United States District Court, W.D. Oklahoma
TIMOTHY D.DeGIUSTI UNITED STATES DISTRICT JUDGE
the Court is Defendant Equifax Information Services LLC's
First Motion to Compel Discovery Responses or in the
Alternative for a Determination of Law, and Request for
Attorney's Fees [Doc. No. 116], filed pursuant to
Fed.R.Civ.P. 37. Plaintiff has responded in opposition to the
Motion, which is fully briefed. Upon consideration, the Court
finds that the Motion should be granted in part and denied in
Equifax Information Services LLC (“Equifax”)
seeks an order compelling Plaintiff to answer interrogatories
and respond to document requests that were first served in
October 2017, and an order deeming admitted requests for
admissions that were served at the same time. Equifax alleges
that Plaintiff failed to provide any timely response to its
discovery requests, failed to comply with an agreement
between counsel to respond by January 24, 2018, later made
incomplete responses, provided deficient supplemental
responses in February 2018, and then refused to cure the
deficiencies. In addition to discovery rulings, Equifax
requests an order awarding reasonable costs and attorney fees
incurred in making the Motion, as authorized by Fed.R.Civ.P.
also requests a stay of Scheduling Order deadlines that are
affected by Plaintiff's failure to provide discovery or,
alternatively, an order dismissing Plaintiff's claims
against it pursuant to Fed.R.Civ.P. 41(b), due to an alleged
pattern of bad-faith conduct in discovery matters.
minor exceptions, Plaintiff does not dispute the procedural
history recited by Equifax in its Motion. Plaintiff instead
attempts to justify her failure to provide complete responses
to Equifax's discovery requests by raising three
objections: 1) the discovery sought by Equifax is not
relevant; 2) counsel for Equifax did not properly sign and
serve the requests until January 2018, and she timely
responded to those requests; and 3) no conduct warranting
dismissal has occurred. The first objection is baseless.
Equifax seeks information and documents that are relevant to
the claims and defenses asserted in this case, and Plaintiff
must respond to Equifax's requests in a proper manner.
primary point of disagreement between the parties is whether
Equifax properly signed and served its discovery requests on
Plaintiff in October 2017. Plaintiff asserts that the initial
requests were not properly signed because they do not bear a
handwritten signature of Equifax's counsel but only a
typewritten signature, “ Kendall W.
Carter.” Plaintiff contends this form of
signature, which is customary and acceptable for electronic
filings and correspondence, was ineffective because she did
not consent to email service of discovery papers.
See Fed. R. Civ. P. 5(b)(2)(E). Plaintiff argues
that she had “no duty to act on an unsigned . . .
request . . . until it [was] signed.” See Fed.
R. Civ. P. 26(g)(2). Plaintiff's counsel also denies
receiving the discovery requests that, according to the
certificate of Equifax's counsel, were served by mail
using the U.S. Postal Service on October 20, 2017.
Plaintiff's counsel argues in the response brief, and has
stated in communications between the parties, that he
received in October 2017 only courtesy copies of the requests
sent by email, which was not a proper form of service without
provides no legal authority for her position that a discovery
request signed with a typewritten signature may be treated as
an unsigned request under Rule 26(g)(2). Nor does Plaintiff
provide any authority for the proposition that only a
handwritten signature satisfies the signature requirement of
Rule 26(g)(1). According to the Tenth Circuit, “[t]he
law is settled that a printed name upon an instrument with
the intention that it should be the signature of the person
is valid and has the same force and effect as though the name
were written in the person's own handwriting.”
Roberts v. Johnson, 212 F.2d 672, 674 (10th Cir.
1954). There is no question in this case that Mr.
Carter's printed name was intended as his signature, and
there appears no reason to deviate from the settled rule.
Therefore, the Court finds that Equifax's discovery
requests were validly signed.
also seems to argue that she could disregard Equifax's
October 2017 discovery requests because she did not receive a
paper copy by mail and she did not give written consent to
service by electronic means, as required by Rule 5(b)(2)(E).
However, Equifax's counsel states by written declaration,
and certified at the time of service, that Equifax's
discovery requests were served “via U.S. Mail” on
October 20, 2017. See Carter Decl. [Doc. No. 116-1],
¶ 3 and Ex. 1 [Doc. No. 116-2] at 7, 18, 27 (ECF page
numbering). It is well-settled that “the law presumes
receipt of a properly addressed piece of mail.”
Davis v. United States Postal Serv., 142 F.3d 1334,
1340 (10th Cir. 1998); see Moya v. United
States, 35 F.3d 501, 504 (10th Cir. 1994). The Court
finds that a mere denial of mail receipt by Plaintiff's
counsel is insufficient to relieve Plaintiff of a duty to
respond under the circumstances presented, where actual
receipt by electronic means is admitted and no objection was
made until months later when Equifax's counsel inquired
about Plaintiff's lack of response. The Court
therefore finds that Plaintiff has failed to overcome the
presumption of receipt of Equifax's discovery requests,
and that Plaintiff's responses served in January and
February 2018 were untimely.
these reasons, the Court will compel Plaintiff to provide
full and complete responses to Equifax's discovery
requests and will deem admitted Equifax's requests for
admissions. If appropriate, Plaintiff may seek timely relief
from an admission by motion pursuant to Fed.R.Civ.P. 36(b).
Because the issues presented by Plaintiff's objections
had not previously been determined, however, the Court finds
that no order to pay Equifax's expenses in making the
Motion is warranted under the circumstances. See
Fed. R. Civ. P. 37(a)(5)(A)(iii).
seeks a stay of the case while discovery is completed, or
dismissal from the case as a sanction for Plaintiff's
failure to cooperate in discovery. The Court declines to
order an indefinite stay, and finds that Equifax has failed
to justify a dismissal at this time. Under the existing case
schedule, however, discovery was due to be completed by June
7, 2018, and dispositive motions are due by June 15, 2018.
See Scheduling Order [Doc. No. 78]; Order Extending
Deadline [Doc. No. 131]. Under these circumstances, an
extension of the remaining deadlines is necessary to permit
an orderly disposition of the remaining issues and claims.
THEREFORE ORDERED that Defendant Equifax Information Services
LLC's First Motion to Compel Discovery Responses or in
the Alternative for a Determination of Law, and Request for
Attorney's Fees [Doc. No. 116] is GRANTED in part and
DENIED in part, as set forth herein. Plaintiff shall serve
full and complete answers to Defendant Equifax Information
Services LLC's First Set of Interrogatories, and shall
serve full and complete responses to Defendant Equifax
Information Services LLC's Requests for Production of
Documents within 14 days from the date of this Order. All
objections are waived, except a claim of privilege may be
asserted in accordance with Fed.R.Civ.P. 26(b)(5) within 14
days. Unless otherwise ordered, Defendant Equifax Information
Services LLC's First Requests for Admission are deemed
FURTHER ORDERED that the remaining deadlines are amended as
follows: Discovery to be completed by August 6, 2018; all
dispositive and Daubert motions to be filed by July
9, 2018; and trial submissions (designations of deposition
testimony, motions in limine, requested voir dire, trial
briefs, requested jury instructions, and the Final Pretrial
Report) to be filed by August 13, 2018. The case is stricken
from the August 14, 2018 jury trial docket, to be reset.
Unless otherwise ordered, all other provisions of the
original Scheduling Order [Doc. No. 78] remain in effect.