In 2011, Top’s Personnel entered into a reinsurance agreement with Applied Underwriters Captive Risk Assurance Company (“AUCRA”), and several years later executed a promissory note (“the Note”) in favor of a related entity, Applied Underwriters. Applied Underwriters (“Plaintiff”) sued Top’s Personnel (“Defendant”) for breach of its obligations under the Note, and Defendant moved to compel arbitration pursuant to an arbitration clause in the reinsurance agreement. The court denied the motion to compel arbitration because, on the evidence before it, Plaintiff was not subject to the arbitration clause. However, the court acknowledged the possibility that discovery might show circumstances that justify binding Plaintiff to the arbitration clause in AUCRA’s reinsurance agreement.
Defendant sought discovery as to the relationship between the two entities, the reinsurance agreement, and the Note’s connection to that agreement. Defendant moved to compel complete responses to its interrogatories and document requests, as well as sought to depose Plaintiff’s counsel. The court granted that motion in part, requiring revised responses to discovery requests, but denied the request to depose Plaintiff’s counsel. Defendant subsequently filed another motion to compel to remediate what Defendant argued were continued deficiencies in Plaintiff’s discovery responses.
The court granted Defendant’s motion to compel in full, including allowing the deposition of Plaintiff’s counsel and imposing sanctions for Plaintiff’s failure to comply with the court’s first order. The court addressed each disputed response in a piecemeal fashion, issuing specific directives for Plaintiff to cure its deficient responses by answering completely interrogatories regarding the negotiations of the Note and why different entities signed the Note and the reinsurance agreement, producing any correspondence or communications regarding the Note or reinsurance agreement, and supplementing its initial disclosures to include relevant information about all individuals with discoverable information.
Furthermore, the court granted the motion to compel the deposition of Plaintiff’s counsel. Whereas before the court ordered Defendant to attempt to first depose another individual who allegedly had the same information as Plaintiff’s counsel, this time the court determined the deposition was necessary because some of Plaintiff’s revised discovery responses and other communications indicated the attorney was the only individual involved in negotiating the Note on behalf his client.
Finally, the court granted Defendant’s request for sanctions, including attorney’s fees, for Plaintiff’s failure to comply with . The court concluded that the majority of the second motion was previously addressed during Defendant’s first motion to compel and the resulting order, and moreover it was Plaintiff’s failure to fully comply with the previous order that necessitated the second motion. Thus, an award of sanctions and attorney’s fees was just and sufficient to address Plaintiff’s discovery failures.