OneSource Commercial Property Services, Inc. et al v. City and County of Denver et al

Filing 76

ORDER granting 68 Defendants City and County of Denver, Greene, Duran and Blacks Motion to Compel Plaintiffs Discovery Responses. by Magistrate Judge Kristen L. Mix on 7/6/2011. (See Order for Details)(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02273-WJM-KLM
ONESOURCE COMMERCIAL PROPERTY SERVICES, INC., a Colorado corporation, and
AFFORDABLE SWEEPING, INC., a Colorado corporation,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, a municipal corporation,
APRIL HENDERSON,
CALVIN BLACK,
KEN GREENE, and
XAVIER DURAN,
Defendants.
_____________________________________________________________________
ORDER GRANTING MOTION TO COMPEL
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants City and County of Denver,
Greene, Duran and Black’s Motion to Compel Plaintiff’s Discovery Responses
[Docket No. 68; Filed June 1, 2011] (the “Motion”). Per my prior Orders [Docket Nos. 67
& 73], Plaintiffs filed a Response on June 17, 2011 [Docket No. 70] and Defendants filed
a Reply on June 30, 2011 [Docket No. 75]. The Motion is fully briefed and ripe for
resolution. For the reasons set forth below,
IT IS HEREBY ORDERED that the Motion is GRANTED.
This matter pertains to allegations that Defendants unlawfully discriminated against
Plaintiffs based upon race and gender in connection with contracts to provide cleaning
services at Denver International Airport, in violation of 42 U.S.C. §§ 1981, 1983, 1988 &
2000d (Title VI). See Scheduling Order [#65] at 2-3. Defendants deny that they committed

any conduct that amounts to a legally cognizable constitutional or Title VI violation. Id. at
3-6. Plaintiffs are seeking damages for lost income and profits. Id. at 6.
The Motion relates to discovery propounded in April 2011 by Defendants.
Specifically, Defendants City & County of Denver, Ken Greene and Xavier Duran
propounded their First Set of Written Discovery Requests (“Defendants’ Requests”) on April
13, 2011 [Docket No. 68-1].

Defendant Calvin Black propounded his First Set of

Interrogatories and Requests for Production of Documents (“Black’s Requests”) on April
21, 2011 [Docket No. 68-2]. Plaintiffs have not responded to the interrogatories nor
produced any responsive documents. When contacted by Defendants, Plaintiffs indicated
that responding to the discovery requests would be unduly burdensome, but they do not
appear to have sent formal objections to any of the requests at issue. This Motion
followed.
Defendants seek an order compelling Plaintiffs to produce information and
documents in response to their outstanding discovery requests. Plaintiffs’ responses were
due on May 16, 2011 and May 24, 2011, respectively. In addition to raising an issue
relating to the overdue status of Plaintiffs’ responses, Defendants contend that Plaintiffs’
failure to timely respond interferes “with the smooth progression of discovery in this case,”
including the taking of depositions. Motion [#68] at 4. Defendants also seek an award of
expenses incurred in prosecuting the Motion. Id. at 6.
In Response, Plaintiffs allege that they have “never refused to provide the
information sought.” Response [#70] at 1. Rather, they contend that they were under the
impression that counsel were working toward a compromise about the cost of responding
prior to the submission of their responses. Id. Plaintiffs also contend that because
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responding to the discovery would require “over 200 hours for small business people,
providing cleaning services, to respond,” and would require them to hire temporary clerical
staff at an estimated cost of $4500 for labor and copies, the requests are unduly
burdensome. Id. at 2, 9. Plaintiffs attach an affidavit from an agent and a spreadsheet to
support their contention regarding the amount of time and expense it would take to respond
[Docket No. 70-1]. While Plaintiffs raise specific objections to certain discovery requests
(e.g., Defendants’ Requests – Interrogatory Nos. 3, 4 & 5 and Requests for Production
Nos. 3 & 4; Black’s Requests for Production No. 3), they fail to specifically object to any of
the other unanswered requests at issue here.1
In their Reply, Defendants note that “[t]he parties’ dispute boils down to whether
Defendants’ discovery requests are unduly burdensome to the extent that Plaintiffs should
be excused from responding to any discovery.” Reply [#75] at 2. They argue that Plaintiffs
have failed to meet their burden of establishing that the discovery requests are unduly
burdensome because “Plaintiffs’ reasoning that they are ‘small business people’ provides
no persuasive basis for excusing them from complying with the rules of civil procedure in
a case they voluntarily initiated.” Id. at 5.
Generally, the test for allowing discovery of information or documents is whether the
information “is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). This is

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Given that Plaintiffs failed to timely respond to the discovery requests, they have
arguably waived objections to any of the discovery requests not specifically referenced in their
Response. Fed. R. Civ. P. 33(b)(4), 34(b) & 37(a)(B)(iii), (iv); see Cardenas v. Dorel Juvenile
Group, Inc., 232 F.R.D. 377, 380 n.15(D. Kan. 2005); see also Cartel Asset Mgmt. v. Ocwen
Finan. Corp., No. 01-cv-01644-REB-CBS, 2010 WL 502721, at *10 (D. Colo. Feb. 8, 2010)
(unpublished decision) (noting that “[o]bjections to discovery must be made with specificity, and
the responding party has the obligation to explain and support its objections”).

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a deliberately broad standard which is meant to allow the parties to discover the information
necessary to prove or disprove their cases. Gomez v. Martin Marietta Corp., 50 F.3d 1511,
1520 (10th Cir. 1995); Simpson v. Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo. 2004);
Cardenas, 232 F.R.D. at 382 (“Relevancy is broadly construed, and a request for discovery
should be considered relevant if there is ‘any possibility’ that the information sought may
be relevant to the claim or defense of any party.” (citations omitted)). If the material sought
is relevant to the case and may lead to admissible evidence, it should generally be
produced. However, where the burden of producing relevant discovery outweighs the
likely benefit, the Court has discretion to limit the discovery requested. Fed. R. Civ. P.
26(b)(2)(C); see Qwest Commc’ns Int’l v. Worldquest Networks, Inc., 213 F.R.D. 418, 419
(D. Colo. 2003).
Here, Plaintiffs have the burden to show that responding to the discovery requests
at issue would be unduly burdensome. Klesch & Co. v. Liberty Media Corp., 217 F.R.D.
517, 524 (D. Colo. 2003); see also Schartz v. Unified Sch. Dist. No. 512, No. 95-2491-EEO,
1996 WL 741384, at *2 (D. Kan. Dec. 18, 1996) (unpublished decision) (“Discovery, by its
very nature, is inherently burdensome to some extent. The question, however, is whether
the discovery unduly burdens . . . .”). This burden can only be met by providing sufficient
details or “a compelling showing of undue burden” to obviate the overwhelming preference
for requiring that relevant discovery materials be exchanged. Cartel, 2010 WL 502721, at
*15 (citing cases). Plaintiffs have failed to carry their burden for the following reasons.
As a preliminary matter, many of Plaintiffs’ contentions are unsupported by legal
citation or are insufficient on their face. For example, to the extent that Plaintiffs argue that
they have already produced some of the documents requested, they fail to explain why they
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cannot refer to already produced documents by Bate numbers instead of producing the
documents again to alleviate some of their purported burden.

Further, Plaintiffs’

unsupported argument that they should not be required to produce materials they suspect
that Defendants already possess is rejected. Defendants are entitled to see the documents
and information Plaintiffs possess, even though both parties may possess some or all of
the requested documents (like invoices) and information (like names of Plaintiffs’
employees). Without a sufficient showing that Plaintiffs’ production would be “unreasonably
cumulative,” Plaintiffs cannot avoid their obligation to respond. See Fed. R. Civ. P.
26(b)(2)(C)(i). Moreover, Plaintiffs’ argument that they have been improperly asked to
compile and summarize responsive data is incorrect. The discovery requests at issue do
not so request, and Plaintiffs can instead produce documents or information pursuant to
Fed. R. Civ. P. 33(d).
Next, Plaintiffs have failed to show that they have undertaken any steps to identify
responsive documents. Instead, Plaintiffs appear to have simply thrown up their hands at
the prospect of responding to the discovery requests, as if doing so would be like searching
for a needle in a haystack. To this end, Plaintiffs have failed to describe the alleged
haystack, failed to describe any search efforts undertaken thus far and failed to adequately
describe the results of any search efforts undertaken thus far. See, e.g., Response [#70]
at 11-12 (raising objection to Defendants’ use of term “relating to,” but failing to explain how
in the context of the request the term amounts to an unduly burdensome request given the
type of documents and information at issue). Moreover, Plaintiffs have failed to adequately
raise a challenge related to the relevance of the information sought by Defendants. See,
e.g., id. at 10 (raising vague and unsubstantiated objection to relevance). In other words,
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what Plaintiffs perceive as a “needle in a haystack” is actually the building blocks of their
case in an unspecified pile of construction material. Their failure to successfully challenge
the relevance of the building blocks undermines their contention that lifting them out of the
pile would be unduly burdensome.
Next, and most importantly, Plaintiffs fail to provide sufficient information to justify
their time and expense estimates. For example, they have not explained what document
storage systems they use, whether documents are kept in hard copies, where and in what
containers documents are stored, how many business documents they possess, whether
any documents are kept on computers, whether they have computer archives, whether they
can search electronically for documents, and whether documents have been erased or
modified.
In addition, Plaintiffs’ time estimates to respond to the discovery requests are utterly
lacking in justification. The affidavit fails to explain why it will take Plaintiffs nine hours to
identify their lost income, profits and damage to reputation. Nor does it explain why it will
take Plaintiffs four hours to state their attempts to mitigate any damages. Plaintiffs’
conclusory allegations leave the Court in the position of speculating, and that I cannot do.
Cartel, 2010 WL 502721, at *16 (“The benefits of Rule 26(b)(2)(B) cannot be invoked on
mere speculation or unsubstantiated assumptions.”).

Here, the submission of an

undetailed affidavit and spreadsheet, neither of which provide a persuasive basis for the
purported estimates, are insufficient. See, e.g., Medcorp, Inc. v. Pinpoint Techs., Inc., 08cv-00867-MSK-KLM, 2009 WL 1049758, at *2-3 (D. Colo. Apr. 20, 2009) (citations omitted)
(recognizing that unsubstantiated estimates of counsel do not meet objecting party’s
burden even where the discovery requests admittedly require some compilation and
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burden).
Finally, although Plaintiffs state that they “never refused to provide the information
sought,” see Response [#70] at 1, as noted above, Plaintiffs failed to submit timely
responses to the requests at issue. See Fed. R. Civ. P. 33(b) & 34(b) (imposing a duty to
respond to discovery that is not objectionable). Moreover, in response to the Motion,
Plaintiffs failed to raise specific challenges to every discovery request, thus failing to specify
what is objectionable about each. First, this is an inappropriate and ineffectual way to
challenge discovery requests. See, e.g., Sonninno v. Univ. of Kan. Hosp. Auth., 221 F.R.D.
661, 670-71 (D. Kan. 2004) (“When a party files a motion to compel and asks the Court to
overrule certain objections, the objecting party must specifically show in its response to the
motion to compel, despite the broad and liberal construction afforded by the federal
discovery rules, how each request for production or interrogatory is objectionable.”).
Second, Plaintiffs’ discovery tactics created inevitable delay in a lawsuit that they voluntarily
chose to file and which they have an obligation to duly prosecute.

Responding to

appropriate discovery requests, and doing so in a timely fashion, are part of Plaintiffs’ duty
to prosecute their case. Accordingly, the Motion is granted and Plaintiffs are compelled
to respond to the discovery requests at issue without objection.2
IT IS FURTHER ORDERED that Plaintiffs must respond to Defendants City &

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To ease Plaintiffs’ purported burden, Defendants propose that the Court order Plaintiffs
to produce responsive materials after Defendants respond to Plaintiffs’ discovery requests on
July 6, 2011, because Defendants intend to produce “all their internal files related to Plaintiffs.”
Reply [#75] at 4. As a practical matter, Plaintiffs’ objections to the discovery requests at issue
have ensured that Plaintiffs will not respond until after Defendants have responded to Plaintiffs’
outstanding discovery requests. While Plaintiffs may take advantage of Defendants’ responses
if they so choose (to avoid the production of unreasonably cumulative materials), they must
nevertheless do so within the deadline set by the Court.

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County of Denver, Greene and Duran’s First Set of Written Discovery Requests and
Defendant Black’s First Set of Interrogatories and Requests for Production of Documents,
in full, on or before July 22, 2011.
IT IS FURTHER ORDERED that, pursuant to Fed. R. Civ. P. 37(a)(5)(A),
Defendants are entitled to an award of their reasonable costs and fees incurred to
adjudicate the Motion.3 Plaintiffs’ unjustified discovery strategy has caused unnecessary
delay in the production of relevant discovery materials, as well as in the ordinary discovery
process in the case.

See Cartel, 2010 WL 502721, at *18, 20 (“Although counsel

disclaimed any intention to withhold relevant discovery, . . . [her refusal to produce
discovery] based upon a factual showing that was patently deficient under any reasonable
application,” justifies an award of expenses). To this end,
IT IS FURTHER ORDERED that, on or before July 25, 2011, Defendants shall file
affidavits and information in compliance with D.C.COLO.LCivR 54.3 regarding the
“reasonable expenses incurred in making the [M]otion, including attorney’s fees.” Fed. R.
Civ. P. 37(a)(5)(A). No motion shall be necessary. Plaintiffs shall file a response, if any,
within ten (10) days of Defendants’ submissions. No reply shall be permitted.
Dated: July 6, 2011
BY THE COURT:

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An award is authorized after affording the affected party the opportunity to be heard.
See Fed. R. Civ. P. 37(a)(5)(A). Plaintiffs had that opportunity in responding to the Motion,
which clearly requested such an award. See Cardenas, 232 F.R.D. at 388 n.42. Here, I find
that Plaintiffs’ general objections are not substantially justified. Moreover, Defendants
adequately conferred in advance of filing the Motion and Plaintiffs have failed to raise any issue
which makes an award of expenses unjust. Nevertheless, Plaintiffs are permitted to object to
the reasonableness of the amount of fees sought by Defendants as set forth above.

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s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

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