James Baldwin, Plaintiff, v. State Farm Fire & Casualty Company, Inc., Defendant C/A No. 0:24-319-JFA-SVH United States District Court, D. South Carolina Filed June 06, 2024 Counsel James Baldwin, McCormick, SC, Pro Se. Elizabeth Fulton Morrison, Robert W. Whelan, Whelan Mellen and Norris LLC, Charleston, SC, for Defendant. Hodges, Shiva V., United States Magistrate Judge ORDER *1 In this case, James Baldwin (“Plaintiff”), proceeding pro se, sues State Farm Fire & Casualty Company, Inc. (“Defendant”), for breach of contract relating to an insurance policy issued it issued to him. This matter comes before the court on Defendant's second motion to compel. [ECF No. 53]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. For the reasons that follow, the undersigned grants Defendant's motion in full. I. Relevant Factual Background Plaintiff seeks coverage under an insurance policy for a loss to personal property caused by fire that occurred on June 6, 2017. Plaintiff was subsequently arrested on charges of first-degree arson and the burning of personal property to defraud an insurer. Those charges were nolle prossed on October 27, 2020, and Plaintiff filed this lawsuit against Defendant on December 20, 2023. Plaintiff alleges following the June 6, 2017 fire, he was told by agents, servants, employees of Defendant they would pay Plaintiff's insurance claim “if and when the arson charges were dismissed.” [ECF No. 1 ¶ 4]. Plaintiff alleges the arson charges brought against him were dismissed on or about October 23, 2020. Id. ¶ 5. However, he claims neither he nor the attorney he retained to defend him in the arson case were advised or made aware the charges were dismissed until approximately July 18, 2023, when Plaintiff “inadvertently learned” of the dismissal of the arson charges. Id. On March 15, 2024, Defendant served Plaintiff with its first set of interrogatories. [ECF No. 51-1]. On March 22, 2024, Defendant served Plaintiff with its first set of requests for production. [ECF No. 51-2]. On May 6, the undersigned received Plaintiff's discovery responses, postmarked April 24, 2024, with the certificate of service dated April 19, 2024. [ECF No. 53-1]. II. Discussion A. Legal Standard Fed. R. Civ. P. 26(b)(1) allows parties to obtain discovery regarding “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.....” Here, Plaintiff, as the party resisting discovery, has the burden to establish that the information is not relevant or proportional to the needs of the case. See, e.g., Waters v. Stewart, C/A No. 4:15-4143-RBH-TER, 2017 WL 770535, at *2 (D.S.C. Feb. 28, 2017). Fed. R. Civ. P. 37 defines the sanctions a court may levy on a party who refuses to cooperate in discovery. Rule 37(d) provides that a court may order sanctions, including dismissal, if a party, after being properly served with interrogatories or requests for production fails to serve its answers, objections, or written response. Fed. R. Civ. P. 37(d)(1)(A), (d)(3); see also Fed. R. Civ. P. 37(a)(5)(A) (“If the Motion [to Compel] Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees .... [unless] other circumstances make an award of expenses unjust.”). B. Analysis 1. First Set of Interrogatories *2 Defendant seeks the court to compel Plaintiff to provide full answers to its interrogatories 1, 2, 3, 5, 13, and 14, as follows: 1. Give the names and addresses of persons known to the parties or counsel to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements have been taken from the witnesses and indicate who has possession of such statements. A: Plaintiff answers this to the extent that this case is premature at best and have no proffer of proof at this time of who are individuals known to Plaintiff to be post-occurrence witnesses concerning the facts of this case. Upon further investigation, plaintiff in good faith shall make known his witnesses as the case progresses. 2. Set forth a list of photographs, plats, sketches or other prepared documents in possession of the party that relate to the claim or defense in the case. A: Plaintiff objects to the extent specifically that Defendant seek the disclosure of material protected by the work product doctrine, or which constitutes materials prepared in anticipation of litigation or trial preparation materials. 3. Set forth an itemized statement of all damages, exclusive of pain and suffering, claimed to have been sustained by Plaintiff. A: Plaintiff object to this request because it seeks documentation statements which the Defendant possesses. Furthermore, this request is not reasonably calculated to led to the discovery of admissible evidence and thus beyond the scope of permissible discovery. 5. For each person known to the plaintiff or counsel to be a witness concerning the facts of the case, set forth either a summary sufficient to inform the other party of the important facts known to or observed by such witness, or provide a copy of any written or recorded statements taken from such witnesses and whether you intend to call them as a witness at the trial of this matter. A: Plaintiff answers to the extent of preserving the duty to preserve to put forth witnesses to proffer relevant evidence as they become known to the Plaintiff that appears reasonably calculated to lead to the discovery of admissible evidence. 13. Please provide your telephone number(s) from June 6, 2017, through August 14, 2018 as well as the service provider (i.e. AT&T, Verizon, etc.). A: Plaintiff objects to this request because the information the Defendant seeks is privileged even to the extent if the information is non-privileged Plaintiff do[es] not recall a telephone number prior to Plaintiff's incarceration, nor the service provider. 14. Explain how Plaintiff learned the Arson Charges were dismissed on or about July 18, 2023, as alleged in Paragraph 5 of Plaintiff's Complaint. If you were notified by a person, please provide their contact information. A: Plaintiff objects to this request to the extent specifically the information Defendant seeks is privilege subject to the attorney-client privilege. [See ECF No. 51-1, ECF No. 53-1 at 7–9]. Defendant also asked Plaintiff to provide the dates of certain communications he asserts occurred with Defendant's agents, employees, or representatives in Interrogatories 9, 10, and 11, and Plaintiff responded as follows: *3 Plaintiff answers to the extent that Plaintiff had spoken to two (2) employees, agents, servants, or representatives of Defendant, Jane Does (1) and Jane Does (2) identifying themselves as State Farm Representatives. These two (2) individuals Plaintiff believed to be true about their job titles informing Plaintiff of claims Plaintiff filed and reciting the policy Plaintiff purchased. See id. 2. First Request for Production Defendant served Plaintiff with the following four requests for production, and Plaintiff responded as follows: 1. Produce a copy of all documents in your possession that relate to or arise from: a. the Fire; b. the Claim; c. the Arson Charges. A: The Plaintiff objects specifically to this vague and ambiguous request, it seeks documents which contain information subject to the attorney-client privilege. Please will you take notice and state with specificity what documents the defendant seeks to obtain that does not violate attorney-client privilege. 2. Produce a copy of all documents that support the allegations contained in this lawsuit. A: The Plaintiff objects to this request because it seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence and thus beyond the scope of permissible discovery. 3. Produce a copy of all documents you have either received or sent to Defendant, their agents, or their attorneys in connection with the Fire, the Claim, or the Arson Charges. A: The Plaintiff will produce the requested documents for inspection only. Due to the confidential sensitive nature of the documents requested, the Plaintiff will not permit photocopying or dissemination of these documents without a court order pursuant to Rule 16 of the Federal Court Rules of Civil Procedure, liming care of the copies to the litigation only and for specific purposes that are authorized by the Court. 4. Provide a copy of all documents that support the damages you are claiming in connection with this lawsuit. A: The Plaintiff repeats verbatim as if re-written in subparagraph 2 for such purposes of Defendant's request. A: Subject to and without waiving the forgoing general objections, the Plaintiff will produce all requests non-privileged documents copies of which accompany this response. [See ECF No. 51-2, ECF No. 53-1 at 1–2]. Plaintiff attached what appears to be two documents, one annotated with handwriting. [ECF No. 53-1 at 5–6]. 3. Plaintiff's Response In response to Defendant's arguments that Plaintiff must provide full and complete response to Defendant's discovery requests, that Plaintiff's reliance on the attorney-client privilege is improper, and that Plaintiff's designation of confidential material is unsubstantiated [see ECF No. 53], Plaintiff states only that he has cooperated in the discovery process and in good faith responded to Defendant's discovery requests. [ECF No. 64]. Plaintiff also argues, without explanation or support, that Defendant is filing frivolous documents with the court to mislead the court. See id. Defendant's motion to compel is granted in full, as Fed. R. Civ. P. 26(b)(1) allows parties to obtain discovery regarding “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.....” The court's review of the relevant interrogatories and requests for production show that the information sought is relevant, calculated to lead to the discovery of admissible evidence, and proportional to the needs of this case. Plaintiff has failed his burden to show otherwise. *4 Plaintiff is directed to amend his responses to Defendant's interrogatories 1, 2, 3, 5, 9, 10, 11, 13, and 14,[1] as well as Defendant's requests for production 1, 2, 3, and 4. Plaintiff is directed to produce any and all documents that are responsive to these requests and amend his responses to indicate which documents are responsive to which requests. If Plaintiff has no responsive documents, his response should so indicate.[2] The court rejects Plaintiff's argument that he need not respond to certain discovery requests as protected by attorney-client privilege. Attorney-client privilege applies only in certain instances and is waivable. See, e.g., Wellin v. Wellin, 211 F. Supp. 3d 793, 808 (D.S.C. 2016) (“It is well established that the attorney-client ‘privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.’ ”) (citing Upjohn Co. v. U.S., 449 U.S. 383, 395 (1981)). Additionally, “[i]n general, the burden of establishing the privilege rests upon the party asserting it.” Id. (citing State v. Love, 271 S.E.2d 110, 112 (S.C. 1980)). Here, Plaintiff has failed to carry his burden or indicate in any way why the information sought by Defendant is protected by attorney-client privilege. Additionally, as clarified by Defendant: To be clear, Defendant is not seeking any information or documentation protected by the attorney-client privilege as to the Arson. Plaintiff alleges Defendant failed to pay his insurance claim based on the pending arson charge, which arose out of a fire to his rental home, which he filed a Claim with Defendant. To the extent Plaintiff has any non-privileged information in his possession about such matters, these would be directly relevant to the claims and defenses of this case and discoverable under Rule 26(b)(1), Fed.R.Civ.P. [ECF No. 53 at 8]. Plaintiff is therefore directed to respond to Defendant's discovery requests, in particular interrogatories 2, 13, 14 and request for production 1. The court overrules Plaintiff's objections to these discovery requests and directs him to answer the interrogatories and requests in full with non-privileged, responsive responses and documentation. III. Conclusion For the foregoing reasons, the undersigned grants Defendant's motion to compel in full. [ECF No. 53]. Plaintiff is directed to provide complete responses to Defendant's first set of interrogatories and first request for production as outlined in this order no later than July 1, 2024. Plaintiff's failure to comply with the court's order may result in a recommendation that this case be dismissed for failure to participate in discovery and/or sanctions, including payment of Defendant's attorneys’ fees and costs in preparing its motion to compel. *5 IT IS SO ORDERED. Footnotes [1] More specifically, as to interrogatories 9, 10, and 11, Plaintiff is directed to include the date of the alleged communications with Defendant's representatives. [2] To the extent that Plaintiff asserts he is in possession of relevant, privileged documents, he is required to produce a privilege log sufficient for Defendant to assess his claim of privilege. See Fed. R. Civ. P. 26(b)(5)(a) (“When a party withholds information otherwise discoverable by claiming that the information is privileged ..., the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”).