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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN LOUVENA PENN, ) ) Plaintiff, ) ) Vv. ) CASE NO. ST-12-CV-290 ) WHITECAP INVESTMENT CORP. d/b/a ) PARADISE LUMBER, ) ) Defendant. ) ) MEMORANDUM OPINION Pending before the Court is Plaintiff's November 5, 2012, Motion to Compel.' For the following reasons, Plaintiff's Motion will be denied without prejudice. STANDARDS Under Fed. R. Civ. P. 26(a)(1)(A), a party holds an affirmative duty to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information --- along with the subjects of that information --- that the disclosing party may use to support is claims or defenses . . ”? Rule 26(b)(1) further states that a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” including “the identity and location of persons who know of any discoverable matter.”* ' Defendant responded on November 19, 2012. ? Fed. R. Civ. P. 26(a)(1)(A). 3 Fed. R. Civ. P. 26(b)(1). Penn v. Whitecap, et al. Case No. ST-12-CV-290 Memorandum Opinion, December 12, 2012 However, under the Model Rule of Professional Conduct 4.24 and Mendez v. Hovensa, [c]ounsel for an opposing party may not contact any employee of a corporate party represented by counsel (1) who supervises, directs, or regularly consults with the organization's lawyer concerning the matter or (2) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability or (3) who has authority to obligate the organization with respect to the matter. Thus, while “a person's conduct ‘may be imputed’ means something more than a fanciful construct of potential liability,” a party does not need to disclose the contact information of any employee of a corporate party on a showing of potential “imputation” based on the specific circumstances of the case and particular employee.° The burden rests on the party that refuses to disclose to show that the employee falls under the ambit of one of the Mendez considerations. However, “[t]he practice and procedure in the Superior Court [is also] .. . governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by the Rules of the District Court, [and] the Federal Rules of Civil Procedure. .. .” Here, Local R. of Civ. P. 37.1 and 37.2, which pertain to a dispute over discovery, apply because the primary purpose behind Local R. of Civ. P. 37.1 and 37.2 is in no way inconsistent with the Superior Court Rules. Specifically, the primary objective of Local * The American Bar Association Model Rule of Professional Conduct 4.2 states the following: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” > Nathaniel v. Am. Airlines, 2008 WL 5046848, *3 (D.V.I. Nov. 20, 2008) (citing Mendez v. Hovensa, LLC, 49 V.1. 949, 855-56 (D.V.1. 2008). ° Mendez, 49 V.1. 949 at 857-858 (citing Curley v. Cumberland Farms, 134 F.R.D. 77 (D.N.J. 1990). See Gordon v. Bechtel Intern., 2001 WL 1727251, *2 (D.V.I. Dec. 28, 2001) (noting that a person’s conduct may be ‘imputed’ where they hold “managerial responsibility with the ability to exercise significant individual judgment outside of established policies and guidelines.”) Penn v. Whitecap, et al. Case No. ST-12-CV-290 Memorandum Opinion, December 12, 2012 R. of Civ. P. 37.1 and 37.2 is for the parties to “confer in a good faith effort to eliminate the necessity for the motion or to eliminate as many of the disputes as possible.” In fact, Local R. of Civ. P. 37.1 and 37.2 are entirely complimentary with the discovery rules applicable to this jurisdiction under Fed. R. Civ. P. 26-37 whose primary objective is “to encourage extrajudicial discovery with a minimum of court intervention . . . 8 Thus, a moving party must closely follow the procedural and filing requirements of Local R. of Civ. P. 37.1 and 37.2 prior to filing a motion to compel discovery. For instance, the moving party bears the burden of first attempting to arrange for a conference of the parties to resolve the dispute.” Where “counsel are unable to resolve all of their differences [at the conference], they shall formulate and sign a written stipulation to that effect.”!° ANALYSIS Plaintiff alleges that Defendant has failed to provide sufficient factual basis for Defendant to withhold the contact information of several Paradise Lumber employees under the “no contact” rule of Model Rule of Professional Conduct 4.2."' In response, Defendant argues that all the listed employees are protected by Model Rule of Professional Conduct 4.2. Specifically, Defendant states that three of the employees, " LRCi 37.1. ® Fed. R. Civ. P. 26 advisory committee’s note (1970) (noting that the “party seeking discovery, rather than the objecting party, is made responsible for invoking judicial determination of discovery disputes not resolved by the parties.””) ° LRCi 37.1 (“It shall be the responsibility of counsel for the moving party to arrange for this conference.”). '© | RCi 37.2(a). Further, under Local R. of Civ. P. 37.2(c), “[t]he Court will not consider any discovery motion in the absence of (1) the signed stipulation and certification required by LRCi 37.2(a), or (2) a declaration from counsel for the moving party establishing that opposing counsel: (1) failed to confer in a timely manner after receipt of a letter requesting a conference under LRCi 37.1; or (2) failed to sign the stipulation and certification required by LRCi 37.2(a).” "' Plaintiff's Motion to Compel, Page 3, Oct. 29, 2012. Penn v. Whitecap, et al. Case No. ST-12-CV-290 Memorandum Opinion, December 12, 2012 Angela LaPlace, Brian Rourke, and Johana Paris, are all corporate executives or supervisors protected under the first Mendez category, while the remaining six employees are protected by the second Mendez category.'* Here, however, the Court does not need to decide whether Defendant has provided sufficient information to show that the employees fall under one of the Mendez categories because Plaintiff has not demonstrated that Plaintiffs counsel made sufficient efforts to “confer in a good faith effort to eliminate the necessity for the motion or to eliminate as many of the disputes as »13 prior to filing his motion. possible, Where the moving party cannot obtain a written stipulation pursuant to Local R. of Civ. P. 37.2(a), under Local R. of Civ. P. 37.2(c), the moving party must submit “a declaration from counsel for the moving party establishing that opposing counsel: (1) failed to confer in a timely manner after receipt of a letter requesting a conference under LRCi 37.1; or (2) failed to sign the stipulation and certification required by LRCi 37.2(a).” ”14 stating she spoke with defense Here, Plaintiff's counsel submits a “Certification counsel and also wrote an October 22, 2012, letter to try to obtain the contact information of the employees in question. The letter requested that the information be provided by October 26, 2012, or to indicate a date to “meet and confer” in regards to the matter.!> However, Defendant promptly responded to Plaintiff in a letter dated October 26, 2012, stating he would not disclose the contact information of the employees because '2 Defendant’s Opposition to Plaintiff's Motion to Compel, Pages 5-6, Nov. 19, 2012. Defendant mistakenly referred to only “five other employees” other than the corporate executives or supervisors, but the list on Page 4 actually shows six remaining employees: (1) James Wattley, (2) Christina Abraham Callwood, (3) Lander Alfred, (4) Tiffany Liburd, (5) David Samuel, and (6) Ronald Thorson. ° TRCi 37.1. '4 Plaintiff's Motion to Compel, Page 5, Oct. 29, 2012. 'S Plaintiff's Motion to Compel, Exhibit 2, Oct. 29, 2012. Penn v. Whitecap, et al. Case No. ST-12-CV-290 Memorandum Opinion, December 12, 2012 “[P]laintiff is ethically barred from contacting those employees directly,” and closed the letter by stating “I trust that the forgoing dispenses with these issues....”"° The timely letter, does not suggest, as Plaintiff contends, that “any further communication [with Defendant] would be futile.”'’ Plaintiff could have easily sent another letter requesting a conference under Local R. of Civ. P. 37.1, or in the alternative, seek a joint stipulation stating that the parties cannot resolve their differences under Local R. of Civ. P. 37.2(a), rather than attempt to prematurely resort to the procedures set forth in Local R. of Civ. P. 37.2(c). Thus, Plaintiff does not provide any evidence that Defendant “failed to confer in 1718 a timely manner after receipt of a letter requesting a conference under LRCi 37. (emphasis added). '6 Plaintiff's Motion to Compel, Exhibit 3, Oct. 29, 2012. 7 Plaintiff's Motion to Compel, Page 5, Oct. 29, 2012. '§ | RCi 37.2(c). Penn vy. Whitecap, et al. Case No. ST-12-CV-290 Memorandum Opinion, December 12, 2012 Accordingly, because the moving party bears the burden of showing reasonable efforts to resolve a discovery dispute between the parties in accordance with the provisions of Local R. of Civ. P. 37.1 and 37.2, Plaintiff's Motion to Compel is denied without prejudice to re-filing.'? An Order consistent with this Opinion shall follow. Dated: December Zz , 2012 =~ SS — HON. MICHAEL CTC. DUNSTON Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT | 5 OF THE VIRGIN ISLANDS ori B. Tyson /, Court Clerk Supervisor VEU |fa# '° Despite the fact that the Court does not reach the issue of whether Defendant has provided sufficient information to show that these particular employees fall under one of the Mendez categories, the Court highlights that Defendant still ultimately bears this burden. In accordance with the spirit of the Fed. R. of Civ. P. “to encourage extrajudicial discovery with a minimum of court intervention,” Fed. R. Civ. P. 26 advisory committee’s note (1970), Defendant should provide Plaintiff with sufficient factual information as to why each employee falls under one of the Mendez categories. For example, at a minimum, provide the employee’s position(s) within the company. SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN LOUVENA PENN, ) ) Plaintiff, ) ) Vv ) CASE NO. ST-12-CV-290 WHITECAP INVESTMENT CORP. d/b/a PARADISE LUMBER, Defendant. ORDER Upon consideration of the premises, it is hereby ORDERED that Plaintiff's November 5, 2012, Motion to Compel is DENIED without prejudice; and it is ORDERED that copies of this Order and Memorandum Opinion shall be directed to counsel of record. Dated: December “+, 2012 — Cc sa HON. MICHAEL C. DUNSTON netia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT Clerk of Cow OF THE VIRGIN ISLANDS A Lori B. Tygon Court Clérk Supervisor (7 //.3 / /Z