IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...

Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 9 of 23witnesses who were outside and inside Two Plus Two’s business establishment at the timeof the altercation between Appellant and Bell. With limited effort, Bell and Two PlusTwo’s owners, agents, and employees could have ascertained the identity of witnessesimmediately after the altercation. Also, Appellees would have absolute and unrestrainedaccess to evidence that may have been generated by the altercation outside the businessestablishment.Importantly, Two Plus Two failed to assiduously and diligently pursue sanctionsagainst Appellant in order to obtain answers to interrogatories Two Plus Two propoundedto Appellant. Specifically, it was not until May 2007, three-and-a-half years after TwoPlus Two served their demand for document production, that Two Plus Two mailed andfaxed a copy of its first letter to Appellant’s counsel, requesting Appellant to comply withits demand for document production. I am mindful that Two Plus Two dispatched asecond letter to Appellant’s counsel in June 2007, threatening to file a motion to dismissAppellant’s case because of his failure to prosecute. Nonetheless, on the trial recordbefore this court and under these circumstances, I find no merit to the assertion that TwoPlus Two was prejudiced by Appellant’s failure to timely comply with Appellee’sdemand for document production. There is no evidence in the trial record that Two PlusTwo incurred any costs, burdens, or losses from any efforts to obtain a court order tocompel Watts to comply with its discovery request; nor are there any other compellingfactors that constitute prejudice to Two Plus Two. See Briscoe, 538 F.3d at 259 (citingPoulis, 747 F.2d at 868). Moreover, other than a perfunctory claim of prejudice,Appellees have failed to punctiliously identify the exact nature of any prejudice theysuffered resulting from Appellant’s failure to timely answer Two Plus Two’s