UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Windham Environmental Corporation, et al.

v. Civil No. 06-cv-367-JM

United States Fidelity and

Guaranty Company

O R D E R

 Defendant moves to compel further answers to

interrogatories. Plaintiff seeks a protective order with respect

to a Rule 30(b)(6) deposition on similar issues. 

Background

At the Rule 16 scheduling conference plaintiff, with the

apparent consent of defendant, agreed to amend its complaint to a

request for a declaration of defendant’s obligation to defend

plaintiff and for payment of fees and costs to date. Plaintiff

did amend and it appeared that the issues were simplified and the

case was streamlined. Plaintiffs complain that defendant is

seeking discovery on matters not relevant to the duty to defend

issue but to indemnity matters. 

For reasons known only to defense counsel there is no

interrogatory by interrogatory discussion of or argument about

the alleged inadequacies of answers. Instead, there is a

Case 1:06-cv-00367-JM Document 34 Filed 05/31/07 Page 1 of 5
1“The district court is free to disregard arguments that are

not adequately developed.” Higgins v. New Balance Athletic Shoe,

Inc., 194 F.3d 252, 260 (1st Cir. 1999). 

2

grouping by “bullets” of a statement and lists of numbers of

discovery requests. The “bullets”, as set forth1, will be

considered in turn. 

Discussion

As defendant noted, discovery may be had of relevant, nonprivileged matters. Fed. R. Civ. P. 26(b)(1). Since neither

party has suggested otherwise, for this motion New Hampshire

substantive law is the appropriate choice of law jurisdiction. 

In a duty to defend case under New Hampshire law, the issue is

“whether the cause of action against the insured alleges

sufficient facts in the pleading to bring it within the express

terms of the policy . . . .” United States Fidelity & Guaranty

Co. v. Johnson Shoes, Inc., 123 N.H. 148, 152 (1983). What is

relevant then are the facts as pled, even if they bear no

relationship to the real facts. See id. The only other relevant

matters deal with the claim for fees and any specifically argued

affirmative defenses. 

With that background I move to the bullets. 

Bullet 1: None of the cited interrogatories or

Case 1:06-cv-00367-JM Document 34 Filed 05/31/07 Page 2 of 5
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requests directly address choice of law facts. 

Defendant has not shown or argued how they might be

indirectly relevant to choice of law. Bullet 1 is

denied. 

Bullet 2: While counsel may find this an

interesting bullet it does not list any interrogatories

or requests supposedly relevant to it. It is denied. 

Bullet 3: The only interrogatory which relates to

what is relevant to the “occurrence” is number 11. 

(Request no. 5 is also relevant but the pleading was

produced). Plaintiffs have not fully answered number

11 and are ordered to identify the language in the

Arbitration Counterclaim on which they rely. Otherwise

denied. 

Bullet 4: It is not the job of the court to

construct an argument for parties. See Kauthar SDN BHD

v. Sternberg, 149 F.3d 659, 668 (7th Cir. 1998). 

Examining thirty-six separate discovery requests and

arguing how in combination they apply to unspecified

policy provisions was counsel’s job not mine. Counsel

failed to do so and the bullet is denied. 

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Bullet 5: Denied as irrelevant. 

Bullet 6: Mooted by supplement by plaintiffs. 

Bullet 7: Mooted by supplement. 

Bullet 8: The interrogatories and requests may

be related indirectly to a statute of limitations issue

but counsel has provided no analysis or argument to

substantiate it. Denied. 

Bullet 9-10. Irrelevant. 

Bullet 11. The inadequacy of this bullet approach

as a discovery tool is seen by reading the bullet and

then reading interrogatories 2 and 3. They are not

remotely connected. Numbers 4 and 5, on the other

hand, actually do deal with relevant matters. No claim

of privilege was timely made and thus it is waived. 

Plaintiffs are ordered to provide detailed legal fee

and cost bills and to indicate which are unrelated,

which are wholly related and which are partially

related to the counterclaim. These documents are to be

subject to a protective order. 

Since the Rule 30(b)(6) motion deals with so many irrelevant

matters (see Schedule A, nos. 2, 3, 4, 5, 6, 7, 8, 9, 10 for

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5

example) the motion to quash (document no. 30) is granted. 

The motion to quash (document no. 30) is granted; the motion

to compel (document no. 24) is granted in part, moot in part and

denied in part; and the motion for leave to file reply (document

no. 29) is granted. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 31, 2007

cc: Christopher R. Blazejewski, Esq.

 Jeffrey T. Edwards, Esq.

 Eric B. Hermanson, Esq.

 Russell F. Hilliard, Esq.

 Daniel P. Luker, Esq.

 Joshua E. Menard, Esq.

 Roy T. Pierce, Esq.

 Steven A. Solomon, Esq.

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