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
Appearances
Lee! 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 3 Motion to Compel Plaintiffto 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 Compel 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) Plaintiff‘s counsel also stated that the release forms did not indicate that any documents
Klalik t Osage STY
2020 Vi Super 069
SX 2019 CV 06]
MEMORANDUM OPINION and ORDER
Page 2 of6
received by Defendant s counsel were required to be provided to Plaintiff’s counsel within twenty days
ofreceipt (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 (Id) Plaintiff‘s counsel
took issue again because confidential medical records could not be submitted to Defendant’s counsel,
but only to the Defendant directly (1d at 3 ) Defendant s counsel then offered to meet and confer
regarding the discovery issues, but Plaintiffs counsel declined, stating that the requirement to meet
and confer prior to the filing of a discovery motion would be waived (Id 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
l ) Plaintiffs counsel has not asserted that the
information is not discoverable but rather
that an attorney is not entitled to receive discovery on
behalfofhis client ’ (1d) The Defendant notes that these authorizations are standard in personal injury
cases such as this and also that Rule 37(a)(5)(A) ofthe Virgin Islands Rules ofCivil Procedure entitles
the Defendant to costs and fees incurred in filing this motion (1d )
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
Plaintiffhas been asked to go to counsel 5 office to Sign them (Opp n l ) The releases will reportedly
be sent out within thirty days, as per the request for production that they accompanied (Id) 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 5 Second Motion was filed more than a month alter 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
l ) According to the Defendant the Plaintiffdecided
loan/c t Osage SN
2020 v1 Super 069
sx 2019 CV 06]
MEMORANDUM OPINION and ORDER
Page 3 of6
to execute the releases subject to a confidentiality agreement but the agreement was not provided to
the Defendant until February 28 2020 (Id 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
(Id) This was after multiple attempts to set up a time to meet and confer between January and the end
ofFebruary (Id) 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 (1d at 4) The
Defendant asserts that the Plaintiff has failed to act in good faith (Id)
Also contained in the Second Motion is a request to compel full responses to lnterrogatory 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 l R Civ P
l 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 5 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 5 attorney is not supported by the
definition of party ’ provided in the Rules ofCivil Procedure
As for the releases as provided to the Plaintiff in the form of requests for production, the Court
will order the execution ofthe releases prior to the time to respond to the requests because the Plaintiff
has had plenty oftime 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
Kralik v Osage STX
2020 VI Super 069
SX 2019 CV 06]
MEMORANDUM OPINION and ORDER
Page 4 of 6
2)
Interrogatory Responses
Pursuant to the Rules of Civil Procedure,
[ain 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 fiilly 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
1 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 lnterrogatory 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 ofemployment,
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 lnterrogatory 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 Plaintiffhas not objected to the interrogatories and must answer fully A review
of the interrogatories and the Plaintiffs responses show that the responses are not complete The
Plaintiff has neglected to fully identify individuals and businesses and for Interrogatory 12 has also
KHz/1k v Osage STX
2020 V1 Super 069
SX 2019 CV 061
MEMORANDUM OPINION and ORDER
Page 5 of 6
failed to inciude information from 2010 in his response As such, the Court agrees that the Plaintiffs
responses to lnterrogatory 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
Plaintiffs 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 l R 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 Plaintiffs claims not created afterward because of the
claims The Plaintiffwill be ordered to supplement accordingly
As for Request for Production Nos 6 and 35
the Defendant has requested copies of the
Plaintiff5 tax documents evidencing his income for the last ten years, and copies ofdocuments 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 Plaintiffs 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
Klalik t Osage STX
2020 Vi Super 069
SX 2019 CV 06]
MEMORANDUM OPINION and ORDER
Page 6 of6
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 5 Motion
to Compel
Plaintiff to Execute Discovery
Authorizations is GRANTED
it is further
ORDERED that the Defendant 3 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 ofthese two motions; it is further
ORDERED that the Plaintiffprovide 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 fill:an of June, 2020
Tamara Charles
HAROLD W
WILLOCKS
Clerk ofthe Court
Presiding Judge of the Superior Court
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