argument fails because the Southern's employees are not specifically named in the clause. Indeed, even in Willamette's own words, general language is used. This will not suffice.
In a final attempt at avoiding summary judgment, Willamette attempts to show that material facts are in dispute. First, in its Response, though not in its Brief, it alleges that the Hold Harmless Clause was specifically negotiated, which conflicts with Southern's assertion that the clause contained standard contractual language. Significantly, neither party shows how this fact is relevant to the analysis set forth in Bester. Indeed, whether the language in the clause was specifically negotiated or not has no bearing on whether this language specifically states that the employer is willing to indemnify another party for injuries to its own employees.
Next, Willamette asserts that "Southern's role and their degree of negligence in regard to the plaintiff's injuries are genuine issues of material fact." 3d Party Pl.'s Br. at 9. These issues may be in dispute, but they simply have no relevance to whether Southern intended to waive its statutory immunity relative to injuries suffered by its employees in the workplace.
III. Discovery Motions
The Clarks have filed two Motions to Compel, one with respect to documents in Southern's possession and the other with respect to documents in Willamette's possession. We will first address the former motion.
Plaintiffs served a Request for Production of Documents on Southern on September 12, 1994. On August 24, 1995, Southern had still not produced the documents at issue, and as such the Clarks filed a Motion to Compel. On September 7, 1995, Southern responded that it would willingly turn over the requested documents within two weeks. As more than two weeks have passed since Southern's response, we assume this motion is moot and as such will deny it. Should this assumption be incorrect, plaintiffs may file another such motion and also request sanctions.
On September 14, 1993, the Clarks served Willamette with their First Request for Production of Documents. On January 27, 1994, Willamette served answers to this request. Willamette subsequently provided two supplemental responses to the Clarks' request. On May 3, 1994, the Clarks served their Second Request for Production of Documents on Willamette. Willamette served its response on the Clarks on June 20, 1994.
Subsequently the Clarks deposed two Willamette employees, Richard Slayter and Donald Neilson. During their testimony they referred to various company documents that the Clarks had not received pursuant to their earlier requests for production of documents. Accordingly, in a letter dated April 19, 1995, the Clarks requested that Willamette provide them with copies of the "general lockout, draining and tagging procedures maintained by Willamette's operations department, the June 8, 1993 lockout sheet, identification or [sic] other person or persons involved in locking out Willamette's equipment on June 8, 1993 and digital control system records for June 7 through June 9, 1993." Pl.'s Mot. Dated Aug. 24, 1995 (Doc. 11) P 6 (emphasis added).
Depositions of Willamette employee William Shuey and Southern employee Tonnie Thompson were taken on June 14, 1995. By letter dated June 19, 1995, the Clarks reiterated their earlier request and additionally requested other documents pursuant to the depositions taken on June 14, 1995.
By letter dated August 17, 1995, Willamette responded to the Clarks' letter. The substance of this response was that many of the documents were either not available or did not exist. The Clarks subsequently filed the instant motion. Willamette filed its response to the Motion to Compel, which refers us to their letter dated August 17, 1995.
The Clarks filed a reply, and argued that Willamette's response was inadequate. They point out that the documents that they are requesting were referred to in depositions by one or more of three Willamette employees and/or a Southern employee. It asserts that the letter which denies the existence of the documents at issue relies on a former Willamette employee who is not connected with the operations or power group at Willamette. It notes that this letter, which does not rely on sworn testimony, directly contradicts deposition testimony, which is sworn.
To the extent these documents exist, we agree with the Clarks that they must be produced. However, it is of little use for this Court to order the production of documents which do not exist. Thus, to the extent that all or some of the documents referred to in the Clarks' Motion to Compel exist, we will order their production. To the extent that all or some of the these documents do not exist, we shall order Willamette to present sworn testimony, in the form of affidavits or depositions, by personnel with the appropriate responsibility and knowledge of the appropriate groups or departments at Willamette, to this effect.
Lastly, the Clarks request that this Court order Willamette to respond within twenty days of this Order, and further request that discovery be extended to a date sixty days after Willamette has served its response. They request this additional discovery time so that any discovery arising from Willamette's response can be completed. Willamette states that it does not object to an additional sixty days of discovery. We will grant the Clarks' request.
An appropriate Order follows.
Maurice B. Cohill, Jr.
AND NOW, to-wit, this 12th day of March, 1996, it is hereby ORDERED, ADJUDGED, and DECREED that:
(1) The third-party's defendant's Motion for Summary Judgment (Doc. 18) is granted.
(2) The plaintiff's Motion to Compel (Doc. 10) is denied as moot.
(3) The plaintiff's Motion to Compel (Doc. 11) is granted. To the extent that all or some of the documents referred to in the Clarks' Motion to Compel exist, Willamette shall produce them; to the extent that all or some of the these documents do not exist, Willamette shall present sworn testimony, in the form of affidavits or depositions, by personnel with the appropriate responsibility and knowledge of the appropriate groups or departments at Willamette, to this effect.
Maurice B. Cohill, Jr.
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