Boulter v. Greenauer Design Group, Inc.
Filing
51
ORDER granting 37 Plaintiff's Motion to Compel Production of Discovery Requests, as set forth in the Order, by Magistrate Judge Michael J. Watanabe on 11/18/2014.(emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00204-MSK-MJW
HARVEY BOULTER
(a Dubai, United Arab Emirates, Resident),
Plaintiff,
v.
GREENAUER DESIGN GROUP, INC., a Colorado corporation,
Defendant.
_____________________________________________________________________
ORDER REGARDING
PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DISCOVERY REQUESTS
(DOCKET NO. 37)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Plaintiff’s Motion to Compel Production of
Discovery Requests (docket no. 37). The court has reviewed the subject motion
(docket no. 37), the response (docket no. 43), and the reply (docket no. 50). In addition,
the court has taken judicial notice of the court’s file and has considered applicable
Federal Rules of Civil Procedure and case law. The court now being fully informed
makes the following findings of fact, conclusions of law, and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.
That I have jurisdiction over the subject matter and over the parties
to this lawsuit;
2
2.
That venue is proper in the state and District of Colorado;
3.
That each party has been given a fair and adequate opportunity to
be heard;
4.
That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines
the scope of discovery as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the
identity and location of persons who know of any
discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject
matter involved in the action. Relevant information
need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is
subject to the limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain
discovery of ‘any matter, not privileged, that is relevant to the claim
or defense of a party’ . . . may be constrained where the court
determines that the desired discovery is unreasonable or unduly
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burdensome given the needs of the case, the importance of the
issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Simpson v. University of Colo.,
220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil
Procedure permit a court to restrict or preclude discovery when
justice requires in order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense. . . .” Id. See Fed. R. Civ. P. 26(b) and (c);
5.
Pursuant to Fed. R. Civ. P. 37(A)(3)(B), “[a] party seeking discovery
may move for an order compelling an answer, designation,
production, or inspection . . . .”;
6.
That in the subject motion (docket no. 37), Plaintiff seeks an Order
from this court directing Defendant to respond fully to Plaintiff’s
Request for Production of Documents (“RFP”) numbered 1, 3, 5, 6,
7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24
relating to the production of GDG business records, and to compel
answers to Interrogatories (“ROG”) numbered 3, 4, 6, 9, and 10;
7.
That Defendant objects to the above RFPs and ROGs on the
grounds that: (1) the requests seek information that is irrelevant,
unduly burdensome, and not calculated to lead to discovery of
admissible evidence; (2) the information sought constitutes “trade
secrets” and privileged documents that Defendant refuses to
disclose, and (3) some of the information sought is equally
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available to both parties;
8.
That Defendant’s specific objections to RFPs 1 and 3-24, inclusive,
and interrogatories 3, 4, 9 and 10 on the grounds that such
discovery requests are irrelevant and overly burdensome are
overruled;
9.
That Defendant’s additional objection that RFPs 1, 5, 7, 8,
11,12,13, 21, and 24 and interrogatory 6 contain “proprietary and
trade secret information” as defined in § 7-74-102, C.R.S., is
overruled, noting that this court has previously entered a Protective
Order (docket no. 31) which safeguards against any unwarranted
disclosure of trade secrets in this court’s discretion. See Centurion
Indus., Inc. v. Warren Steurer & Associates, 665 F.2d 323, 326
(10th Cir. 1981);
10.
That Defendant’s objection as to RFPs 3, 11, 12, 13, and 23 that
such information is equally available to both parties is overruled.
See Cook v. Rockwell International Corp., 161 F.R.D. 103 (D. Colo.
1995);
11.
That Defendant has filed an Affidavit of Melissa Greenauer in
Support of Greenauer Design Group, Inc.’s Response to Plaintiff’s
Motion to Compel Production of Discovery Requests (docket no.
43-1). Paragraphs 15, 16, 17, 18 ,19, 20, 21, and 22 of Ms.
Greenauer’s Affidavit outlines why Defendant believes that it has
fully responded to the disputed discovery requests listed above.
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•
15.
After Completion of the work at Plaintiff’s
residence and over the course of the past
eighteen months, GDG experienced a server
outage that caused the loss of nearly all
electronically stored information related to
GDG’s work. As a financial decision GDG
chose to purchase a new server, rather than
expend funds in an attempt to possibly recover
old data from non-active projects;
•
16.
Furthermore, all computers used during work
at Plaintiff’s residence have been replaced;
•
17.
Per GDG’s usual business practice, GDG
discarded other Plaintiff-related materials
because the project was considered
successful, finalized, approved, and closed;
•
18.
Due to the custom design work of GDG’s
design practice and the ever-changing nature
of the companies who manufacture products
for GDG, most fabric, title, and other material
samples are discarded regularly after
completing a project because recreating or
reordering the material is not always possible
from old paperwork. GDG must request
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current samples or matches because of new
dye lots, title styles or similar changes in
manufacturing. GDG executes this type of
request, as new design project and billable
work. As well, GDG does not reuse designs
from one project to the next, as each design
project is unique to the client and space. It is
not possible to have a complete design library
in GDG’s offices for each project and the
custom work, given certain space constraints
and the massive area such storage would
occupy.
•
19.
GDG only retains documents for auditable tax
years, and discards those documents once no
longer necessary.
•
20.
I am the only remaining GDG staff member
that worked on Plaintiff’s residence.
•
21.
GDG is attempting to determine what, if any,
banking or accounting documents may still
exist that have not been produced. However,
GDG’s contract accountant was recently
diagnosed with leukemia lymphoma cancer
and has been undergoing treatment, leaving
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her unable to assist GDG in determining what
documents exist with regard to this request.
•
22.
GDG will provide any documents produced
from this search as soon as it can reasonably
be completed.
12.
That Defendant’s own negligence for not having their electronically
stored information [“ESI”] on their computers and server backed up
has created the current discovery dispute. Under these
circumstances, the Defendant, and not the Plaintiff, should be the
party to seek the documents from any of the non-party vendors that
were involved in this case in order to respond fully to the disputed
RFPs and ROGS listed above.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.
That Plaintiff’s Motion to Compel Production of Discovery Requests
(docket no. 37) is GRANTED as follows. Defendant shall
immediately contact its private accountant and review the financial
records and statements that are in the accountant’s possession
which relate to this case and answer fully Plaintiff’s interrogatories
3, 4, 6, 9 and 10 on or before December 19, 2014. On or before
December 19, 2014, Defendant shall also provide copies of such
financial records and statements which it reviews and receives from
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its private accountant to Plaintiff. On or before December 19, 2014,
Defendant shall also provide documents responses to RFPs 1, 3, 5,
6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and
24. Defendant shall immediately contact all non-party vendors that
were involved in this case and obtain documents responsive to the
disputed RFPs and ROGS listed above. On or before November
26, 2014, Plaintiff shall provide Defendant with a list of non-party
vendors that it is aware of which were involved in this case;
2.
That all discovery exchanged during this case is subject to the
Stipulated Protective Order (docket no. 31);
3.
That each party shall pay their own attorney fees and costs for this
motion;
4.
That the discovery cut-off date remains set on February 27, 2015;
and,
5.
That the dispositive motion deadline remains set on March 2, 2015.
Done this 18th day of November 2014.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE
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