MARTIN C. CARLSON, Magistrate Judge.
In this action, Joe Pete Wells and Les Krustoff have brought claims against JPC Equestrian, Inc. and its President and Chief Executive Officer, Varun Sharma, alleging breach of contract and tortious interference with contract. The plaintiffs allege that they had contracts with JPC to market and sell equine-related products for the company in respective four-state sales territories. The plaintiffs claim that JPC breached the terms of their sales representation agreements in a variety of ways, and that Sharma directly interfered with the plaintiffs' contracts by engaging in his own sales of goods to retail customers in the plaintiffs' sales territories without paying the plaintiffs' commissions.
Earlier this year, the Court considered and disposed of the defendants' motion to dismiss the plaintiffs' complaint. The Court granted the motion with respect to the plaintiffs' age discrimination claims set forth in Count II of the complaint, but in all other respects the motion was denied. (Doc. 20.) Now pending in the case are several interrelated motions: the plaintiffs' motion to compel discovery (Doc. 26.); defendant Varun Sharma's motion to quash a subpoena that had been served upon him seeking information from JPC's Indian operations, or for a protective order from other discovery requests seeking similar information (Doc. 28.); and finally the parties' respective motions for summary judgment on all or some of the claims in this action (Docs. 34, 38.). In this memorandum, we take up the pending motions that seek to compel the production of documents and answers to interrogatories, and Varun Sharma's competing motion seeking to prevent the plaintiffs from seeking some of that discovery through a subpoena that has been served upon him or through related document requests.
The procedural history of this litigation, which has been halting at times, is familiar to the parties and does not warrant extended discussion here. The discovery period has now closed and the defendants have filed a motion for summary judgment on the plaintiffs' claims, and the plaintiffs have filed a motion for partial summary judgment. (Docs. 34, 38.) Those motions are pending, and further litigation in this matter has been stayed pending the Court's resolution of the motions.
This matter now comes before the Court on the plaintiff's motion to compel the defendants to produce email, invoices and certain sales information, and Varun Sharma's individual tax returns, all of which the plaintiffs claim the defendants have failed to provide despite the plaintiffs' repeated requests.
For the reasons discussed briefly below, the plaintiff's motion will be granted in part and denied in part.
Under the Federal Rules of Civil Procedure, parties are permitted to engage in a broad range of discovery as part of the litigation process. Rule 26(b)(1) of those Rules provides as follows:
Fed. R. Civ. P. 26(b)(1). "[T]herefore, all relevant material is discoverable unless an applicable evidentiary privilege is asserted. The presumption that such matter is discoverable, however, is defeasible. Rule 26(c) grants federal judges the discretion to issue protective orders that impose restrictions on the extent and manner of discovery [in some instances]."
Fed. R. Civ. P. 26(c)(1). Similarly, Rule 45(d) of the Federal Rules of Civil Procedure allows a person subject to a subpoena to move to have it quashed, or otherwise protect the person from responding, if, among other reasons, the subpoena places an undue burden on the responding party or if the information sought is not within Rule 26's scope of relevance.
If a motion for a protective order is denied in whole or in part, "the court may, on just terms, order that any party or person provide or permit discovery." Fed. R. Civ. P. 26(c)(2). Matters pertaining to discovery are generally committed to the discretion of the trial court.
This discretion is guided, however, by certain basic principles. Thus, at the outset, it is clear that Rule 26's broad definition of that which can be obtained through discovery reaches only "nonprivileged matter that is relevant to any party's claim or defense". Therefore, valid claims of privilege still cabin and restrict the court's discretion in ruling on discovery issues. Furthermore, the scope of discovery permitted by Rule 26 embraces all "relevant information" a concept which is defined in the following terms: "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails that mention, or refer to the plaintiffs in any way shape or form from 2002 through 2010. The defendants have provided the plaintiff with responsive documents, but the plaintiffs believe there may be more that have not been produced. The defendants flatly dispute this assertion, and have explained the way in which they searched for responsive email in their initial disclosures and in response to the plaintiffs' discovery request.
In order to cull responsive emails, the defendants searched the email boxes assigned to Varun Sharma and Richard Knapp, JPC's Comptroller, as the two employees who "reasonably could have had communications with or about Plaintiffs regarding the subject matter of this litigation." (Doc. 32, at 9.) The plaintiffs have suggested that other email must exist, and they argue that the defendants should scour the email accounts for since-departed employees to search for responsive email. The defendants have flatly represented that these emails "do not exist." In the related action of
It is an obvious truism that a court should not enter an order compelling a party to produce documents where the documents do not exist.
Likewise, we find no basis to compel the production of other email that the plaintiffs believe must exist on computers that were once used by former employees or other personnel whom the plaintiffs believe may have been privy to email relevant to this litigation. The defendants have represented to the Court that JPC Equestrian does not maintain a central server for storing emails, and email retention for each employee is computer-specific. In layman's terms, this means that an employee's emails reside solely on an employee's respective computer, and not elsewhere within the company. The defendants have affirmatively represented that when an employee leaves JPC Equestrian, their computer is "scrubbed," and reassigned to another employee. Such is the case with two employees who Kearney believes may have had relevant emails: Nina Depetris (former Vice President), and Ron Valtos (former Comptroller). These employees left the company in 2009 and 2010 respectively, and their computers were "scrubbed" and reassigned shortly thereafter, and prior to this litigation being commenced. The defendants thus maintain that by the time this litigation commenced in February 2011, any emails residing on the computers used by Depetris or Valtos had long since been deleted from their computers, which had been reassigned.
Considering the defendants' representations regarding their initial disclosures to the plaintiffs and their responses to the plaintiffs' request for relevant emails, together with their explanation regarding the email retention system that JPC uses for its employees, we have no basis to conclude that the defendants have withheld responsive documents, or that there is any basis to compel a further response regarding potentially relevant email communication. The plaintiffs' motion to compel further production of responsive email will, therefore, be denied.
The plaintiffs have also sought to compel production of invoices of any products sold by JPC's Indian operations in the plaintiffs' alleged sales territories, and have further requested that the defendants be required to create and furnish them with lists setting forth certain sales and commission information. The defendants have opposed this request on the grounds that this request is improper because it seeks to require JPC to create documents that currently do not exist, or to provide the plaintiffs with information in a format of their choosing but which is not the format the company uses to maintain the information being sought.
The defendants also urge the Court to deny this request, and either to quash subpoenas that have been served upon Varun Sharma or issue a protective order with respect to discovery seeking sales information from JPC-India, on the grounds that the information sought relates exclusively to the plaintiffs' tortious interference claims, which the defendants insist are time-barred. The defendants refer the Court to two decisions where courts have prohibited discovery in such circumstances, and suggest that the same result should occur here. Notably, however, in the Kearney litigation, a similar dispute arose and the defendants affirmatively represented that they would be producing relevant invoices in the possession of JPC-India, and gross sales information and other documents that would be substantially responsive to Kearney's request for sales and commission figures. On the basis of this representation, we found no basis to compel further production, and instead, we required only that the defendants satisfy the representations made in their brief.
Although we acknowledge the defendants' argument in this case that the plaintiffs' tortious interference claims may fall on statute-of-limitations grounds, we do not agree that the discovery sought from JPC-India should be entirely precluded simply because some or all of these claims may fail. The information sought from JPC-India may be relevant to other claims asserted in this case, and we do not find the issue sufficiently clear at this point to absolutely foreclose the plaintiffs from discovering this information.
Lastly, the plaintiffs have requested that the Court compel Varun Sharma to produce his tax returns, which the plaintiffs believes may be relevant to the plaintiffs' claims for punitive damages. The defendants have resisted producing these materials, in part because the information sought is sensitive, personal information of little relevance to this case, and apparently in part on the grounds that they anticipate prevailing on their pending motion for summary judgment. Alternatively, the defendants suggest that the Court defer ruling on this aspect of the plaintiff's motion until after the summary judgment motions have been resolved.
We believe that denying this particular request without prejudice to its renewal strikes the appropriate balance between Sharma's reasonable interest in guarding personal financial information from discovery, while at the same time preserving the plaintiffs' opportunity to seek this information if the defendants' motion for summary judgment is ultimately denied, and the litigation proceeds on claims that may give rise to punitive damages.
Accordingly, for the reasons set forth above, the plaintiffs' motion to compel (Doc. 26) will be granted in part and denied in part as follows:
