not employed by WAPA” to
whom, Rhymer alleges, Cruz sent letters.
l. Rhymer Will Answer Demand No. 23
34 Cruz argues that Rhymer failed to respond to Demand No. 23 and Rhymer has
not provided argument to the contrary. As such, the Court is compelled to find that
Rhymer failed to respond to Demand No. 23 and will order Rhymer to do so. Since
Rhymer did not provide a response or objection to Demand No. 23 within thirty days,
any future objections are waived.
Demand No. 23 provides as follows:
Please produce copies of all emails, text messages, notes,
correspondence and other writings or communications between you and
any individual concerning the contract given to Bryan Electrical to do

electrical work concerning the relocating of WAPA’s business office to
Four Winds Mall.
Juan Cruz v. WAPA et al

Case No. ST-15-CV-491 Cite as 

Memorandum Opinion (Cruz’s Motion to Compel Rhymer)

Page 25 of 25

CONCLUSION
435 Cruz has shown that Defendant Rhymer has a duty to supplement his
interrogatory responses and certain document requests. The two motions to compel

will be granted. An Order consistent herewith will be entered immediately.

DATED: January / 4 2020 fete Tyce

Kathleen Mackay
Judge of the Superior Court
of the Virgin Islands

ATTEST:

Juan Cruz v. WAPA et al

Case No. ST-15-CV-491

Order (Motion to Compel Rhymer)
Page 4 of 4

ORDERED that Defendant file the aforesaid responses and supplements
within thirty (30) days of entry of this Order; and it is further
ORDERED that copies of this Order and the Memorandum Opinion shall be

directed to counsel of record.

DATED: January LY , 2020 LaF Ci cj ole,

Judge of the Superier Court
of the Virgin tslands