The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
AND NOW, this 16th day of January, 2009, upon consideration of PLAINTIFFS' MOTION TO COMPEL RESPONSES TO DOCUMENT REQUESTS, INTERROGATORIES AND REQUESTS FOR ADMISSIONS DIRECTED TO DIRT MOTOR SPORTS, INC., with brief in support (Sealed Document Nos. 125 and 126), the AFFIDAVIT OF JOSEPH DECKER in support of Plaintiffs' Motion to Compel (Sealed Document No. 127), DEFENDANT DIRT MOTOR SPORTS, INC.'S OPPOSITION to the Motion to Compel (Document No. 149), the AFFIDAVIT OF THEODORE H. JOBES, ESQUIRE in support of Dirt Motor Sports, Inc.'s Opposition (Document No. 150), the REPLY BRIEF filed by Plaintiffs' in Support of their Motion to Compel (Document No. 153), and the AFFIDAVIT OF ALAN B. ROSENTHAL in support of Plaintiffs' Reply Brief (Document No. 154), it is ORDERED as follows:
Initially, the Court notes that the instant Motion to Compel arises out of Dirt Motor Sports, Inc.'s ("DMS") responses to Plaintiffs' First Set of Requests for Admissions, First Set of Interrogatories, and Second Request for the Production of Documents. In total, Plaintiffs propounded 9 interrogatories, 43 document requests,*fn1 and 145 requests for admissions, for a total of 197 requests. Plaintiffs contend that DMS ignored "a significant portion of the Discovery Requests," Reply Br. at 1-2; however, it appears that DMS responded to the clear majority of requests as only 30 responses are at issue in this motion to compel, to wit: Document Requests 4, 7, 13-14, 17-21, 25-27, 39 and 41-43; Interrogatories 1, 2, 4, and 8; and Request for Admissions 27, 95, 133-138, and 142-144.
Plaintiffs' motion to compel is GRANTED IN PART AND DENIED IN PART on or before January 23, 2009, Defendant Dirt Motor Sports, Inc. shall answer the pending requests for admissions, interrogatories, and request for production o documents to the best of its ability and understanding of the request(s), in accordance with the following rulings on the objections filed by Plaintiff.
Before addressing the merits of the objections to the responses to the Requests for Admissions, the Court notes that the parties have a fundamental disagreement, which the Court is simply not able to resolve. The parties' respective positions are each contradicted by the record. For example, DMS argues that counsel for Plaintiffs repeatedly informed DMS counsel that Plaintiffs did not have any issue with respect to DMS's answers to the Requests for Admissions. However, Exhibit 1 to Plaintiffs' Reply Brief clearly reflects that by letter of October 10, 2008, Alan B. Rosenthal, Esquire, counsel for Plaintiffs, complained to Theodore H. Jobes, Esquire, counsel for DMS, of the "frivolous responses" given by DMS in response to the request for admissions. Plaintiffs contend that DMS never responded to this correspondence, but again, the record contradicts this contention as Exhibit J to the Affidavit of Theodore H. Jobes is an email dated October 10, 2008 at 4:08 PM, from Attorney Jobes to Attorney Rosenthal in which Attorney Jobes objects to the Rosenthal letter of October 10, 2008 letter and its contents. Specifically, the Jobes' email states "You agreed that DMS's answers to the requests for admission were satisfactory." Additionally, in its Opposition Brief, DMS states that it "was not aware that plaintiffs had any issue with the responses until such time as it received plaintiffs' motion to compel." Brief in Opp'n, at n 3. Clearly, the exchange of correspondence and emails on October 10, 2008 between counsel refutes this statement. For these reasons, the Court will address the merits of the objections to the responses to the Request for Admissions:
27. Objection GRANTED. Response does not address the subject matter of the request; DMS shall provide a complete response to the request.
95. Request to deem Request for Admission 95 admitted is DENIED.
133. Objection DENIED. The document at issue is a personal document retrieved from the computer of Tom Deery and is likely irrelevant to the instant litigation.
134. Objection DENIED. The document at issue is a personal document retrieved from the computer of Tom Deery and is likely irrelevant to the instant litigation.
135. Objection DENIED. DMS is not able at this time to determine whether a particular document may be "admissible as substantive evidence at trial."
136. Objection DENIED. The document at issue is a personal document retrieved from the computer of Tom Deery and is likely irrelevant to the instant litigation.
137. Objection DENIED. The document at issue is a personal document retrieved from the computer of Tom Deery and is likely irrelevant to the instant litigation.
138. Objection DENIED. DMS is not able at this time to determine whether a particular document may be "admissible as ...