UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

___________________________________________

LINDA HUDSON :

and :

STEPHANIE HUDSON :

Plaintiffs :

v. :

:

WILIBERTO GONZALEZ : DOCKET NO.: 02-4365

& :

DOLLAR RENT A CAR SYSTEMS, INC. :

& :

RENTAL CAR FINANCE CORP. :

Defendants :

__________________________________________:

PLAINTIFFS’ NOTICE OF MOTION TO

STRIKE/COMPEL DISCOVERY RESPONSES DIRECTED

 TO DEFENDANTS, PURSUANT TO F.R.C.P.37

To: Joseph Goldberg, Esquire

Margolis Edelstein

The Curtis Center, 4th Floor

Independence Square West

Philadelphia, PA 19106

PLEASE TAKE NOTICE THAT, Plaintiffs, Linda Hudson and Stephanie Hudson, will

make application to the United States District Court for the Eastern District of Pennsylvania for

an Order striking Defendant Wiliberto Gonzalez’s discovery responses and to compel production

of a written statement and compelling Defendant Dollar Rent A Car Systems, Inc. to provide full,

verified and complete responses to discovery requests from Plaintiffs Linda Hudson and

Stephanie Hudson. A Motion, Memorandum of Law, and proposed Order are attached hereto.

FRANK & ROSEN

By: 

ALEXANDER J. PALAMARCHUK

DANIEL L. MOSS

Attorneys for Plaintiffs 

DATED: December 13, 2002

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 1 of 14
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

___________________________________________

LINDA HUDSON :

and :

STEPHANIE HUDSON :

Plaintiffs :

v. :

:

WILIBERTO GONZALEZ : DOCKET NO.: 02-4365

& :

DOLLAR RENT A CAR SYSTEMS, INC. :

& :

RENTAL CAR FINANCE CORP. :

Defendants :

__________________________________________:

ORDER

AND NOW, this day of , 2002, upon consideration of Plaintiffs’, Linda

Hudson and Stephanie Hudson, Motion to Compel, it is hereby ORDERED that said Motion is

GRANTED; and further

The unverified answers to Interrogatories provided by Defendant Wiliberto Gonzalez

shall hereby be stricken and Defendant Gonzalez is precluded from presenting evidence at trial

concerning the matters that are the subject of the aforesaid answers; and further, 

Defendant Wiliberto Gonzalez shall produce the written statement made on or about

March 29, 2002 identified by him in his answers to Interrogatories; and further; 

 Defendant Dollar Rent A Car Systems, Inc. shall produce full, verified and complete

responses to discovery requests including answers to Interrogatories and responses to Requests

for Production of Documents from Plaintiffs within ten (10) days of the date of this Order. 

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 2 of 14
Defendants are further Ordered that failure to produce said discovery will result in

Defendants’ being precluded from presenting evidence at the time of trial, concerning the matters

that are the subject of Plaintiffs’ discovery requests.

 

J.

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 3 of 14
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

___________________________________________

LINDA HUDSON :

and :

STEPHANIE HUDSON :

Plaintiffs :

v. :

:

WILIBERTO GONZALEZ : DOCKET NO.: 02-4365

& :

DOLLAR RENT A CAR SYSTEMS, INC. :

& :

RENTAL CAR FINANCE CORP. :

Defendants :

__________________________________________:

PLAINTIFFS’ MOTION TO COMPEL DISCOVERY 

RESPONSES DIRECTED TO DEFENDANTS PURSUANT TO F.R.C.P. 37

Plaintiffs, Linda Hudson and Stephanie Hudson, (hereinafter “Plaintiffs”), by and 

though their attorneys, Frank & Rosen, hereby move this Honorable Court pursuant to Federal

Rule of Civil Procedure 37(a) for an Order compelling Defendants to produce discovery

responses. In support thereof, Plaintiffs allege the following:

1. On or about August 26, 2002, Plaintiffs served Interrogatories and Request for Production

of Documents upon Defendant Wiliberto Gonzalez. A true and correct copy of Plaintiffs’

Interrogatories and Requests for Production of Documents are attached hereto and

incorporated herein as Exhibit “A” and Exhibit “B.” 

2. On or about October 2, 2002, Plaintiffs’ counsel sent a letter to counsel for Defendant

seeking the “status” of the responses, which were then overdue. A true and correct copy

of the October 2, 2002 correspondence is attached hereto and incorporated herein as

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 4 of 14
Exhibit “C.”

3. Subsequently, on or about November 4, 2002, Plaintiffs received incomplete responses to

discovery requests from Defendant Gonzalez. A true and correct copy of Defendant

Gonzalez’s Response is attached hereto and incorporated herein as Exhibit “D.” 

4. Specifically, Plaintiffs only received answers to the Interrogatories with copies of certain

documents attached. 

5. Moreover, the answers to Interrogatories were not verified by Defendant Gonzalez, but

were signed off by Defendant’s counsel. 

6. Thereafter, notwithstanding Defendant’s counsel’s indication that Defendant’s

verification would be provided and despite a further request by Plaintiff in a letter sent to

defense counsel on November 11, 2002, Defendant Gonzalez’s verification has not been

provided. A true and correct copy of the November 11, 2002 letter is attached hereto and

incorporated herein as Exhibit “E.”

7. Additionally, Plaintiffs have never received a written response to their Request for

Production of Documents addressed to Defendant Gonzalez. However, in responding to

Interrogatory Number 30, Defendant Gonzalez identified a written statement made by

him on March 29, 2002 concerning the subject matter of this civil action.

8. Specifically, Plaintiffs’ Interrogatory inquired as follows:

Do you, or anyone on behalf of the Defendant, Wiliberto Gonzalez have a signed written

statement, mechanically transcribed statement or a recorded statement? If so, state the

type of statement, date of the statement and the name, address and employer of the

present custodian of the statement at the present time. (Ex. A at ¶ 30).

9. Defendant Gonzalez responded by stating: 

Yes, written statement given on 3/29/02. Statement is in the custody of defense

counsel. (Ex. C at ¶ 30).

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 5 of 14
10. Moreover, Plaintiffs’ Request for Production of Documents sought

Any and all statements concerning the above captioned action or its subject matter

previously made by the party(ies) to whom this request is directed, or by the

party(ies) by whom this request is made, or by any other party(ies) or any

witness(es), including any and all written statements, as well as any and all

stenographic, mechanical, electrical and/or other recordings or transcriptions

which are substantially verbatim recitals of any and all oral statements by the

person(s) making the said statement(s), and contemporaneously recorded

(Ex. B at ¶ 1).

11. On or about November 19, 2002, Plaintiffs’ counsel requested a copy of the aforesaid

written statement made by Defendant Gonzalez. A true and correct copy of the November

19, 2002 correspondence is attached hereto and incorporated herein as Exhibit “F.” 

12. Defendant Gonzalez’s counsel responded by claiming that the statement made on March

29, 2002 is not discoverable under the Federal Rules of Civil Procedure, but did not state a

specific basis for that contention. A true and correct copy of the November 26, 2002

correspondence from counsel is attached hereto and incorporated herein as Exhibit “G.”

13. As of this date and despite multiple attempts to resolve this dispute by Plaintiffs’ counsel,

Defendant Gonzalez has failed to produce the aforesaid written statement made by him on

March 29, 2002.

14. Additionally, to date, Plaintiffs have not received verified answers to Interrogatories, the

aforesaid statement, or a response to the Request for Production of Document.

15. Plaintiffs contend that pursuant to F.R.C.P. 26(b)(3), Plaintiffs are entitled to the aforesaid

statement previously made by the Defendant Gonzalez, which concerns the current action

and/or its subject matter. Moreover, by failing to respond in a timely manner, as provided

in F.R.C.P. 33(b)(3) and F.R.C.P. 34(b), and failing to object in a timely manner, pursuant

to F.R.C.P. 33(b)(4), Defendant Gonzalez has waived his right to pose any objection to

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 6 of 14
Plaintiffs’ request to produce the aforesaid statement.

16. Additionally, Plaintiffs are also entitled to receive Defendant Gonzalez’s verified answers

to Interrogatories and responses to Requests for Production of Documents.

17. Additionally, Plaintiffs on or about September 19, 2002, also served Interrogatories and

Request for Production of Documents upon Defendant Dollar Rent A Car Systems, Inc. A

true and correct copy of the Interrogatories and Request for Production of Documents

propounded on Dollar Rent A Car Systems, Inc. are attached hereto and incorporated

herein as Exhibit “H.”

18. Plaintiffs have not received any Response to the Interrogatories or to the Request for

Production of Documents from the Defendant Dollar Rent A Car Systems, Inc. 

19. On October 9, 2002, at the conclusion of Plaintiff Linda Hudson’s deposition, Plaintiffs’

counsel reminded Defendants’ counsel of the outstanding discovery responses. 

20. At that time, Defendants’ counsel stated that the responses to the discovery requests

propounded on Defendant Dollar Rent A Car Systems, Inc. would be provided prior to the

deposition of Plaintiff Stephanie Hudson on November 20, 2002. A true and correct copy

of the transcript pages are attached hereto and incorporated herein as Exhibit “I.” 

21. Defendant Dollar Rent A Car Systems, Inc. did not produce the aforesaid discovery

responses prior to Stephanie Hudson’s deposition and to date, Defendant Dollar Rent A

Car Systems, Inc. has not provided any answers to Interrogatories or responses to the 

Request for Production of Documents. 

22. Prior to the filing of this Motion, Plaintiffs’ counsel has made repeated attempts, including

on November 21, 2002, to obtain the aforesaid discovery from both Defendants. A true

and correct copy of the correspondence is attached hereto and incorporated herein as

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 7 of 14
Exhibit “J.”

23. As of this date, none of the discovery sought in this Motion has been produced.

WHEREFORE, Plaintiffs, Linda Hudson and Stephanie Hudson, respectfully request

from this Court an Order striking the unverified answers to Interrogatories provided on behalf of

Wiliberto Gonzalez on November 4, 2002, precluding Defendant Gonzalez from presenting any

evidence at trial concerning the matters addressed in the aforesaid answers to Interrogatories, 

requiring the Defendant Wiliberto Gonzalez to produce the written statement made on March 29,

2002 by Defendant Gonzalez, and for Defendant Dollar Rent A Car Systems, Inc. to produce

responses to the discovery requests propounded upon it on September 19, 2002, or be precluded

from presenting any defenses at trial.

FRANK & ROSEN

BY: 

ALEXANDER J. PALAMARCHUK

DANIEL L. MOSS

Attorneys for Plaintiffs 

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 8 of 14
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

___________________________________________

LINDA HUDSON :

and :

STEPHANIE HUDSON :

Plaintiffs :

v. :

:

WILIBERTO GONZALEZ : DOCKET NO.: 02-4365

& :

DOLLAR RENT A CAR SYSTEMS, INC. :

& :

RENTAL CAR FINANCE CORP. :

Defendants :

__________________________________________:

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT 

OF MOTION TO COMPEL DISCOVERY 

RESPONSES DIRECTED TO DEFENDANTS

Plaintiffs, Linda Hudson and Stephanie Hudson, (herein “Plaintiffs”), by and through their

attorneys, Frank & Rosen, hereby submit the following Memorandum of Law in support of their

Motion to Compel Defendants Wiliberto Gonzalez and Dollar Rent A Car Systems, Inc. to

produce discovery requests pursuant to Federal Rule of Civil Procedure 37 (a).

BRIEF STATEMENT OF FACTS

Plaintiffs, Linda Hudson and Stephanie Hudson, (herein “Plaintiffs”) filed this civil action

on or about July 1, 2002. This action arose due to severe, disabling injuries the Plaintiffs

sustained in a motor vehicle accident on December 31, 2001. During discovery, Plaintiffs served

Interrogatories and a Request for Production of Documents upon Defendant Wiliberto Gonzalez

(hereinafter Gonzalez). See Exhibits A and B. On or about October 2, 2002, Plaintiffs’ counsel

sent a letter to counsel for Defendants seeking the “status” of the responses, which were then

overdue. See Exhibit C. Subsequently, on or about November 4, 2002, Plaintiffs received

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 9 of 14
Defendant Gonzalez’s Response to Interrogatories, however, the Defendant’s verification was not

attached. See Exhibit D. Defendant’s counsel indicated that Defendant Gonzalez’s verification

would be provided but to date, no such verification has been received by Plaintiffs, despite a

follow-up reminder letter sent to Defense counsel on November 11, 2002. See Exhibit E. 

After reviewing Defendant’s response to Interrogatories, Plaintiffs learned that Defendant

Gonzalez had made a written statement on or about March 29, 2002. Plaintiffs discovered this

information from their Interrogatory request that inquired as stated:

Do you, or anyone on behalf of the Defendant, Wiliberto Gonzalez have a

signed written statement, mechanically transcribed statement or a recorded

statement? If so, state the type of statement, date of the statement and the

name, address and employer of the present custodian of the statement at the

present time. (Ex. A at ¶ 30). 

Defendant’s response was as follows: 

Yes, written statement given on 3/29/02. Statement is in the custody of defense

counsel. (Ex. D at ¶ 30).

Plaintiffs’ also Requested from the Defendant in their Request for the Production of Documents

the following:

Any and all statements concerning the above captioned action or its subject matter

previously made by the party(ies) to whom this request is directed, or by the

party(ies) by whom this request is made, or by any other party(ies) or any

witness(es), including any and all written statements, as well as any and all

stenographic, mechanical, electrical and/or other recordings or transcriptions which

are substantially verbatim recitals of any and all oral statements by the person(s)

making the said statement(s), and contemporaneously recorded

(Ex. B at ¶ 1).

Plaintiffs have not yet received any objections or responses to their Request for Production

of Documents addressed to Defendant Gonzalez. Notwithstanding, on or about November 19,

2002, Plaintiffs’ counsel requested a copy of the written statement made by Defendant Gonzalez

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 10 of 14
prior to suit being filed in this matter. See Exhibit F. Defendant’s counsel responded by claiming

that the statement made on March 29, 2002 is not discoverable, but does not state a basis for this

broad statement. See Exhibit G.

Moreover, Plaintiffs have not received responses to any of the discovery propounded upon

the Defendant Dollar Rent A Car Systems, Inc. Plaintiff was informed on October 9, 2002 that

said responses would be forthcoming, but Plaintiffs have yet to receive discovery responses from

Dollar Rent A Car Systems, Inc.

LEGAL ARGUMENT

Plaintiffs were entitled to complete and timely discovery responses from Defendant

Wiliberto Gonzalez, including verified answers to interrogatories and a statement identified that

was made on March 29, 2002, which apparently concerns the current action and/or its subject

matter of this civil action. F.R.C.P. 26(b)(3). Plaintiffs are also entitled to full and complete

discovery responses from Defendant Dollar Rent A Car Systems, Inc.

Defendant Wiliberto Gonzalez, by failing to respond to discovery requests in a timely

manner, as provided in F.R.C.P. 33(b)(3), and failing to object in a timely manner, pursuant to

F.R.C.P. 33(b)(4), Defendant has waived his right to any objections related to the requests and to

assert the evidence at trial concerning the matters contained in the unverified answers to

interrogatories.

Specifically, Defendant Gonzalez failed to supply timely verified responses to written

discovery requests and failed to object to the production of the written statement. Therefore,

Defendant Gonzalez has waived his right to object to the production of the written statement made

on March 29, 2002, as well as ton assert any of the other evidence asserted in his unverified

discovery responses.

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 11 of 14
As this Court is well aware, “[t]he failure to object to a discovery request in a timely

fashion may constitute a waiver of the objection.” Rintchen v. Walker, 1996 U.S. Dist. LEXIS

6104 (E.D. Pa. May 7, 1996). The Defendant has failed to comply with the Federal discovery

rules on a variety of levels. First, Plaintiffs have yet to receive a verification from Defendant

Gonzalez relating to the factual statements made in his Interrogatories. Second, Defendant

Gonzalez has failed to provide timely objections and/or responses to the Request for Production

of Documents. Third, Defendant Gonzalez makes a broad assertion that the statement made by

the Defendant is not discoverable, but provides no basis for this assertion.

As such, Plaintiffs clearly are entitled to the statement on the basis that it was not

privileged and was apparently prepared in the course of the investigation of this incident and is

therefore discoverable under the Federal Rules of Civil Procedure. See, Rintchen, supra at *5-8. 

Moreover, Plaintiffs have sought discovery from Defendant Dollar Rent A Car Systems,

Inc. Defendant Dollar Rent A Car Systems, Inc. has not provided any documents or responses to

Interrogatories, despite reasonable attempts by Plaintiffs’ counsel to secure those responses. 

Therefore, Defendant Dollar has waived its right to object to the discovery requests and should

now produce full verified answers to the Interrogatories and Request for Production of

Documents.

CONCLUSION

For the foregoing reasons, Plaintiffs, Linda Hudson and Stephanie Hudson, respectfully

request from this Court an Order striking Defendant Wiliberto Gonzalez’s unverified answers to

Interrogatories and to produce the written statement made on March 29, 2002. Additionally,

Plaintiffs seek full verified and complete responses to the Discovery requests propounded upon

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 12 of 14
Defendant Dollar Rent A Car Systems, Inc.

Respectfully submitted,

FRANK & ROSEN

BY:: 

 ALEXANDER J. PALAMARCHUK

 DANIEL L. MOSS

1835 Market Street, Suite 320

Philadelphia, PA 19103

 Attorneys for Plaintiffs 

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 13 of 14
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

___________________________________________

LINDA HUDSON :

and :

STEPHANIE HUDSON :

Plaintiffs :

v. :

:

WILIBERTO GONZALEZ : DOCKET NO.: 02-4365

& :

DOLLAR RENT A CAR SYSTEMS, INC. :

& :

RENTAL CAR FINANCE CORP. :

Defendants :

__________________________________________:

CERTIFICATE OF GOOD FAITH EFFORT

I, Alexander J. Palamarchuk, Esquire hereby certify that I have attempted in good faith to

resolve this discovery dispute with counsel for Defendants Wiliberto Gonzalez and Dollar Rent A

Car Systems, Inc.and after reasonable effort, this dispute is unable to be resolved. 

FRANK & ROSEN

BY:: 

 ALEXANDER J. PALAMARCHUK

 DANIEL L. MOSS

1835 Market Street, Suite 320

Philadelphia, PA 19103

 Attorneys for Plaintiffs 

DATED: December 13, 2002 

Case 2:02-cv-04365-MAM Document 11 Filed 12/13/2002 Page 14 of 14