Marine Lumber Co. vs. Precision Moving & Storage, Inc.

Filing 105

MEMORANDUM OPINION AND ORDER ON DISCOVERY ISSUES: re 82 MOTION for Sanctions for Discovery Abuse filed by Marine Lumber Co., re 80 MOTION to Hold Defendant in Contempt for Failure to Appear and For Sanctions for Discovery Abuse filed by Marine Lumber Co... Signed by MAGISTRATE JUDGE RICHARD L. PUGLISI on 08/16/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIVIL NO. 16-00365 LEK-RLP
)
Plaintiff,
) MEMORANDUM OPINION AND ORDER ON
) DISCOVERY ISSUES
vs.
)
)
PRECISION MOVING AND STORAGE, )
INC.,
)
)
Defendant.
)
)
MARINE LUMBER CO.,

MEMORANDUM OPINION AND ORDER ON DISCOVERY ISSUES
Before the Court are two motions:

Plaintiff’s Motion

to hold Defendant in Contempt for Failure to Appear and for
Sanctions for Discovery Abuse, filed July 3, 2017 (“Depositions
Motion”) and Plaintiff’s Motion for Sanctions for Discovery Abuse
(“Discovery Abuse Motion”).

ECF Nos. 80, 82.

On July 17, 2017,

Defendant filed its Opposition to the Deposition Motion, and on
July 31, 2017, Plaintiff filed its Reply.

ECF Nos. 89, 95.

On

July 21, 2017, Defendant filed its Opposition to the Written
Discovery Motion, and on August 4, 2017, Plaintiff filed its
Reply.

ECF Nos. 90, 98.

August 16, 2017.

A hearing on the Motions was held on

ECF Nos. 94, 104.

Having reviewed the

submissions of the parties and applicable law, and for the
reasons set forth below, the Court GRANTS IN PART and DENIES IN
PART the Motions.
/ / /
/ / /

BACKGROUND
This dispute arises out of an order of wooden crates
called “lift vans” allegedly shipped from Marine Lumber Co.
(“Marine”) in Oregon to Precision Moving and Storage, Inc.
(“Precision”) in Hawaii.

On June 30, 2016, Marine filed its

Complaint alleging that Precision owes it payment for the lift
vans.

Discovery was stayed from December 23, 2016, until March

28, 2017, while Marine’s motion for summary judgment was pending.
ECF Nos. 46, 48.
No. 77-1 at 12.

The parties resumed discovery in April.

ECF

Marine received discovery responses in May.

No. 21-1 at 11; see also ECF Nos. 82-9; 82-10; 82-11; 82-12.

ECF

July, Marine filed the instant Motions.

In

ECF Nos. 80, 82.

DISCUSSION
I.

Depositions Motion
Marine argues that depositions of Precision’s employees

and corporate representative were properly noticed for
depositions set for June 8 and 9, 2017 and that Precision’s
counsel and witnesses failed to appear or move for a protective
order.

See ECF No. 80-1 at 19.

Marine seeks an order holding

Precision, its counsel, and its five witnesses in contempt of
court;

$15,000 in expenses for appearing at the depositions and

bringing this Depositions Motion; and terminating sanctions,
including damages of $130,690.00, interest, and attorneys’ fees
and costs.

ECF No. 80 at 3-5.

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First, Marine requests to hold Precision and its
witnesses in contempt under Rule 45.

See ECF No. 80-1 at 19, 33.

“Under Federal Rule of Civil Procedure 45(g), a party may seek an
order to show cause as to why a contempt citation should not
issue if a person ‘fails without adequate excuse to obey [a]
subpoena or an order related to it.’”

AngioScore, Inc. v.

TriReme Med., Inc., No. 12-CV-03393-YGR(JSC), 2014 WL 6706898, at
*1 (N.D. Cal. Nov. 25, 2014) (quoting Fed. R. Civ. P. 45(g)).
However, courts are generally reluctant to initiate such contempt
proceedings absent a prior court order compelling compliance,
even where no such order was previously sought, and especially
when attorneys issue subpoenas as a matter of course and without
judicial involvement.

In re Consol. Meridian Funds, No.

10-17952, at *10 (Bankr. W.D. Wash. Apr. 5, 2013); Dallas Buyers
Club, LLC v. Doe–71.238.61.141, No. 3:16-CV-00551-AC, 2016 WL
6208268, at *2 (D. Or. Oct. 21, 2016) (citing S.E.C. v. Hyatt,
621 F.3d 687, 694 (7th Cir. 2010)).

Here, the subpoena was

issued by Marine as a matter of course, and there is no prior
order compelling compliance with it or otherwise compelling
attendance at depositions.

Therefore, contempt proceedings are

not appropriate.
Second, Marine requests sanctions under Rule 37 for the
missed depositions.

See ECF No. 80-1 at 20, 34.

Rule 37

provides that a party’s failure to appear a deposition is not

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excused unless the party has moved for a protective order.
R. 37(d)(1)(A).

Fed.

Rule 37 grants courts discretion to sanction a

party that fails to appear at its deposition.

Fed. R. 37(d)(3).

Here, on April 28, 2017, Marine requested to conduct depositions
of Precision’s corporate representative, president, and specific
employees on June 8 and 9, 2017, explaining that Marine’s pro-hac
vice counsel would already be in Hawaii for the parties’
settlement conference.

ECF No. 80-3 at 100-01.

Marine noticed

and issued subpoenas for the depositions on May 2, 2017.
Nos. 80-4; 80-5, 80-6.

See ECF

In the five weeks preceding the

depositions, Precision did not move for a protective order.
Precision, its counsel, and its corporate representative did not
appear for the depositions.

See ECF Nos. 80-7; 80-8.

Therefore,

the Court finds sanctions against Precision are appropriate under
Rule 37.
Moreover, the Court finds that Precision’s counsel has
again failed to confer in good faith with Marine regarding
discovery.

See ECF No. 74 at 4-6 (prior order finding that

“Precision’s counsel did not attempt in good faith to resolve
this [discovery] matter without judicial involvement”).

In the

weeks preceding the depositions, Precision discussed scheduling
depositions with Marine and did not oppose scheduling depositions
on June 8 and 9, 2017.

See ECF Nos. 89-4; 89-5.

In one such

correspondence, Precision stated its understanding that Marine

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wished to reschedule the depositions of Precision’s witnesses
from May to June, and that Precision “will proceed forward with
discovery.”

ECF No. 89-25.

However, on June 5,1

2017 -- five

weeks after the initial request, three days before the
depositions were set to begin, and after Marine’s counsel arrived
in Hawaii -- Precision informed Marine for the first time that
all of Precision’s witnesses and counsel were unavailable for the
upcoming depositions, without explanation.

ECF No. 80-1 at 19-

20; ECF No. 89-27.
For the first time in its Opposition, Precision claims
that each witness and counsel had various reasons for missing the
depositions, such as medical issues and a family vacation.
ECF Nos. 89-1, 89-2, 89-3, 89-4, 89-5.

See

The Court is not

persuaded by Precision’s claim that each of its four witnesses
and its counsel were unavailable for unrelated reasons on June 8
and 9, 2017, while Marine’s counsel was in Hawaii, but that each
witness was available for a number of dates beginning on June 26,
2017.

See ECF Nos. 89-1, 89-2, 89-3, 89-4, 89-5.
Even if the absences were fully justified, it would not

excuse Precision’s counsel’s delay in conferring with its

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On June 2, 2017, Precision’s counsel drafted a letter
response, which was sent via a facsimile over the ensuing weekend
and first received by Marine’s counsel on June 5, 2017. ECF No.
80-1 at 19. On June 1, 2017, one day prior, this Court
admonished Precision’s counsel for its earlier practice of
responding to Marine’s counsel untimely and indirectly. See ECF
No. 74 at 6-7.
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witnesses and with Marine.

Precision does not appear to have

conferred with its witnesses regarding depositions until June 2,
2017 - less than a week before the depositions were scheduled to
begin.

See ECF Nos. 89-1, 89-2, 89-3, 89-4, 89-5.

Sanctions

against Precision are warranted.
Therefore, the Court ORDERS Precision’s counsel and
each witness noticed by Marine to appear for depositions in
Honolulu, Hawaii at a time and place noticed by Marine within 30
days.

Marine’s counsel shall provide Precision’s counsel at

least two dates of availability for depositions within the next
30 days, by no later than August 16, 2017.

Precision’s counsel

shall select among those and inform Marine’s counsel, by no later
than August 17, 2016.

The deadline for discovery is extended for

the limited purpose of conducting these depositions.

Precision

will bear the expense of the depositions up to $1,500.

Each

party shall bear its own attorneys fees and travel costs.
The Court further ORDERS Precision to pay Marine $1,500
in attorneys’ fees and costs for the missed depositions and for
the bringing of this Motion, by no later than August 23, 2017.
The Court DENIES Marine’s requests to impose terminating
sanctions and DENIES Marine’s request to intimate contempt
proceedings against Precision and its witnesses.
II.

Discovery Abuse Motion
Marine argues that the majority of Precision’s

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responses to written discovery requests are deficient and seeks
sanctions under Rule 37.

See ECF No. 82 at 6.

Marine requests

$15,000 in litigation expenses for bringing this Discovery Abuse
Motion and terminating sanctions, including damages of
$130,690.00, interest, and attorneys’ fees and costs.
at 5.

ECF No. 82

Although Marine does not ask the Court to compel specific

responses, many of Precision’s responses are deficient, and
Precision has failed to confer with Marine in good faith, as set
out in detail below.
A.

Precision’s Deficient Discovery Responses
1.

Requests for Answers to Interrogatories

First, Precision provides boilerplate objections in
response to each interrogatory.

See ECF Nos. 82-9; 82-12.

Several responses recite the boilerplate objection and provide
nothing further.

See id., Response Nos. 3, 4, 6, 11, and 12.

Under Rule 33, boilerplate objections to interrogatories are not
permitted.

Fed. R. Civ. P. 33(b)(4).

“The grounds for objecting

to an interrogatory must be stated with specificity.”

Id.

Therefore, Precision’s Responses to Request for Answers to
Interrogatories are deficient.
Moreover, Precision’s responses appear intended to
prevent the discovery of relevant information and to obstruct the
discovery process.

For example, Request for Answers to

Interrogatories Nos. 2 and 7 ask Precision to identify those with

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knowledge of this case.

ECF No. 82-9.

Although Precision

provided declarations from two witnesses when opposing summary
judgment, see ECF Nos. 28-2 and 28-3, Precision has not
identified such individuals in this response.

Additionally, a

number of responses include inappropriate personal attacks
against opposing counsel and Marine’s employees.
82-9. Nos. 2, 5, 7, 8.

See ECF No.

Therefore, supplemental responses to the

interrogatories are warranted.
However, Request for Answers to Interrogatories Nos. 9
and 10 inquire into Precision’s lawsuits with non-parties.

Such

discovery is not proportional to the needs of this case at this
juncture.

See Fed. R. Civ. P. 26(b)(1).

If Marine succeeds on

its claim and is entitled to a monetary judgment against
Precision, additional discovery on Precision’s financial status
may be appropriate at that time.

Accordingly, Precision is not

required to provide supplemental responses to Request for Answers
to Interrogatories Nos. 9 and 10.
Accordingly, the Court ORDERS Precision to provide
Marine supplemental responses to Request for Answers to
Interrogatories Nos. 1-8 and 11-63, which refrain from reciting
boilerplate objections and personal attacks, by no later than
August 23, 2017.
/ / /
/ / /

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2.

Requests for Production of Documents

Precision has not produced a single document in
discovery, responding to each request with a boilerplate
objection or a statement that it has no responsive documents.
These responses are deficient.
As an initial matter, Request for Production of
Documents Nos. 8 through 12 seek information related to
Precision’s financial status.

Such discovery is not proportional

to the needs of this case at this juncture.
26(b)(1).

See Fed. R. Civ. P.

A party is entitled only to discovery that is

proportionate to the needs of the case, considering, among other
things, “the importance of the issues,” “the amount in
controversy,” “parties’ resources,” and the discovery’s
importance in resolving the issues.

Id.

If Marine succeeds on

its claim and is entitled to a monetary judgment against
Precision, additional discovery on Precision’s financial status
may be appropriate at that time.

Accordingly, Precision is not

required to provide supplemental responses to Request for
Production of Documents Nos. 8 through 12.
Regarding the remaining requests, Precision has
asserted boilerplate objections to every Request for Production
of Documents.

See ECF Nos. 82-10; 82-13.

A party responding to

a request for production of documents must “state with
specificity the grounds for objecting to the request, including

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the reasons.”

Fed. R. Civ. P. 34(b)(2)(B).

“[U]nexplained and

unsupported boilerplate objections are improper.”
Sys., Inc., 258 F.R.D. 375, 379 (C.D. Cal. 2009)

Duran v. Cisco
(citing

Burlington N. & Santa Fe Ry. Co. v. United States Dist. Ct. of
Mont., 408 F.3d 1142, 1149 (9th Cir. 2005)).

Here, Precision

provides the same boilerplate objection in response to every
Request for Production of Documents, and many provide nothing
further.

See ECF No. 82-10, Response Nos. 3, 5-12; ECF No. 82-

13, Response Nos. 19-20.

Therefore, Precision’s responses are

insufficient.
Additionally, Precision’s Responses to Requests for
Interrogatories also appear drafted with the intention to prevent
the discovery of relevant information.

In addition to the

boilerplate objections, Precision has claimed that it does not
have a single responsive document to produce, including no copies
of emails it has exchanged with Marine.

See ECF No. 82-10 at 5-6

(asserting the only communications between the parties are “selfserving” letters sent by Marine’s counsel).

Marine has provided

multiple emails it asserts it received from Precision.
e.g., ECF No. 82-16 at 96, 100, 127.

See,

Therefore, Precision’s lack

of production of a single document and its repeated use of
boilerplate objections to requests for production of documents
have thwarted the discovery process.

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Accordingly, the Court ORDERS Precision to provide
Marine supplemental responses to Request for Production of
Documents Nos. 1-7 and 13-20, which refrain from reciting
boilerplate objections, by no later than August 23, 2017.
3.

Requests for Admissions

As with its other responses, Precision has set forth
boilerplate objections to each Request for Admissions, and many
provide nothing further.

See ECF No. 82-11.

Rule 36(a)(5) does

not permit boilerplate objections in response to requests for
admission.

Fed. R. Civ. P. 36(a)(5). “[T]he grounds for

objecting to a request [for admission] must be stated.”

Id.

Therefore, Precision’s Responses to Marine’s Request for
Admissions are each deficient.

Additionally, the Court notes

that Response No. 2 is identical to Response No. 1, which appears
to be a clerical error.
Accordingly, the Court ORDERS Precision to provide
Marine supplemental responses to Request for Admissions that
refrain from reciting boilerplate objections, by no later than
August 23, 2017.
B.

Sanctions
Marine requests sanctions for Precision’s discovery

abuses, specifically “an order striking Precision’s Answer,
entering a default judgment in Marine’s favor and against
Precision in the principal amount of $130,690.00,” and statutory

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attorney fees for the underlying litigation, as well as $15,000
in fees for the instant Motion.

ECF No. 82-1 at 33.

Under Rule

37, When a court grants a motion compelling discovery, the Court
must award reasonable expenses, including attorneys’ fees, to the
prevailing party unless objections to the discovery were
substantially justified or other circumstances make an award of
expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A).

Here, the Court

has granted Marine’s Motion, and therefore must award costs to
Marine unless Precision’s objections were substantially justified
or an award would be unjust.
As discussed, Precision’s discovery responses are
deficient and have obstructed discovery.
Precision are appropriate.

Sanctions against

While Marine requests terminating

sanctions, such sanctions are extreme.

Although courts generally

have wide discretion to impose discovery sanctions, the Court’s
discretion to impose terminating sanctions is more narrow.

To

warrant terminating sanctions, the Court must consider: “(1) the
public’s interest in expeditious resolution of litigation; (2)
the court’s need to manage its dockets; (3) the risk of prejudice
to the party seeking sanctions;” (4) “the availability of less
drastic sanctions,” including whether “the court has considered
lesser sanctions,” whether it has tried the lesser sanctions, and
“whether it has warned the recalcitrant party about the
possibility of case-dispositive sanctions”; and (5) “the public

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policy favoring disposition of cases on their merits.”
Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills,
482 F.3d 1091, 1096 (9th Cir. 2007).

Here, there is no prior

court order compelling Precision’s compliance with discovery
requests, nor has the Court previously warned Precision about the
possibility of case-dispositive sanctions.

Therefore, less

drastic sanctions are available and appropriate.
Accordingly, the Court ORDERS Precision’s counsel, as
the attorney advising Precision’s conduct, to pay Marine $2,500
in sanctions for the multiple discovery abuses, no later than
August 23, 2017.

See Fed. R. Civ. P. 37(a)(5)(A)(when a party’s

conduct has resulted in a discovery motion, permitting a court to
sanction “the attorney advising that conduct”).

Precision’s

counsel is advised that her continued failure to proceed with
discovery in good faith will result in escalating sanctions.
Moreover, failure to comply with the Court’s order or the federal
or local rules regarding discovery will result in more severe
sanctions, such as deemed admission sanctions and terminating
sanctions.

See Fed. R. Civ. P. 37(b)(2)(A)(i) and (iv).
The Court further ORDERS Precision’s counsel to review

the Guidelines of Professional Courtesy and Civility for Hawaii
Lawyers, available at http://www.courts.state.hi.us/legal_
references/rules/rulesOfCourt.

Precision’s counsel shall

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thereafter file with this Court a certificate of compliance, by
no later than August 23, 2017.
CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
1)

The Court ORDERS Precision’s counsel and each

witness noticed by Marine to appear for depositions at a time and
place noticed by Marine within 30 days.

Marine’s counsel shall

provide Precision’s counsel at least two dates of availability
for depositions within the next 30 days, by no later than August
16, 2017.

Precision’s counsel shall select among those and

inform Marine’s counsel by no later than August 17, 2016.

The

deadline for discovery is extended for the limited purpose of
conducting these depositions.

Precision will bear the expense of

the depositions up to $1,500.

Each party shall bear its own

attorneys fees and travel costs.
2)

The Court ORDERS Precision to pay Marine $1,500 in

attorneys’ fees and costs for the missed depositions and for
bringing the Motion to Holding Defendant in Contempt for Failure
to Appear, by no later than August 23, 2017.
3)

The Court ORDERS Precision to provide Marine

supplemental responses to Request for Answers to Interrogatories
Nos. 1-8 and 11-63; Request for Production of Documents Nos. 1-7
and 13-20; and Request for Admissions Nos. 1-63, by no later than
August 23, 2017.

The supplemental responses must refrain from

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boilerplate objections or personal attacks.

Any objections must

be made with specificity and must set forth the grounds in
support.
4) The Court ORDERS Precision’s counsel, as the
attorney advising Precision’s conduct, to pay Marine $2,500 in
sanctions for the multiple discovery abuses, no later than August
23, 2017.

See Fed. R. Civ. P. 37(a)(5)(A)(when a party’s conduct

has resulted in a discovery motion, permitting a court to
sanction “the attorney advising that conduct”).

Precision’s

counsel is advised that her continued failure to proceed with
discovery in good faith will result in escalating sanctions.
Moreover, failure to comply with the Court’s order or the federal
or local rules regarding discovery will result in more severe
sanctions, such as deemed admission sanctions and terminating
sanctions.

See Fed. R. Civ. P. 37(b)(2)(A)(i) and (iv).
5)

The Court ORDERS Precision’s counsel to review the

Guidelines of Professional Courtesy and Civility for Hawaii
Lawyers, available at http://www.courts.state.hi.us/legal_
references/rules/rulesOfCourt.

Precision’s counsel shall

thereafter file with this Court a certificate of compliance, by
no later than August 23, 2017.
6)

The Court DENIES Marine’s request to impose

terminating sanctions against Precision.

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7)

The Court DENIES Marine’s request to initiate

contempt proceedings against Precision and its witnesses.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, AUGUST 16, 2017.

_____________________________
Richard L. Puglisi
United States Magistrate Judge

MARINE LUMBER CO. v. PRECISION MOVING & STORAGE; CIVIL NO. 16-00365
LEK-RLP; MEMORANDUM OPINION AND ORDER ON DISCOVERY ISSUES

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