Skepnek et al v. Roper & Twardowsky, LLC et al

Filing 175

ORDER granting 170 plaintiffs' second motion to enforce the court's October 3, 2013 discovery order. Signed by Magistrate Judge James P. O'Hara on 1/27/2014. (mb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIAM J. SKEPKEK and
STEVEN M. SMOOT,
Plaintiffs,
v.

Case No. 11-4102-KHV

ROPER & TWARDOWSKY, LLC and
ANGELA ROPER,
Defendants.

ORDER
This case involves a contractual dispute concerning an attorney-fee sharing
agreement between plaintiffs, William J. Skepnek and Steven M. Smoot, and defendants,
Roper & Twardowsky, LLC and Angela Roper. This matter is currently before the
undersigned U.S. Magistrate Judge, James P. O’Hara, on plaintiffs’ second motion to
enforce the court’s October 3, 2013 discovery order (ECF doc. 170). Specifically,
plaintiffs seek to compel defendants to produce missing attachments to e-mails that have
already been produced.

Defendants oppose plaintiffs’ motion, asserting defendants

waived their right to object to the form of production. For the reasons discussed below,
plaintiffs’ motion is granted.
First, defendants argue plaintiffs’ motion should be denied because plaintiffs
failed to meet and confer with defendants. The Federal Rules of Civil Procedure and this
district’s local rules require a moving party to confer with opposing counsel about the
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discovery dispute before filing a motion. Fed. R. Civ. P. 37(a)(1) requires that a motion
to compel include “a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action.”

This district’s local rules expand on the

movant’s duty to confer, stating that “a ‘reasonable effort’ to confer means more than
mailing or faxing a letter to the opposing party.”1 It requires the parties in good faith to
“converse, confer, compare views, consult and deliberate, or in good faith attempt to do
so.”2
Here, the parties held a telephone conference and exchanged correspondence
aimed at resolving the discovery dispute without judicial intervention. Plaintiffs have
made a reasonable effort to confer with defendants regarding the production of
attachments to e-mails. Therefore, plaintiffs have satisfied Fed. R. Civ. P. 37(a)(1) and
D. Kan. R. 37.2.
In its October 3, 2013 discovery order, the court ordered defendants to produce
“all internal communications among defendants … that pertain to Requests for
Production Nos. 6, 7, 10 and 11,” and “all electronic communications between Angela
Roper, Kenneth Thyne or anyone else associated with Roper & Twardowsky, LLC and

1

D. Kan. R. 37.2.

2

Id.

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the fifteen individuals listed by defendants in their motion.”3 Plaintiffs contend that
defendants failed to produce attachments to the electronic communications they
produced.

Plaintiffs suggest that if defendants had produced the electronic

communications in their native format, rather than PDF format, the attachments would
have been with each e-mail. Regardless, plaintiffs assert that the attachments are an
indistinguishable part of the communications the court ordered defendants to produce on
October 3, 2013, and as such, need to be produced forthwith.
Defendants respond that they have always produced documents, including e-mail
communications, in PDF format. Defendants assert that if plaintiffs wanted native format
of production then they should have raised that issue at the outset. Therefore, defendants
argue plaintiffs waived their right to take issue with the format of their production and
furthermore, it would be duplicative and burdensome to comply with plaintiffs’ request.
When the parties met and conferred, defendants claimed that the e-mail server
search was not capable of producing the attachments to the e-mails and asked that
plaintiffs request each specific attachment they seek.4 It is unclear why defendants claim
that it is impossible to include every attachment to the produced e-mails but somehow,
they are able to produce specific attachments upon request.

3

ECF doc. 129 at 11-12.

4

ECF doc. 170 at 2-3.

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Defendants also argue plaintiffs did not originally specify that electronic
documents should be produced in native format and “to now request at this late juncture
is duplicative and burdensome.”5

It is not duplicative for defendants to produce

attachments to e-mails that have not yet been produced. Furthermore, defendants offer
no support for their assertion that producing these attachments would be overly
burdensome.
The real issue before the court is not the format of defendants’ production. Rather,
plaintiffs seek to compel defendants to produce all attachments to e-mails that defendants
have already produced. Plaintiffs point out that one way defendants could do that is by
producing the e-mails in their native format. Plaintiffs do not demand that defendants reproduce all electronic communications in their native format. Additionally, plaintiffs
never suggest that they are opposed to defendants manually extracting the attachments
and producing them in PDF format.
Defendants do not have the leisure of picking and choosing what responsive
documents to produce.

The court ordered defendants to produce all internal

communications among defendants that pertain to Requests for Production Nos. 6, 7, 10
and 11 and all electronic communications between Angela Roper, Kenneth Thyne or
anyone else associated with Roper & Twardowsky, LLC and the fifteen individuals listed
by defendants in their motion to compel. To the extent defendants have failed to comply

5

ECF doc. 174 at 3.

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with this court’s directive by failing to produce attachments to responsive e-mails, they
are ordered to do so.
Plaintiffs ask that the court address under Fed. R. Civ. P. 37(b) defendants’ failure
to produce documents as instructed in the court’s orders of October 3, 2013, and
November 18, 2013. Under Rule 37(b), if a party fails to obey an order to provide
discovery, the court “must order the disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including attorney’s fees, caused by the failure,
unless the failure was substantially justified or other circumstances make an award of
expenses unjust.”6
Defendants offer no excuse for their failure to produce responsive documents
except that plaintiffs never requested the documents in native format. Plaintiffs simply
want the documents that the court ordered defendants to produce, regardless of format.
Because plaintiffs failed to specify a form for producing the electronically stored e-mails
and attachments, defendants were required under Rule 34(b)(2)(E)(ii) either to produce
the e-mails and attachments in the form (1) in which they are ordinarily maintained, or
(2) “in a reasonably usable form.” Defendants failed to produce the attachments at all.
Defendants also failed to show PDF format is the form in which their e-mails and
attachments are ordinarily maintained.

6

Fed. R. Civ. P. 37(b)(2)(C).

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Defendants were already specifically warned that “further noncompliance with
orders of the court or discovery obligations may result in harsher sanctions, including
striking defenses and default judgment.”7 Yet, another motion is before the court for
defendants’ failure to comply with its discovery obligations. This discovery dispute is an
example of one which could have been avoided had the parties adequately conferred at
their Fed. R. Civ. P. 26(f) conference regarding production of electronically stored
information (“ESI”). Because there is no evidence that defendants purposefully produced
e-mails in a format that excluded attachments and since both parties are at fault to some
degree for failing to adequately confer early on regarding the production of ESI, the court
will not impose any sanctions under Rule 37(b).
IT IS THEREFORE ORDERED:
1.

Plaintiffs’ second motion to enforce the court’s October 3, 2013 order

(ECF doc. 170) is granted. Defendants shall produce all responsive documents by
February 14, 2014. Defendants’ request that plaintiffs pay for defendants’ time in
producing the attachments is denied.
IT IS SO ORDERED.

7

ECF doc. 139 at 11.

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Dated January 27, 2014, at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U. S. Magistrate Judge

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