SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX
PATRICK KRALIK,
PLAINTIFF,
v. SX-19-CV-061
OSAGE STX HOLDINGS, LLC, Cited as: 2020 VI SUPER 069
DEFENDANT.
_I

Appearances:

Lee J. Rohn, Esq.
For the Plaintiff

Eric A. Hiller, Esq.
For the Defendant

MEMORANDUM OPINION and ORDER

WILLOCKS, Presiding Judge

THIS MATTER is before the Court on the Defendant’s Motion to Compel Plaintiff to Execute
Discovery Authorizations (hereinafter “Motion”) filed January 13, 2020. An Opposition and Reply
were both filed on January 16, 2020. The Plaintiff filed an additional Motion to Compe! Discovery
and Compel Plaintiff to Execute Discovery Authorizations on March 17, 2020 (hereinafter “Second
Motion”), which was followed by an Opposition on March 23, 2020 and a Reply on April 6, 2020.

BACKGROUND

On December 18, 2019, counsel for the Defendant requested the release of the Plaintiff's
medical and employment records. (Mot. 2.) Though all correspondence between lawyers was supposed
to be conducted by email, as previously agreed, Plaintiff's counsel responded by regular mail with a
response that she would not have her client execute the release forms because the released documents
would then be addressed to Defendant’s counsel who is not a party to litigation. (Mot. at 2. See Exhibit

2 to Mot.) Plaintiffs counsel also stated that the release forms did not indicate that any documents
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received by Defendant’s counsel were required to be provided to Plaintiff's counsel within twenty days
of receipt. (Mot. at. 2. See Exhibit 2 to Mot.)

Thereafter, Defendant's counsel redrafted the release forms to include the information
mentioned by Plaintiff's counsel and sent them back. (Mot. at 2.) This time, Defendant’s counsel also
included releases for income tax, criminal history, and employment records. (/d.) Plaintiff's counsel
took issue again because confidential medical records could not be submitted to Defendant’s counsel,
but only to the Defendant directly. (/¢. at 3.) Defendant’s counsel then offered to meet and confer
regarding the discovery issues, but Plaintiff's counsel declined, stating that the requirement to meet
and confer prior to the filing of a discovery motion would be waived. (/d. See Exhibit 4 to Mot.)

Defendant’s counsel thus accuses Plaintiff's counsel of attempting to stall discovery by
refusing to execute the authorizations. (Mot. at 1.) Plaintiff's counsel has not asserted that the
information is not discoverable, but rather “that an attorney is not entitled to receive discovery on
behalf of his client.” (/d.) The Defendant notes that these authorizations are standard in personal injury
cases such as this, and also that Rule 37(a)(5)(A) of the Virgin Islands Rules of Civil Procedure entitles
the Defendant to costs and fees incurred in filing this motion. (/d.)

In the very brief opposition, Plaintiffs counsel argues that this matter is moot because
Defendant’s counsel sent the release forms again—properly modified—on January 13, 2020 and the
Plaintiff has been asked to go to counsel’s office to sign them. (Opp’n 1.) The releases will reportedly
be sent out within thirty days, as per the request for production that they accompanied. (/d.) In the
Reply, the Defendant argues that the Plaintiff is still attempting to delay and that waiting an additional
thirty days is unreasonable. (Reply 1-3.)

The Defendant’s Second Motion was filed more than a month after the Opposition and Reply
were filed. Therein, Defendant’s counsel again asserts that Plaintiff's counsel is “stonewalling

discovery” and refusing to confer. (Second Mot. 1.) According to the Defendant, the Plaintiff decided
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to execute the releases subject to a confidentiality agreement, but the agreement was not provided to
the Defendant until February 28, 2020. Ud. at 3.) On March 3, 2020, the Defendant informed the
Plaintiff that it intends to proceed with these motions rather than sign the confidentiality agreement.
(/d.) This was after multiple attempts to set up a time to meet and confer between January and the end
of February. (/d.) On February 27, 2020, at an agreed upon time, Defendant’s counsel called Plaintiff's
counsel to confer and was told they would have to reschedule due to unavailability. (/d. at 4.) The
Defendant asserts that the Plaintiff has failed to act in good faith. (/d.)

Also contained in the Second Motion is a request to compel full responses to Interrogatory Nos.
1, 2, and 14 and Request for Production Nos. 6, 35, and 46, which will be discussed more fully below.

DISCUSSION
1) Execution of Discovery Releases

Pursuant to the Virgin Islands Rules of Civil Procedure, “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” V.I.R. Civ. P.
26(4). To be clear, the definition of “party” includes people “acting by counsel.” V.I.R. Civ. P. 1-2(a).

The Court agrees with the Defendant that Plaintiff's counsel is stalling. Not only are these
releases standard for personal injury and discoverable, but Defendant’s counsel even edited them to
include language requested by Plaintiff's counsel. To assert that documents cannot be released to a
party’s attorney is absurd and the Court has never heard such a unique argument. Furthermore, the idea
that documents must be released to a party and not the party’s attorney is not supported by the
definition of “party” provided in the Rules of Civil Procedure.

As for the releases as provided to the Plaintiff in the form of requests for production, the Court
will order the execution of the releases prior to the time to respond to the requests because the Plaintiff
has had plenty of time to sign them and has never had any reason to decline to do so. Failure to timely

return the releases to the Defendant’s counsel will result in sanctions.
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2) Interrogatory Responses

Pursuant to the Rules of Civil Procedure, “[a]n interrogatory may relate to any matter that may
be inquired into under Rule 26(b) [generally, that it is relevant and discoverable].” V.I.R. Civ. P.
33(a})(2). Each interrogatory must be answered fully and any grounds for objection must be stated or
it may be waived. V.I.R. Civ. P. 33(b)(3)-(4).

As to Interrogatory Nos. 1, 2, and 14, the Defendant asserts that the responses are deficient
because they do not fully identify individuals in accordance with the meaning of “identify” established
in the discovery request. (Second Mot. at 4-5.) The Defendant requested full names, home and business
addresses (current and during the time period relevant to the case), businesses and professions during
the relevant time period, and every office, title, or position held during that time period. (Id. at 5.)

The Defendant takes issue with the response to Interrogatory No. | because the Plaintiff
provided only the name of the Plaintiff and none of the other information, which the Court finds to be
blatantly deficient. For Interrogatory No. 2, the Defendant requested identification of people having
custody of papers pertaining to the Plaintiffs income. (Second Mot. at 5.) However, the identity of
such persons was not given. Also requested were the names, business addresses, dates of employment,
and pay rates of the Plaintiff for the last ten years. (Id.) The Plaintiff appears to have provided
information for only the last nine years, which is not a full response.

With regard to Interrogatory No. 14, the request was to identify all persons known or believed
by the Plaintiff, his agents, or attorneys, to have any knowledge about this lawsuit and specify their
scope of knowledge. (Id. at 5-6.) The Plaintiff listed five people but did not identify them fully as per
the established definition of “identify.”

In this case, the Plaintiff has not objected to the interrogatories and must answer fully. A review
of the interrogatories and the Plaintiff's responses show that the responses are not complete. The

Plaintiff has neglected to fuily identify individuals and businesses, and for Interrogatory 12 has also
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failed to include information from 2010 in his response. As such, the Court agrees that the Plaintiff's
responses to Interrogatory Nos. 1, 2, and 14 require supplementation.
3) Request for Production Responses

The Defendant argues that the responses to Request for Production Nos. 6, 35, and 46 are also
insufficient. (Second Mot. 6.) In Request No. 46, the Defendant asked for “industry, government,
statutory, regulatory, or community/private standards, guidelines, and recommendations,” that the
Plaintiff asserts were violated by the Defendant or a non-party in relation to the Plaintiff's claim. The
Plaintiff's response was an objection that the request asks for work product.

Under Rule 26 of the Rules of Civil Procedure, a party generally may not discover documents
that are considered work product, which is “prepared in anticipation of litigation” by a party or their
attorney or other agent. V.ILR. Civ. P. 26(b)(3)(A). In this particular case, there is no conceivable way
that the requested documents can be deemed work product, because they could not have been prepared
in anticipation of litigation. The Defendant is seeking established procedures or guidelines that would
have been in effect at the time relevant to the Plaintiff's claims, not created afterward because of the
claims. The Plaintiff will be ordered to supplement accordingly.

As for Request for Production Nos. 6 and 35, the Defendant has requested copies of the
Plaintiff's tax documents evidencing his income for the last ten years, and copies of documents relating
to his employment for the last ten years, “including but not limited to records of income earned,
schedule and hours, policies, training, reviews, awards, disciplinary action, commendations,
correspondence, resumes and/or summaries of same.” (Second Mot. at 6.) The Plaintiff's response to
each was that his 2015 to 2018 Income Tax Return was previously produced. The Plaintiff's response
is clearly insufficient, because the Defendant has asked for much more than tax returns. Furthermore,
the documents already provided only cover the last five years, not ten. The failure to properly respond

is blatant, and the Court will order supplementation.
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CONCLUSION

In sum, the Court agrees with the Defendant that the Plaintiff has attempted to stall discovery
by not cooperating with the releases that need to be signed. The Plaintiff has also made several
insufficient responses to the Defendant’s discovery requests as discussed above. The Court will
therefore order the releases to be executed, order the supplementation of the insufficient discovery
responses, and will award costs and fees to the Defendant in filing these two motions. Accordingly, it
is hereby:

ORDERED that the Defendant’s Motion to Compel Plaintiff to Execute Discovery
Authorizations is GRANTED; it is further

ORDERED that the Defendant’s Motion to Compel Discovery and Compel Plaintiff to
Execute Discovery Authorizations is GRANTED; it is further

ORDERED that the Defendant is entitled to costs and fees, including attorney fees, incurred
in the filing and support of these two motions; it is further

ORDERED that the Plaintiff provide the Defendant with the properly executed releases within
FIVE (5) DAYS. Delay in delivering the releases will incur sanctions in the amount of five-hundred
dollars ($500.00) per each day of noncompliance with this Order. It is further

ORDERED that the Plaintiff will supplement discovery as indicated in the text of this
document within FOURTEEN (14) DAYS.

DONE and so ORDERED this Dy aay of June, 2020.

Tamara Charles ~ HAROLD Wf. WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court

-ourt Clerk Supervisor “2”

Dated: Uf; 23 fooao