United Illuminating Company v. Whiting-Turner Contracting Co

Filing 227

RULING granting in part [Doc. No. 183] Motion to Compel; granting in part [Doc. No. 223] Motion for Protective Order. Signed by Judge Robert M. Spector on 10/7/2019. (Watson, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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UNITED ILLUMINATING CO.
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v.
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WHITING-TURNER CONTRACTING
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CO ET AL
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:
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3: 18 CV 327 (WWE)

DATE: OCT. 7, 2019

RULING ON DEFENDANT WHITING-TURNER’S MOTION TO COMPEL (DOC. NO. 183)
AND PLAINTIFF’S MOTION FOR PROTECTIVE ORDER (DOC. NO. 223)
This litigation arises out of numerous problems with in the construction of two buildings
in Orange, Connecticut. The Whiting-Turner Contracting Company [“Whiting-Turner”]
contracted with the plaintiff United Illuminating Company [“United Illuminating”] for the
construction of these two buildings. In February 2018, United Illuminating filed suit against
Whiting-Turner to recover amounts to remedy the outstanding construction issues and amounts
paid to investigate and remedy certain issues. Multiple third and fourth-party complaints were
filed, and to date, there are nine parties in this case, including sub-contractors and insurers. Under
the current scheduling order, document discovery is to be completed by November 12, 2019;
mediations are scheduled for December 2019 and January 2020, and, if necessary, fact discovery
will proceed to July 2020. (See Doc. No. 180).
I.

PROCEDURAL BACKGROUND
On August 19, 2019, the defendant Whiting-Turner filed the underlying Motion to Compel

(Doc. No. 183), with brief (Doc. No. 184), affidavits and exhibits in support (Doc. No. 183),
seeking: (1) a computation of damages claimed by United Illuminating relating to its claim for
$3,000,000 “already incurred [before February 23, 2018] . . . . to repair defects with the Central

Facility’s heating and cooling systems and power systems” [“the Mechanical Claim”], as alleged
in paragraph 12 of the Complaint; and, the production of all “documents or other evidentiary
material” on which its computation of damages for its Mechanical Claim is based, “including
materials bearing on the nature and extent of injuries suffered[]”; (2) an order compelling United
Illuminating to answer Interrogatory Nos. 5 and 6, related to the alleged defects and its $3,000,000
in alleged costs “already incurred” before February 23, 2018 for its Mechanical Claim; (3)
sanctions in the form of striking this $3,000,000 claim; (4) an order compelling the production of
documents, including certain electronically stored information [“ESI”], dating back to January 1,
2008, as well as back up files to replace ESI that United Illuminating claims was lost during an
“email migration” in 2012, including emails for two United Illuminating custodians, Vallillo and
Torgerson, who were significantly involved with the Central Facility Project by applying the
agreed upon search terms to the agreed upon time frame; and (5) an order compelling United
Illuminating to produce a list of exclusionary search terms that it is using to exclude from
production ESI that is responsive to the agreed upon search terms, or, in the alternative, to produce
all ESI responsive to the agreed upon search terms without the use of exclusionary search terms.
(Doc. No. 184 at 2-3). Whiting-Turner also seeks sanctions and the appointment of a Magistrate
Judge to oversee discovery. (Doc. No. 184 at 3).
Ten days later, United Illuminating filed a Motion for Protective Order (Doc. No. 187) with
brief and multiple exhibits in support. The issue underling this Motion is the emails lost during
United Illuminating’s email migration. When undertaking discovery, United Illuminating learned
that email before 2010 is unavailable because of this email migration that it originally disclosed
occurred in 2012, but actually occurred between March and June 2011. In response, WhitingTurner noticed a deposition for September 3, 2019, seeking testimony on topics relating to United

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Illuminating’s email migration, and served a Request for Production of Documents related thereto.
(Doc. No. 187-1 at 3). The Motion for Protective Order followed.
Ten days thereafter, United Illuminating filed an Emergency Motion for Postponement of
Deposition, relating to its Motion for Protective Order. (Doc. No. 188). On the same day, the
Court (Eginton, J.) referred all the pending discovery motions to this Magistrate Judge. (Doc. Nos.
190, 193; see Doc. Nos. 187, 188, 189)
Following an immediate telephonic conference held the same day, the Court granted the
plaintiff’s Emergency Motion for Postponement of Deposition (Doc. No. 197; see also Doc. Nos.
188, 192, 189, 198), and scheduled a continued telephonic conference for September 4, 2019, to
address the plaintiff’s Motion for Protective Order (Doc. No. 187). During the conference call,
the parties reported some progress towards resolving the Motion for Protective Order (Doc. Nos.
197, 199), and a continued call was set for September 16, 2019. (Doc. No. 200). On September
9, 2019, the plaintiff filed its brief in opposition to Whiting-Turner’s Motion to Compel. (Doc. No.
203).
The Court held a productive conference call on September 16, 2019 (Doc. Nos. 200, 204),
following which the Court denied United Illuminating’s Motion for Protective Order without
prejudice to renewal. (Doc. No. 206). The Court’s Memorandum of the Telephonic Discovery
Conference reads:
Counsel agreed that they will continue to work together to address
outstanding issues through a phase process as they described it to the Court. If the
parties hit an impasse, they shall contact the Court for a telephonic conference call.
No deposition relating to the server issue shall be noticed prior to a conference call
with the Court and an opportunity for United Illuminating to refile its Motion for
Protective Order.
Additionally, as agreed upon by counsel, the parties will continue to work
to resolve the issues in Whiting-Turner’s Motion to Compel (Doc. No. 183).

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A follow up telephonic status conference to discuss discovery, including the
Motion to Compel, and to address settlement, is set for Thursday, September 26,
2019 at 11:30 a.m.
(Doc. No. 205).
On September 23, 2019, Whiting-Turner filed its reply to its Motion to Compel. (Doc. No.
214). Two days later, United Illuminating filed a Motion for Permission to File a Sur-Reply brief
(Doc. No. 215); Whiting-Turner filed an objection the same day. (Doc. No. 216). The Court held
its telephonic discovery conference the next day (Doc. No. 218), during which it granted United
Illuminating’s Motion for Permission to File a Sur-Reply brief and set the remaining outstanding
issues down for oral argument on October 4, 2019. (Doc. Nos. 217-19).
The day before the oral argument, United Illuminating filed a Statement of Position on
Outstanding Discovery Issues, with exhibits in support (Doc. No. 222), and filed its renewed
Motion for Protective Order (Doc. No. 223). Later that day, Whiting-Turner filed its Statement of
Position, with exhibit in support. (Doc. No. 225). The Court heard oral argument on October 4,
2019. (Doc. No. 226; see Doc. No. 219).
A.

MOTION TO COMPEL

There are six issues addressed in Whiting-Turner’s Motion to Compel. After consideration
of the parties’ extensive briefing, and lengthy oral argument before the undersigned, the Court
articulated its ruling on each of these issues on the record during the October 4, 2019 oral
argument, and memorializes these conclusions as follows:
1.

COMPUTATION OF DAMAGES RELATING TO PARAGRAPH 12 OF
THE COMPLAINT

United Illuminating shall continue to produce responsive documents, on a rolling basis, up
to the deadline for document discovery, which is November 12, 2019.

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2.

INTERROGATORY NO. 5 AND INTERROGATORY NO. 6

Consistent with the Court’s Order regarding United Illuminating’s production relating to
the computation of damages, United Illuminating shall continue to supplement its production
through its rolling compliance, up to November 12, 2019. United Illuminating shall answer
Interrogatory Nos. 5 and 6 as fully as it can, meaning, as the Court stated on the record, that when
United Illuminating is asked to identify defects, United Illuminating shall be as specific as it can
in its responses, so that Whiting-Turner can determine which sub-contractor performed the
allegedly defective work, and which additional costs allegedly flowed from that defective work.
3.

SANCTIONS

Federal Rule of Civil Procedure 37(d)(1)(A)(ii) states that the “court may, on motion, order
sanctions if . . . a party, after being properly served with interrogatories under Rule 33 or a request
for inspection under Rule 34, fails to serve its answer, objections, or written response.” Id. Rule
37(d) sanctions “are reserved for the most flagrant instances of discovery non-compliance.” Doe
v. Mastoloni, 307 F.R.D. 305, 308 (D. Conn. 2015) (emphasis in original). In light of United
Illuminating’s production, and continued production on a rolling basis, the Court will not impose
sanctions.
4.

VALLILLO AND TORGERSON EMAILS

Whiting-Turner initially sought in its motion to compel all emails involving top executives
Vallillo and Torgerson, and United Illuminating objected to that request. After extensive
discussion of the issue at oral argument on October 4, 2019, the parties agreed that United
Illuminating would respond to the following, limited request by November 12, 2019: “In the event
that United Illuminating discovers that Mr. Vallillo was the subject of one or more “extenuating
circumstances” such that emails for the 2009-2011 period are available (in back up form, or are

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generally in existence), United Illuminating shall produce emails responsive to the agreed upon
search terms for the period of 2009-2012, on or before November 12, 2019.”
5.

EXCLUSIONARY SEARCH TERMS

As agreed upon by counsel during oral argument on October 4, 2019, United Illuminating
will provide its exclusionary search terms in exchange for Whiting-Turner’s production of its
exclusionary search terms. Both parties will exchange those terms on October 11, 2019.
6.

ELECTRONIC AND PAPER PRODUCTION OF DOCUMENTS

As discussed on the record, United Illuminating will produce responsive electronic
documents by November 12, 2019, and counsel for United Illuminating confirmed that, to date, all
paper documents have been produced. Whiting-Turner will complete its production of documents
by November 12, 2019.
B.

RENEWED MOTION FOR PROTECTIVE ORDER

On October 3, 2019, United Illuminating renewed its Motion for Protective Order (Doc.
No. 223) in response to Whiting-Turner re-noticing the Rule 30(b)(6) deposition for October 28,
2019. According to United Illuminating, Whiting-Turner is seeking “irrelevant information
including, but not limited to, United Illuminating’s document retention policies for the period and
its issuance of litigation holds.” (Doc. No. 222 at 9; see Doc. No. 223).
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations
of permissible discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the important of the issues at stake in the action, the amount in controversy, the
parties’ relative access to the relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.

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FED. R. CIV. P. 26(b)(1). The Advisory Committee’s Notes to the 2015 amendment of Rule 26
further explain that
[a] party claiming that a request is important to resolve the issues should be able to
explain the ways in which the underlying information bears on the issues as that
party understands them. The court’s responsibility, using all the information
provided by the parties, is to consider these and all the other factors in reaching a
case-specific determination of the appropriate scope of discovery.
FED. R. CIV. P. 26 advisory committee’s note to 2015 amendment. A party from whom discovery
is sought, may seek a protective order to shield itself from “annoyance, . . . undue burden or
expense[.]” FED. R. CIV. P. 26(c)(1). A court may issue a protective only after the moving party
demonstrates good cause. In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir. 1987).
“To establish good cause under Rule 26(c), courts require a particularized demonstration of fact,
as distinguished from stereotyped and conclusory statements.” Id. (citations and internal quotation
marks omitted).
In this case, United Illuminating has moved for the entry of a protective order on grounds
that the discovery sought is irrelevant and not proportional, and some of the discovery sought is
privileged. In response, Whiting-Turner argues specifically that the relevance of the 2009-2011
emails it seeks is “beyond dispute[,]” as the design took place in 2009-2010, and the construction,
testing and inspection took place in 2010-2012. (Doc. No. 225 at 4). Whiting-Turner argues that
documents produced to date suggest that the defects alleged by United Illuminating, are the result
of United Illuminating’s decisions in the design, testing and inspection of the Project, which were
“likely discussed more candidly in internal emails between [United Illuminating] employees in
2009-2011.” (Id.). Thus, “[i]f all of these emails have been deleted, Whiting-Turner needs to
confirm when that happened relative to [United Illuminating’s] expectation of litigation.” (Id.).

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Rather than proceed with a 30(b)(6) deposition, however, Whiting-Turner expressed its
willingness to accept an affidavit from an authorized United Illuminating representative. (Id.at 7).
After considering Whiting-Turner’s proposal, and hearing extensive argument on this
issue, the Court directed, and the parties agreed, that, in lieu of a deposition, an authorized United
Illuminating representative shall complete an affidavit containing clear and complete answers to
the following questions:1
1.

United Illuminating claims that only six months of emails were migrated from
Lotus Notes to MS Outlook during the 2011 email migration.
a. Was it the same six month period for all custodians?
b. What six months of email was migrated for the custodians previously
listed including Torgerson and Vallillo?

2.

United Illuminating claims that additional emails were preserved due to
“extenuating circumstances.”
a. Identify all “extenuating circumstances” which led to the preservation
of emails in addition to the “six months.”
b. Identify every custodian (defined as other employees who may be
copied on Project emails) for whom emails were preserved based on
“extenuating circumstances” and the scope of the emails preserved by
date and/or subject as applicable.2

3.

United Illuminating claims that the Lotus Notes email archive server “failed.”
a.

Is the server in United Illuminating’s possession, custody or control?
(Answer yes or no)

b. When did United Illuminating staff realize that the emails regarding the
Central Facility Project were gone?3

1

As agreed upon during oral argument, the foregoing questions are not intended to implicate privileged information,
and United Illuminating’s responses are limited to non-privileged documents or communications.
2

This question has been modified from the original question, as discussed during oral argument.

In Whiting-Turner’s draft proposal, this question was labeled as 3.d. It has been modified from the original question,
“When did [United Illuminating] discover that it had failed?” See note 1 supra.
3

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c. Identify whether this server was the only backup source for United
Illuminating’s emails from 2009-2011. (Answer yes or no)4
4.

United Illuminating claims that United Illuminating learned that the 2009-2011
email was lost “in gathering discovery.”5
a. Explain when United Illuminating discovered that 2009-2011 email
relevant to the Central Facility Project had been lost.6

5.

Explain all steps taken by United Illuminating to determine whether there are 20092011 emails relevant to the Central Facility Project that remain in existence and
what they discovered.7
a. Did United Illuminating ask each custodian whether they had any
backup, PST or other electronic or printed copies of these emails?
(Answer yes or no)
b. Did United Illuminating investigate whether any United Illuminating
custodians with involvement in the Central Facility Project had some or
all of their 2009-2011 emails preserved due to an extenuating
circumstance? (Answer yes or no)
c. Did United Illuminating investigate whether any additional backup
media exists containing this media?
d. Did United Illuminating discover that sources of these 2009-2011emails
relevant to the Central Facility Project became available for any other
reason other than the 2011 migration?

6.

4

Identify all dates when United Illuminating issued litigation hold instructions
related to the Central Facility project.8

In Whiting-Turner’s draft proposal, this question was labeled as 3.e.

In Whiting-Turner’s draft proposal, this question was labeled as 3.f.

5

In Whiting-Turner’s draft proposal, this question was labeled as 3.g and was modified to remove “(date and
circumstances)”.
6

In Whiting-Turner’s draft proposal, this was labeled as 4. With the exception of subsection c, all of these questions
were modified during the hearing before the Court. See note 1 supra.
7

In Whiting-Turner’s draft proposal, this question was labeled as 5 and was modified to remove “and who received
the litigation hold instructions”.
8

9

7.

Did United Illuminating have a document retention/preservation policy for 2011
through the date of the destruction of the server? If so, what was the policy?9

8.

Did United Illuminating have a policy relating to backup email practices and
procedures from 2011 through the date of destruction of the server? If so, what was
that policy?10

Accordingly, the Renewed Motion for Protective Order (Doc. No. 223) is granted such
that the deposition will not go forward on October 28, 2019. In lieu of the deposition, by October
28, 2019, an authorized United Illuminating representative shall execute an affidavit containing
responses to the questions outlined above by the Court.
II.

CONCLUSION
Accordingly, this Court concludes that Whiting-Turner’s Motion to Compel (Doc. No.

183) is granted in part and United Illuminating’s Renewed Motion for Protective Order (Doc. No.
223) is granted in part as set forth above.
This is not a Recommended Ruling. This Ruling is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); and
D. CONN. L. CIV. R. 72.2. As such, it is an order of the Court unless reversed or modified by the
district judge upon timely made objection.
Dated at New Haven, Connecticut, this 7th day of October, 2019.
__/s/ Robert M. Spector_____________
Robert M. Spector
United States Magistrate Judge

9

In Whiting-Turner’s draft proposal, this question was labeled as 6 and was modified as stated above.

10

In Whiting-Turner’s draft proposal, this question was labeled as 7 and was modified as stated above.

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