HICO America Sales & Technology, Inc. v. Efacec Power Transformers, Inc.

Filing 15

ORDER granting in part and denying in part 1 Motion to Compel. Efacec shall provide, within thirty days, all discovery responsive to HICO's subpoena, subject the limitations stated. Signed by Magistrate Judge G. R. Smith on 6/26/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
HICO AMERICA SALES &
TECHNOLOGY, INC.,
Plaintiffs,
Case No. CV415-054

V.

EFACEC POWER TRANSFORMERS,
INC.,
Defendant.

ORDER
Presently before the Court is a discovery dispute arising from a
case filed in another district.

See Entergy Louisiana, LLC v. HICO

American Sales & Technology Co., No CV214-750 (E.D. La. filed Apr. 2,
2014). Entergy Louisiana, LLC ("Entergy") claims that HICO America
Sales & Technology, Inc. ("HICO") breached its contract by shipping
Entergy a faulty transformer, which forced Entergy to contract with a
third party for another transformer.

Id., doe. 1-2 (complaint). That

third party is Efacec Power Transformers, Inc. ("Efacec"), which
operates out of Rincon, Georgia. (Doe. 1 at 1.) HICO has filed a motion
to compel Efacec to produce discovery sought in a subpoena duces tecum.

(Id.) It wants to discover the details of the transaction between Efacec
and Entergy to support its counterclaim that Entergy wrongfully refused
it a reasonable opportunity to repair the custom-manufactured
transformer and instead secretly contracted with Efacec for a
replacement, leaving HICO with a unique $4,000,000 transformer that
cannot be resold. (Id. at 2.)
HICO claims that Efacec has produced only a handful of responsive
documents in three separate batches over more than three months.
Accordingly, it asks the Court to compel Efacec to respond fully to the
subpoena, produce a privilege log for any documents withheld on the
basis of privilege, produce all electronically stored information and
documents requested, and certify that it has conducted a search for
information requested and that the requested information either does
not exist or has been produced. (Id. at 3.) Efacec responds that HICO
has failed to comply with the "meet and confer" requirements set forth
in Fed. R. Civ. P. 37(a)(2). (Doc. 10 at 6-8.) Otherwise it does not deny
that there is additional discovery forthcoming and objects to only two of
the subpoena's requests. (Id. at 8-9.)
To be certain, this Court enforces Fed. R. Civ. P. 37(a)(2)'s
2

requirement that the parties make a good faith effort to resolve discovery
disputes before filing a motion to compel.

E.g., Scruggs v. Int'l Paper

Co., 2012 WL 1899405 at * 2 (S.D. Ga. May 24, 2012). In fact, it reminds
the parties of this requirement in its Local Rules. See S.D. Ga LR 26.4
("[c]ounsel are reminded that Fed. R. Civ. P. (26(c) and 37(a)(2) require a
party seeking a protective order or moving to compel discovery to certify
that a good faith effort has been made to resolve the dispute before
coming to court."). Here, there is no question that the requirement was
met. Efacec admits that HICO sent it a Rule 37 letter on December 4,
2014. (Doe. 10 at 4.) Furthermore, counsel participated in a phone
conference, where Efacec notified HICO that it would continue to search
for responsive documents. (Id.) Counsel for HICO states, under penalty
of perjury, that she "reviewed the production, and addressed the
insufficiency of that production during the Rule 37 conference." (Doe.
14-2 at 2.)
Efacec's argument seems to be that, because there was no further
contact after December. 2014, the parties were required to participate in
another conference prior to filing a motion to compel. (Doe.

io at 5

("Notably, since providing its second production on December 11, 2014,
3

Efacec has received no further communications from HICO regarding the
production or the Subpoena until this Motion to compel was filed on
March 4, 2015."). The Court is aware of no such requirement. She also
states that HICO never notified her that Efacec's second production was
deficient, but an e-mail she sent to HICO's counsel shows that she was
well aware that HICO believed the production was not satisfactory.
(Doc. 14-1 at 1 (December 23, 2014 e-mail from counsel stating "I am still
waiting to hear back from [Efacec] on the additional documents. Please
be assured that on my end, I am doing everything possible to push this
process forward and will continue to do so.").)
Efacec, meanwhile, only objects to two categories of documents.
First, it claims that Category 7, which asks for "All contracts or purchase
orders (or a list of all contracts or purchase orders) executed by Efacec
for the manufacture or supply of a transformer(s) above 300 MVA and
230kV in the past 20 years" is irrelevant since those documents are
unrelated to the transaction at issue in the underlying litigation. (Doc.
10 at 8; doc. 1 at 12.) Second, it claims that Category 11 is too broad, as
it would include information related to other transactions unrelated to
the transaction at issue. (Doc. 10 at 9.) It asks for all "documents . .
El

including correspondence, emails, faxes, letters, memoranda, notes,
reports, tests, writings, communications, and transmittals, reflecting,
referencing, or relating to communications between Efacec and Entergy
during the time period of October 2010 to April 2014 and any documents
provided by Entergy or by Harold Moore to Efacec during that time
period." Id. The Court agrees on both counts. Category 7 is, at the very
least, overly broad, and HICO has not explained why such disclosures are
necessary in its reply brief. (Doe. 14.) Similarly, Category 11 should be
limited to information related to the transaction at issue.
The Court thus GRANTS in part and DENIES in part HICO's
motion to compel. (Doe. 1.) Efacec shall produce, within 30 days, all
discovery responsive to HICO's subpoena, subject the limitations stated
above. If Efacec maintains that certain documents are privileged or
otherwise confidential, then it shall produce a privilege log setting forth
the following information as to each document or communication
responsive to HICO's subpoena: (1) the nature of the document or
communication; (2) the date of the document or communication; (3) its
source; (4) the intended recipient; (5) each individual or entity that
received it; (6) the purpose for which it was prepared; (7) the nature of
5

the privilege asserted; and (8) sufficient facts to allow the Court to assess
whether the document or communication falls within the privilege.
SO ORDERED this d6 9 day of June, 2015.

Z~

?

-

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA