VERONICA L. DUFFY, Magistrate Judge.
This is a Miller Act action (40 U.S.C. § 3133(b)(3)(B)), brought by the United States of America for the use and benefit of Ash Equipment Company, Inc., doing business as American Hydro ("Hydro"). Defendants are Morris, Inc. ("Morris), United Fire and Casualty Company ("UF&CC), and Red Wilk Construction, Inc. (Red Wilk). Pending before the court is a motion filed by Morris to compel Hydro to provide certain discovery.
Defendant Morris contracted with the United States Army Corps of Engineers ("the Corps") to do work on the Fort Randall Dam spillway at Pickstown, South Dakota. Morris obtained a Miller Act payment bond on the project from defendant UF&CC in the amount of $7,472,670.25. The payment bond obligated Morris and UF&CC jointly and severally to guarantee payment to any subcontractor of Morris' who furnished labor and materials on the project as well as to persons who had a direct contractual relationship with Morris on the project.
Part of the project required concrete removal using hydrodemolition methods as required by the Corps in its project plans and specifications. Morris subcontracted this work to Red Wilk, who in turn subcontracted with Hydro. Red Wilk promised to pay Hydro for Hydro's work on the project within 10 working days after Morris paid Red Wilk on monthly progress payments. Hydro brought suit after Red Wilk allegedly failed to pay for certain claims made by Hydro for completed work on the project. Hydro gave notice to Morris that it had not been paid. Hydro's first notice to Morris claims amounts unpaid of $520,135.00; its supplemental notice claimed unpaid amounts of $1,168,018.49. In its complaint, Hydro asserts a breach of contract claim against Red Wilk, an equitable claim in quantum meruit against Morris, and claim against the UF&CC bond.
Morris served Hydro with certain discovery requests on June 19, 2015.
Hydro resists the motion, arguing that the preferred method for Morris to obtain the information it seeks is (1) to serve Hydro with requests for the production of documents rather than interrogatories and (2) to take Hydro's deposition pursuant to Rule 30(b)(6) instead of seeking the information through interrogatories. Hydro also asserts Morris' discovery requests are vague and that it has already complied with many of the requests.
Before a party may make a motion to compel another party to make discovery or disclosure, the movant must certify that they have in good faith conferred or attempted to confer with the opposing party from whom the discovery or disclosure is sought in an attempt to resolve the disagreement without court intervention.
Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery in civil cases pending in federal court:
A party claiming a privilege as to requested discovery has the burden of proving the basis for the application of the privilege:
If a party fails to respond to a proper request for discovery, or if an evasive or incomplete response is made, the party requesting the discovery is entitled to move for a motion compelling disclosure after having made a good faith effort to resolve the dispute by conferring first with the other party.
The scope of discovery under Rule 26(b) is extremely broad.
"Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy . . . encompass[es] any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'"
Discoverable information itself need not be admissible at trial; rather, the defining question is whether it is within the scope of discovery.
Rule 34 of the Federal Rules of Civil Procedure governs requests for the production of documents and provides that a party may ask another party to permit copying of documents "in the responding party's possession, custody, or control."
The rule that has developed is that if a party "has the legal right to obtain the document," then the document is within that party's "control" and, thus, subject to production under Rule 34.
Merely because documents gathered by an attorney are subject to the client's control does not, however, automatically mean they are discoverable. The work product doctrine and the attorney-client privilege still apply and may be asserted in opposition to discovery, along with the appropriate privilege log. Ringling Bros., 233 F.R.D. at 211-213.
Rule 33(a)(1) of the Rules of Civil Procedure provide that, "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2)." The district court in this matter established 25 as the limit for interrogatories in this case, consistent with Rule 33.
Morris' interrogatory number nine asks Hydro to "identify all" of a list of 42 categories of documents.
Morris counters that subparts should be counted as "discrete" only when they are unrelated and where, as here, they are "logically or factually subsumed within and necessary related to the primary question," they should not be counted as separate subparts. Morris characterizes the entirety of interrogatory number nine, including its 42 subparts, as all related to seeking "the identification of documents relevant to the manner in which American Hydro is calculating its damages."
The parties accurately state the law on this issue.
Generally, the list of 42 subcategories of documents Morris wants Hydro to "identify" fall into the category of "every single piece of data that was generated in connection with this project." The list ranges from diaries, daily reports, and shop drawings to design calculations, progress photos, job meeting minutes, interviews of people connected to the job, and diagrammatic drawings.
Morris' discovery request includes a total of 23 numbered interrogatories to Hydro.
Hydro suggests that, rather than granting Morris' motion to compel an answer to interrogatory number 9, Morris should obtain the information it wants via a request for the production of documents or a Rule 30(b)(6) deposition. The court rejects this suggestion. The Rules specifically state that parties may use any discovery device in any sequence they choose.
Furthermore, the court notes that parties are required to disclose at the beginning of a case, without first receiving a request from an opposing party, documents relative to the disclosing party's calculation of damages:
Nor does the court accept Hydro's suggestion that it has already complied with interrogatory number nine. One of the documents identified in connection therewith is a contract between Hydro and an outside provider dated two years before Hydro entered into its subcontract with Red Wilk. This clearly appears not to be responsive to the discovery request or, if it is, there is a document which provides a link between the document identified and the Red Wilk subcontract and Hydro has not yet provided that link. Either way, Hydro has not fully responded to interrogatory number nine.
Finally, Hydro objects to Morris' use of the phrase "job cost," stating that the phrase means different things to different people and Morris has not provided a definition of the phrase. Hydro intimates that Morris is trying to trick Hydro by using the phrase "job cost" and then having a "gotcha" moment later. Incredibly, the court has read and re-read Interrogatory number nine including all 42 subparts several times. The exact phrase "job cost" appears only once in that discovery request.
First, the court notes that, because of the numerosity issue, the court is ordering Hydro to answer only subparagraphs (d), (hh) and (pp) of interrogatory number nine. The phrase "job cost" appears only in subparagraph (hh). That subpart asks Hydro to identify "[a]ll records of actual costs incurred in connection with the Project, including job cost accounting records, audits, and financial statements." The meaning of the phrase "job cost" appears evident to the court when read in context. If Hydro genuinely believes there is some ambiguity, it may, in its answer, define what "job cost" means to it and then answer subpart (hh). This objection is overruled.
The court grants Morris' motion in part as to interrogatory number nine. Hydro shall provide answers under oath to subparts (d), (hh) and (pp) of this interrogatory.
Morris' request for production of documents number six requests "[a]ll bid documents pertaining to the Project, including but not limited to work sheets, `take-off' sheets, and project/bid analysis, and including manhour and cost projections."
The court notes that Hydro states it provided supplemental documents on March 31, 2016, and April 8, 2016.
In order to resolve this matter, the court will order Hydro to file a statement, signed under oath by its client, or signed by its attorney as an officer of the court, stating (1) which documents it has produced are responsive to request for documents number six; (2) that it has made a duly diligent search for responsive documents in its possession, custody or control; and (3) that no further documents have been located. Specifically, Hydro is directed to include in its response whether Hydro searched for the documents and in the places identified by Hydro's president in his deposition as potentialdocuments bearing on Hydro's damages.
Morris' request for production of documents number ten requests "[a]ny report or analysis produced by any expert or outside consultant for your benefit or otherwise utilized by you or any person pertaining to this Project."
The district court's second amended Rule 16 scheduling order sets June 1, 2016, as the deadline for plaintiff Hydro to provide its expert report.
Morris' request for production of documents number eighteen requests "[a]ll comparisons, summaries, tabulations, and analyses comparing actual man hours expended on the Project with man hours originally anticipated for such work."
The court notes that Hydro states it provided supplemental documents on March 31, 2016, and April 8, 2016.
In order to resolve this matter, the court will order Hydro to file a statement, signed under oath by its client, or signed by its attorney as an officer of the court, stating (1) which documents it has produced are responsive to request for documents number eighteen; (2) that it has made a duly diligent search for responsive documents in its possession, custody or control; and (3) that no further documents have been located. Specifically, Hydro is directed to include in its response whether Hydro searched for the documents and in the places identified by Hydro's president in his deposition as potential documents bearing on Hydro's damages.
Morris' request for production of documents number twenty-three requests "[a]ll records referred to in response to the Interrogatories."
The motion to compel discovery responses filed by defendant Morris (Docket 66) is granted in part and denied in part as follows:
1. Hydro shall provide an answer under oath in conformity with FED. R. CIV. P. 33 to subparts (d), (hh), and (pp) of interrogatory number nine.
2. Hydro shall provide a statement in connection with request for production numbers six and eighteen, signed by the Hydro under oath or by Hydro's attorney as an officer of the court stating (1) which documents it has produced are responsive to request for documents number six; (2) that it has made a duly diligent search for responsive documents in its possession, custody and control; and (3) that no further documents have been located. Specifically, Hydro is directed to include in its response whether Hydro searched for the documents and in the places identified by Hydro's president in his deposition as potential documents bearing on Hydro's damages.
3. Morris' motion to compel a response to request for production number ten is denied.
4. Morris' motion to compel a response to request for production number twenty-three is granted. Hydro need not re-produce any documents already produced, but must serve Morris with a written response identifying to which interrogatories documents that have been produced are responsive. If no documents are in Hydro's possession, custody or control that answer to a particular interrogatory, Hydro must serve Morris with a response consistent with FED. R. CIV. P. 34 saying Hydro has exercised due diligence in looking for documents in its possession, custody and control described in the interrogatory and that no such documents exist.
Hydro is ordered to comply with the terms of this order within 21 days from the date of this order. Hydro's responses pursuant to this order shall be deemed timely even though it is outside the discovery deadline. Morris' ability to object to such responses, once received, shall be preserved even though outside the discovery deadline.
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration of this order before the district court upon a showing that the order is clearly erroneous or contrary to law. The parties have fourteen (14) days after service of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A), unless an extension of time for good cause is obtained.