United States v. Turner Construction Company et al
Filing
46
ORDER granting 43 Turner's Motion to compel production from Bolena. Signed by Magistrate Judge Thomas B. Smith on 12/14/2012. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES for the use and benefit of
RMP CAPITAL CORP.,
Plaintiff,
v.
Case No. 6:11-cv-1717-Orl-19DAB
TURNER CONTRUCTION COMPANY, a
foreign corporation and TRAVELERS
CASUALTY AND SURETY COMPANY OF
AMERICA, a foreign corporation,
Defendants.
______________________________________
UNITED STATES for the use and benefit of
BOLENA CONSTRUCTION, INC.,
Plaintiff,
v.
Case No. 6:11-cv-1983-Orl-19TBS
TURNER CONTRUCTION COMPANY, a
foreign corporation, TRAVELERS
CASUALTY AND SURETY COMPANY OF
AMERICA, a foreign corporation, FEDERAL
INSURANCE COMPANY, a foreign
corporation, FIDELITY AND DEPOSIT
COMPANY OF MARYLAND/ZURICH
AMERICAN INSURANCE COMPANY, a
foreign corporation, and LIBERTY MUTUAL
INSURANCE COMPANY, a foreign
corporation,
Defendants.
______________________________________
ORDER
This case comes before the Court on Defendant, Turner Construction
Company’s Motion to Compel Documents Responsive to First Request for Production
to Plaintiff, Bolena Construction, Inc. in Case No. 6:11-cv-1983-Orl-19TBS (the
“Bolena Action”). (Doc. 43). Plaintiff has not filed a paper in opposition to the motion
and the time for doing so has passed. The motion is ripe for resolution and no
hearing is deemed necessary. For the reasons stated below, the Court will grant the
motion.
On October 26, 2011, the United States for the Use and Benefit of RMP Capital
Corp. (“RMP”) filed Case No. 6:11-cv-1717-Orl-19DAB in this Court. (Doc. 1).1 RMP
alleges that Turner Construction Company (“Turner”), entered into a contract with the
United States Department of Veterans Affairs, Office of Construction and Facilities
Management (“VA”), for the federal project known as the Community Living Center
Domiciliary and Chapel Package 2, New VA Medical Center, Orlando, Florida (the
“Project”). (Doc. 1, ¶ 12). Turner, together with Travelers Casualty and Surety
Company of America, Federal Insurance Company, Fidelity Insurance Company of
Maryland/Zurich American Insurance Company, and Liberty Mutual Insurance
Company (collectively the "Sureties"), provided a Miller Act payment bond (“Bond”) in
connection with the Project. (Doc. 1, ¶ 13). Turner subcontracted the insulated
concrete forming portion of the work to Bolena Construction, Inc. ("Bolena"). (Doc. 1,
¶ 14). Bolena in turn, entered into a sub-subcontract agreement with Southwick, Inc.
("Southwick") to perform the work under Bolena’s contract with Turner. (Doc. 1, ¶
15). Southwick assigned all its rights for its present and future accounts receivable
under the sub-subcontract to RMP. (Doc. 1, ¶ 16). Southwick completed significant
1
All references in this paragraph are to documents filed in Case No. 6:11-cv-1717-Orl-19DAB
(the “RMP Action”).
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work on the Project before demanding payment from Turner, Bolena, and the Sureties
all of whom have refused to make payment. (Doc. 1, ¶¶ 18 and 19). RMP filed the
RMP Action alleging that Turner and the Sureties are obligated to it under the Bond,
for the labor, materials, and services provided by Southwick, for which Turner has
failed to make payment.
On December 14, 2011, the United States for the use and benefit of Bolena
filed the Bolena Action. (Doc. 1).2 Bolena’s complaint alleges that it entered into a
subcontract with Turner to complete insulated forming at the Project. (Doc. 1, ¶ 12).
Bolena claims that it completed its work, but both Turner and the Sureties have failed
to pay it for the work it performed. (Doc. 1, ¶¶ 15 and 16). Count I of Bolena’s
complaint is for breach of contract against Turner; Count II is a claim for quantum
meruit against Turner; Count III is an action against the Sureties for payment pursuant
to the Miller Act; and Count IV is an action for quantum meruit against the Sureties.
(Doc. 1).
The Court determined that the RMP Action and the Bolena Action involve
common questions of law or fact and on March 15, 2012, it entered its Order of
Consolidation, consolidating the actions for pretrial proceedings and trial. (Bolena
Action, Doc. 35).
Turner propounded its First Request for Production to Bolena on March 9,
2012. (Bolena Action, Doc. 43-1). Bolena did not seek a protective order. On May
11, 2012, Bolena served its answers and objections. (Bolena Action, Doc. 43-2).
2
All references in this paragraph are to the Complaint filed in the Bolena Action.
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Now, Turner seeks a Court order overruling Bolena’s objections to requests 42-45
and compelling Bolena to produce the requested information. (Doc. 43). Turner’s
requests and Bolena’s objections appear below:
42. AIl draft settlement agreements or settlement agreements
entered into between Bolena and RMP Capital Corp.
Objection, confidential/settlement communications.
43. All documents, including but not limited to e-mails
exchanged between counsel, relating to settlement
agreements between Bolena and RMP Capital Corp.
The documents related to this request are Doc. No.:
Objection, confidential/settlement communications.
44. All draft joint defense agreements or joint defense
agreements entered into between Bolena and RMP Capital
Corp.
Objection, confidential/settlement communications.
45. All documents, including but not limited to e-mails
exchanged between counsel, relating to joint defense
agreements between Bolena and RMP Capital Corp.
Objection, confidential/settlement communications.
Federal Rule of Civil Procedure 34(a) authorizes parties to serve upon each
other, document requests which relate to any matter that may be inquired into under
Rule 26(b). A party who objects to a request for production must include the reasons
for the objection. FED. R. CIV. P. 34(b)(2)(B). Objections to discovery must be “plain
enough and specific enough so that the court can understand in what way the
[discovery is] alleged to be objectionable.” Panola Land Buyers Assoc. v. Shuman,
762 F.2d 1550,1559 (11th Cir. 1985) (quoting Davis v. Fendler, 650 F.2d 1154, 1160
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(9th Cir. 1981)).
The scope of discovery is broad “in order to provide parties with information
essential to the proper litigation of all relevant facts, to eliminate surprise and to
promote settlement.” Coker v. Duke & Co., Inc., 177 F.R.D. 682, 685 (M.D. Ala.
1998). The Federal Rules of Civil Procedure “strongly favor full discovery whenever
possible.” Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.
1985). Rule 26(b)(1) allows parties to “obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense.” ”Relevance is “construed
broadly to encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351(1978). A discovery request “should be
considered relevant if there is any possibility that the information sought may be
relevant to the subject matter of the action.” Roesberg v. Johns-Manville Corp., 85
F.R.D. 292, 296 (E.D. Pa. 1980); see also Deitchman v. E.R. Squibb & Sons, Inc., 740
F.2d 556 (7th Cir. 1984) (If Court is in doubt concerning relevancy of requested
discovery the discovery should be permitted.).
Turner asserts that the information it seeks is relevant because it consists of
documents between parties to this consolidated action, which deal with the subject
matter of this consolidated action. (Bolena Action, Doc. 43). Turner anticipates
calling representative of RMP and Bolena as witnesses at trial and believes the
information it seeks may be relevant to show they are biased and prejudiced. (Id.)
This is a sufficient good faith basis for Turner to request the information.
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Bolena’s sole objection is that the information constitutes settlement
communications which it says are confidential. Federal Rule of Evidence 408
prohibits evidence of a party’s offer to compromise a claim or the actual compromise
of a claim to prove the validity or invalidity of the claim, or the amount of damages.
Rule 408 does allow the evidence if it is offered for another purpose including for
example, to show that a witness is biased or prejudiced. (Id.) The Rule does not bar
the discovery of information concerning a settlement. In re Denture Cream Products
Liability Litigation, 2011 WL 1979666 * 5 (S.D.Fla.); Griffin v. Mashariki, 1997 WL
756914 * 1-2 (S.D.N.Y.); and Tribune Co. v. Purcigliotti, 1996 WL 337277 * 1-2
(S.D.N.Y.). While the parties to a settlement may agree to keep it confidential, their
agreement does not shield their settlement from discovery. Tribune Co. v. Purcigliotti,
1996 WL 337277 * 3. As the Court in Jeld-Wen, Inc. v. Nebula Glass International,
Inc., 2007 WL 1526649 * 3 (S.D.Fla.), explained:
There is nothing magical about a settlement agreement. It
ultimately is just a contract between two parties. . . . Rule 26
has no exception for settlement agreements. Therefore, the
traditional post-2000 standards that apply to any Rule 26
issue apply to this document. . . . admissibility issues should
not drive the discovery issue. There is at least a good faith
basis here to argue that the settlement agreement may be
admissible at trial. That fact entitles [plaintiff] to production of
potentially relevant evidence, whether or not the document is
actually admitted at trial. (emphasis in original) (citing Bennet
v. La Pere, 112 F.R.D. 136, 139 (D.R.I. 1986).
Now, Bolena’s objections are OVERRULED. Bolena shall produce all of the
requested information within seven days from the rendition of this Order.
Federal Rule of Civil Procedure 37(a)(5) provides that when a motion to compel
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is granted, or if the requested discovery is produced after a motion to compel is filed,
“the court must, after giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney advising that conduct, or
both to pay the movant's reasonable expenses incurred in making the motion,
including attorney's fees.” However, the Rule states that the Court “must not order
payment if: (i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action; (ii) the opposing party's nondisclosure,
response, or objection was substantially justified; or (iii) other circumstances make an
award of expenses unjust.” Id. None of the exceptions apply in this case.
Accordingly, Turner is awarded its expenses, including reasonable attorneys’ fees for
the prosecution of this motion. If the parties are unable to agree upon the amount due
Turner within fourteen days from the rendition of this Order, Turner should file its
application for expenses and then Bolena should file its response.
IT IS SO ORDERED.
DONE AND ORDERED in Orlando, Florida, on December 14, 2012.
Copies to all Counsel
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