JAMES P. SMITH Petitioner
NATIONAL UNION FIRE INSURANCE COMPANY Respondent/Insurer for RSA-USA, INC./IDC SERVICES, INCORPORATED Employer.
ORDER REGARDING DISCOVERY MOTIONS
parties have filed cross-motions to compel discovery.
Respondent (National Union) has also filed a Motion
To Admit Deposition As A Statement.
Union's motion to compel seeks an order directing
petitioner to serve overdue responses to
Respondent's Request For Supplementation Of Prior
Responses. Subsequent to the filing of the motion
the petitioner (Smith) filed a notice stating that he had
supplemented his responses as requested. The motion therefore
Union's second motion asks that a transcript of a
deposition of Janet Weiringa be admitted "as a sworn
statement." The deposition was taken by National Union
in a prior proceeding involving the parties but stricken
because of inadequate notice to Smith, who did not attend the
deposition. Order Granting Motion For Protective Relief,
Smith v. National Union Fire Insurance, WCC No.
9205-6445 (October 14, 1992). Granting the present motion
would circumvent the Court's prior Order. Moreover, the
deposition does not satisfy the criteria of Rule 804,
Mont.R.Evid., since petitioner did not have an opportunity to
cross-examine the deponent.
an affidavit of Thomas A. Marra indicates that Smith's
counsel, Randall O. Skorheim, failed to respond to his
request made on October 21, 1993, that Mr. Skorheim contact
him regarding a new deposition. Why Mr. Marra or Ms. Sexe did
not follow up sooner is unexplained. In reviewing the motions
presently before the Court, as well as the October 14, 1992
Order, it appears that the parties' attorneys have
difficulty cooperating and communicating with one another.
The time for taking Ms. Weiringa's deposition will
therefore be extended to March 18, 1994.
I have considered Smith's motion to compel further
responses to Requests for Production Nos. 1 through 4 and
Interrogatories Nos. 1, 2, 3 and 5. National Union interposed
relevancy objections to all but Interrogatory No. 1 and
Request for Production No. 2. Petitioner asks that the
objections be overruled because they were not served within
the 20 days allowed by Court rules, ARM 24.5.323 and 324, and
argues that the information sought is relevant. He also
argues that the responses to Interrogatories Nos. 1 and
Request for Production No. 2 are inadequate.
response to Request For Production No. 2 is adequate. The
request and the response were as follows:
REQUEST NO. 2: Any an [sic] all writings regarding
employment of the Petitioner by the employer, R.S.A. -
U.S.A., Inc. or I.D.C. Services Inc.
RESPONSE: The entire file regarding James Smith
maintained by R.S.A. - U.S.A., Inc., or I.D.C. Services, Inc.
was produced to the Claimant and his attorney on 9/3/92 and
in addition was supplemented on 10/20/92.
contends that the entire file was not produced. National
Union replies that it was. Smith has not provided any
supporting evidence for his contention, so the Court must
assume that the entire file was provided.
answer to Interrogatory No. 1 is similarly adequate. The
interrogatory and its answer were as follows:
INTERROGATORY NO. 1: Did the Employer R.S.A. -
U.S.A., Inc. or I.D.C. Services, Inc., comply with A.R.M.
24.29.708 during the time of Petitioner's employment in
1991? If so, please describe the exact location of the work
place where any such notice was posted and the dates that
such notice was posted.
ANSWER: It is unknown if a notice was posted. If any
further information is obtained, we will supplement this
is unknown to National Union whether the notice was posted,
then what other answer can be given? No evidence has been
presented which would show that National Union did not make a
diligent inquiry concerning the matter. Moreover, National
Union has a duty to reasonably supplement its answer if
further information later becomes ...