Builders Flooring Connection, LLC v. Brown Chambless Architects, LLC et al

Filing 243

MEMORANDUM OPINION AND ORDER directing as follows: (1) the 224 MOTION to Compel is GRANTED, as further set out in order; (2) the 224 motion to compel is DENIED with respect to interrogatories #18 and 19, and requests for production #3, 12, 13 , 14, and 15; (3) the court reserves ruling on the requests for production of documents #18 and 19; the plf may file a supplemental brief addressing the discoverability of the settlement documents at issue on or before 10/3/2014; the defendant may fi le a reply brief to the plf's response on or before 10/10/2014; (4) GMC's 230 MOTION to to tender its experts for deposition be and is hereby GRANTED; the 230 motion to strike the expert witness reports be and is hereby DENIED; (5) GMC's 239 motion for an extension of time for expert disclosures and 237 motion for an extension of the Daubert and dispositive motions deadlines be and are hereby GRANTED; the deadline for expert witness disclosures is extended to 10/25/2014, and the Daubert and dispositive motions deadlines are extended to 11/21/2014; GMC's 237 motion for sanctions be and is hereby DENIED. Signed by Honorable Judge Charles S. Coody on 9/26/14. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BUILDERS FLOORING
CONNECTION, LLC,
Plaintiff,
v.
BROWN CHAMBLESS
ARCHITECTS, et al.,
Defendants.

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CIVIL ACT. NO. 2:11cv373-MHT

MEMORANDUM OPINION and ORDER
Now pending before the court are the following motions: (1) defendant Goodwyn,
Mills and Cawood, Inc’s motion to compel (doc. # 224) filed on August 20, 2014; (2)
plaintiff Builders Flooring Connection, LLC’s motion for a protective order (doc. # 228)
filed on August 28, 2014; (3) defendant Goodwyn, Mills and Cawood, Inc.’s motion to
require Plaintiff to tender its experts for depositions, or in the alternative, motion to strike
expert reports (doc. # 230) filed on September 3, 2014; (4) defendant Goodwyn, Mills and
Cawood, Inc.’s motion for an extension of expert report deadline and other deadlines and
motion for sanctions (doc. # 237) filed on September 12, 2014; and defendant Goodwyn,
Mills and Cawood, Inc.’s motion for a temporary extension of defendants’ expert deadline
(doc. # 239) filed on September 19, 2014. The court held oral argument on these motions
on September 24, 2014. For the reasons which follow, the motions are due to be granted in
part and denied in part.

In determining what discovery to allow, the court is guided by some fundamental
principles. “Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” FED.R.CIV.P.
26(b)(1). “Rule 26 . . . [(b)(1)] is highly flexible, having been designed to accommodate all
relevant interests as they arise . . . ” U. S. v. Microsoft Corp., 165 F.3d 952, 959-60 (D.C.
Cir. 1999).
Defendant Goodwin, Mills & Cawood (“GMC”) seeks to compel the plaintiff to
respond to interrogatories and requests for production of documents (doc. # 224) related the
plaintiff’s claims and damages. In Interrogatories 14 - 17, the defendant seeks the
identification of witnesses and the substance of their testimony. At oral argument, the
plaintiff agreed to produce, within fourteen days, a list identifying witnesses by name and the
substance of their testimony. The motion to compel regarding these interrogatories will be
granted.
In interrogatories 18 - 19, GMC seeks specific information regarding the plaintiff’s
damages calculations. In open court, the plaintiff affirmed that its damages calculation was
based on lost profits of 32% on each job it did not win. No further response is necessary.
Consequently, the motion to compel regarding these interrogatories will be denied.
In GMC’s Second Request for Production, it seeks James Wesson’s tax returns from
2007 to present. For the reasons stated in open court, the motion to compel production of
James Wesson’s income tax returns will be granted to the extent that the plaintiff shall

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produce amended, redacted income tax returns that show only all payments to James Wesson
from Builders Flooring Connection, LLC (“BFC”).
With respect to GMC’s requests for production # 3, 14 and 15, the plaintiff
represented to the court that it does not have the documents requested. The plaintiff cannot
produce what it does not have. The defendant also conceded that the plaintiff’s responses
to requests for production # 12 and 13 were adequate. Consequently, the motion to compel
with respect to these requests will be denied.
Request for production # 17 seeks the statements of John Stampley, George Taylor
and William Dismukes. As stated in open court, the motion to compel will be granted only
to the extent that the plaintiff shall produce information regarding who took each statement,
when each statement was taken and who else was present when each statement was taken.
The plaintiff shall produce this information within fourteen days of the date of this order.
Requests for production of documents 181 and 19 relate to settlement documents.
BFC’s motion for a protective order relates specifically to these requests. During oral
argument, BFC requested time to file a supplemental response. As stated in open court, BFC
may file a supplemental brief addressing the discoverability of the settlement documents at
issue, and GMC may file a reply to BFC’s response. The court will reserve ruling on this
aspect of the motion to compel and the motion for a protective order (doc. # 228) pending
the filing of supplemental briefs.
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During oral argument, GMC informed the court that it inadvertently failed to include
interrogatory # 18 in the motion to compel. The plaintiff did not object to the inclusion of request # 18.

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With respect to request for production # 21 and third request for production # 1, the
motion to compel will be granted. With respect to request for production # 24, the motion
to compel will be granted to the extent that Wesson shall identify the specific AIA flooring
specifications that he examined as referenced at his deposition.
Finally, GMC seeks to require BFC to tender its experts for deposition, or asks the
court to strike the expert witness reports. (Doc. # 230). The parties represented to the court
that the depositions are now scheduled for October 21 and 22, 2014. Accordingly, the
motion to tender the expert witnesses will be granted, and the motion to strike the expert
reports will be denied. However, due to the delay in tendering the expert witnesses for
deposition, GMC seeks an extension of time for expert disclosures (doc. # 239) and to file
Daubert and dispositive motions (doc. # 237), and it seeks sanctions against BFC. The
motions for extension of deadlines (doc. # 237 & 239) will be granted but the motion for
sanctions will be denied. Accordingly, for the reasons as stated, and for good cause, it is
ORDERED as follows that:
1.

The motion to compel (doc. # 224) is GRANTED as follows:
a.

With respect to interrogatories 14-17, the plaintiff shall produce, within

fourteen days of the date of this order, a list identifying a list identifying witnesses by name
and the substance of their testimony.
b.

With respect to GMC’s second request for production, the plaintiff shall

produce, within fourteen days of the date of this order, amended, redacted income tax returns

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for James Wesson that show only all payment to Wesson from Builders Flooring Connection,
LLC.
c.

With respect to GMC’s second request for production # 14, the plaintiff

shall produce, within fourteen days of the date of this order, information related to each
statement that reflects when each statement was taken, who took each statement, and who
was present when each statement was taken.
d.

With respect to GMC’s second request for production # 21 and third

request for production # 1, the plaintiff shall produce responsive documents within fourteen
days of the date of this order.
e.

With respect to request for production # 24, James Wesson shall

identify, within fourteen days of the date of this order, the specific AIA flooring
specifications he examined as referenced during his deposition.
2.

The motion to compel (doc. # 224) is DENIED with respect to interrogatories

# 18 and 19, and requests for production # 3, 12, 13, 14, and 15.
3.

The court reserves ruling on the requests for production of documents # 18 and

19. The plaintiff may file a supplemental brief addressing the discoverability of the
settlement documents at issue on or before October 3, 2014. The defendant may file a reply
brief to the plaintiff’s response on or before October 10, 2014.
4.

GMC’s motion to tender its experts for deposition (doc. # 230) be and is hereby

GRANTED. The motion to strike the expert witness reports (doc. # 230) be and is hereby

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DENIED.
5.

GMC’s motion for an extension of time for expert disclosures (doc. # 239) and

motion for an extension of the Daubert and dispositive motions deadlines (doc. # 237) be and
are hereby GRANTED. The deadline for expert witness disclosures is EXTENDED to
October 25, 2014, and the Daubert and dispositive motions deadlines are EXTENDED to
November 21, 2014. GMC’s motion for sanctions (doc. # 237) be and is hereby DENIED.
Done this 26th day of September 2014.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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