Weinstein v. Harmon ( 2014 )

Weinstein v. Harmon et. al., No. 139-3-13 Bncv (Wesley, J. Apr. 8, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Bennington Unit Docket No. 139-3-13 Bncv
Jennifer Weinstein,
Plaintiff
v.
Tommy A. Harmon,
Tommy A. Harmon, Jr. on behalf o,
Maureen Harmon,
Maureen Harmon,
Nelson Harmon, DECISION ON MOTION
Rocking Stone Farm Homeowners,
Rocking Stone Farm,
Jeanmarie Leonard,
Carol Sayour,
Nelson Harmon, on behalf of,
Lloyd J. Weinstein,
Weinstein Groupe, P.C., The,
Defendants
Decision and Order on Pending Discovery Motions
Plaintiff sues Defendants over the construction of a barn and stone wall in a housing
development in Manchester, Vermont. Jeanmarie Leonard and Carol Sayour counterclaim for
breach of contract, trespass, invasion of privacy, assault, and abuse of process. The Court has
previously issued orders addressing motions to dismiss certain counts and parties on Sept. 26,
2013, and denying Plaintiff’s motion to disqualify Christopher Roy, Esq., attorney for certain of
the defendants.
Now before the Court are various discovery-related motions. As briefly elaborated
below, these motions represent unreasonable failures on the part of counsel to resolve routine
matters that should not occupy the Court. See, V.R.C.P.26(h). It is difficult to escape the
conclusion that the course of this litigation threatens to veer off into personality conflicts
between counsel.
On February 13, 2014, Plaintiff and Third-Party Defendants filed a motion to extend time
to serve discovery demands. The stipulated scheduling order required the parties to send all
written discovery requests by January 15, 2014. Attorney Lloyd Weinstein asserts he misread
the schedule as requiring written discovery requests to be served by April 1, 2014.
On March 3, 2014, Defendants opposed Plaintiff’s motion to extend time, noting the
request was filed one month after the deadline and arguing Plaintiff has not provided a
sufficient explanation for the lack of a timely request for relief. Defendants cite Carpenter v.
Central Vermont Medical Center, 170 Vt. 565, 568 (1999) (mem), but that case holds that the
trial court has broad discretion in allowing amendments to scheduling orders. See 170 Vt. at
568. Although it is important for counsel to follow stipulated scheduling orders, and the Court
expects requests for amendments to be supported by demonstrated diligence, there is no
prejudice to Defendants to allowing an extension. See V.R.C.P. 16.2. According to the stipulated
scheduling order, the parties have until September 2, 2014 to complete discovery. Moreover,
the scheduling order indicates the parties have until August 15, 2014 to complete mediation.1
Trial is still months away, and the Court concludes that the only explanation for Defendant’s
refusal to grant Plaintiff’s request for accommodation in the early stages of discovery is
personal pique between counsel. The Court will grant the motion to allow Plaintiff to propound
written discovery, and deny Defendant’s request for a protective order.
The Court next considers Defendants’ and Third-Party Plaintiffs’ motions to compel
discovery. Defendants served Plaintiff and Third-Party Defendants with a series of
interrogatories and requests to admit. To many of the discovery requests, Plaintiff responded
by writing: “Plaintiff objects to this demand as the same goes beyond the scope of permissible
discovery and is not related to any claims, counter-claims or defenses in the matter nor is the
same likely to lead to discoverable information.” To a number of questions asking for further
explanation of Plaintiff’s claims, Plaintiff wrote: “This allegation was made because the same is
true and accurate.” Third-Party Defendants made similar responses. Additionally, Plaintiffs did
not produce documents but offered to have them available in Attorney Weinstein’s office in
Woodbury, New York.
Under V.R.C.P. 26(b), parties may discover any relevant non-privileged material. V.R.C.P.
33 allows the use of interrogatories. Plaintiff’s and Third-Party Defendant’s answers are not
acceptable responses to Defendants’ and Third-Party Plaintiffs’ discovery requests. Generally,
Defendants’ and Third-Party Plaintiffs’ questions seek relevant background information about
this case. Plaintiffs’ and Third-Party Defendants’ responses do not comply with V.R.C.P. 26. If a
party objects to a discovery request, there must be a reasoned explanation for the refusal to
respond as opposed to vague boilerplate.
Plaintiff’s resistance to the discovery requests appears the more unreasonable as it
ignored the form required by the rules of discovery. Under V.R.C.P. 33, a party that answers an
interrogatory with an objection must reproduce the interrogatory before the objection.
Reproducing the interrogatory assists opposing counsel and the Court in evaluating the
objection. The party answering the interrogatory must also sign the interrogatories. V.R.C.P. 33.
Finally, Attorney Weinstein’s insistence that opposing counsel travel to his New York
office to review documents is without support. Plaintiff brought this case in Vermont Superior
Court. The parties have residences in Vermont and they use Vermont counsel. Attorney
Weinstein must make documents available in Vermont. Demanding that opposing counsel
travel to Woodbury, New York to view documents is unreasonable.
As indicated at the outset, none of the rulings made in this entry ought to have been
necessary. Collegial cooperation in avoiding disputes over discovery is required by the rules,
and will be enforced by this Court. Counsel can expect any repetition of such dereliction as is
1
The order indicates the parties have until August 15, 2013. The parties filed the order on December 31, 2013. The
Court assumes this date is a typographical error and the parties intended the order to read August 15, 2014.
represented by the petty nature of the disputes disposed of here to be met with sanctions,
including an award of attorney’s fees.
Order
The Court GRANTS Plaintiff’s motion to extend time to serve discovery requests to
accommodate the interrogatories and requests to produce which were served on Defendants
beyond the initial deadline. Defendants shall respond to such requests within 15 days of this
entry. The Court GRANTS Defendants’ and Third-Party Plaintiffs’ motions to compel discovery.
Plaintiff and Third-Party Defendants shall make complete responses within 15 days of this
entry. The Court DENIES Defendants’ motion for a protective order Dated at Bennington,
Vermont on April 3, 2014.
Electronically signed on April 07, 2014 at 03:42 PM pursuant to V.R.E.F. 7(d).
______________________________________
John P. Wesley
Superior Court Judge