Mr. Mudbug, Inc. v. Bloomin' Brands, Inc.
ORDER & REASONS: ORDERED that 45 Motion to Compel Discovery Responses is GRANTED IN PART and DENIED IN PART. FURTHER ORDERED that the motion is GRANTED to the extent that the Plaintiff must identify the Bates Numbers of responsive documents for each request. IT IS FURTHER ORDERED that the Plaintiff must identify responsive documents within twenty-one (21) days of the signing of this order. IT IS FURTHER ORDERED that the motion is DENIED to the extent that the Defendant seeks an order from the Court for the electronically stored information to be produced in another format. Signed by Magistrate Judge Karen Wells Roby. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MR. MUDBUG, INC.
BLOOMIN’ BRANDS, INC.
SECTION: “H” (4)
ORDER AND REASONS
Before the Court is a Motion to Compel (R. Doc. 45) filed by the Defendant, Bloomin’
Brands, Inc. (“Defendant”), seeking an order from the Court to compel the Plaintiff, Mr. Mudbug,
Inc. (“Plaintiff”), to amend its discovery responses. The motion is opposed. R. Doc. 57. The motion
will be heard on January 11, 2017.
This action was removed from the 24th Judicial District Court on October 19, 2015. R. Doc.
1. The Plaintiff alleges that during late 2007 to early 2008 it entered into a contractual relationship
with the Defendant under which the Defendant ordered food products and services from the
Plaintiff. R. Doc. 6, p. 2. In 2008, the Plaintiff alleges that the Defendant required the Plaintiff to
expand its facilities in order to handle the increased volume of food product and service requests.
R. Doc. 6, p. 3. In 2011, after the Defendant allegedly awarded the Plaintiff another contract for
salad dressing, which resulted in the Plaintiff embarking on another $16.8 million expansion. Id.
In the following years, the Defendant began to allegedly divert business from the Plaintiff,
eventually withdrawing from the salad dressing contract in its entirety by 2013. Id. at p. 4. By
December of 2014, the business relationship between the parties had terminated in its entirety. Id.
As a result in 2015, the Plaintiff filed a state court petition for an amount on an open account on
the Plaintiff. The Defendant removed and asserted a counterclaim of breach of contract to supply
quality products. The Plaintiff then amended its complaint to add claims for breach of contract and
detrimental reliance. R. Doc. 6. The Plaintiff also asserted bad faith claims, but those claims have
been dismissed. See R. Doc. 30.
At this time, the Defendant has filed a motion to compel. The Defendant initially served
two sets of discovery requests on November 6, 2015 and January 8, 2016. R. Doc. 45-1, p. 2. The
Plaintiff provided responses on December 6, 2015 and February 15, 2016, respectively. Id. at p. 3.
After Defendant substituted counsel on August 26, 2016, Defendant’s current counsel noted a
number of deficiencies. In particular, the Defendant asserts that the Plaintiff has not identified
responsive documents for each request and that the Plaintiff has not produced ESI information in
accordance with Federal Rule of Civil Procedure 34(b)(2)(E). R. Doc. 45-1, p. 3-5. The Defendant
states that it attempted to resolve these matters with the Plaintiff by sending a letter on November
7, 2016, calling on November 14, 2016, and sending an additional email on November 14, 2016.
Id. at p. 3. However, the Defendant states that the Plaintiff did not respond to any of the
Defendant’s request for telephone conferences to discuss these matters. As such, the Defendant
filed the instant motion. Id.
In response to this motion, the Plaintiff argues that the Defendant did not satisfy its
obligation to meet and confer because it argues that Plaintiff’s counsel informed Defendant that it
need to defer any discovery conference until after consulting with the Plaintiff about the
voluminous number of documents eligible for discovery. R. Doc. 57, p. 2. The Plaintiff also argues
that because the motions come nearly one year after the discovery responses were served that the
motion is untimely. Id. at p. 3. The Plaintiff also states that it has addressed the Defendant’s
concern regarding the production of ESI as it has provided the Defendant with a thumb drive that
can be fully utilized by the Defendant. Id. at p. 2-3.
Standard of Review
Discovery of documents, electronically stored information, and things is governed by
Federal Rule of Civil Procedure 34. Rule 34 allows a party to request the production of “any
designated documents or electronically stored information” or “any tangible things.” Id. Similarly,
Rule 33 allows a party to serve another party written interrogatories which “must, to the extent it
is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).
Both Rule 33 and 34 allow a party to ask interrogatories and request production to the extent of
Rule 26(b). Fed. R. Civ. P. 33(a)(2); 34(a).
Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense. . . . .” Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not
be admissible in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be
“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 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.” Id.
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less
burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity
to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs
its likely benefit.
Federal Rule of Civil Procedure 37 provides sanctions for failure to cooperate in discovery.
Rule 37(a) allows a party in certain circumstances to move for an order compelling discovery from
another party. In particular, Rule 37(a)(3)(b)(iii)-(iv) allows a party seeking discovery to move for
an order compelling an answer or production of documents where a party “fails to answer an
interrogatory” or “fails to produce documents.” An “evasive or incomplete” answer or production
is treated the same as a complete failure to answer or produce. Fed. R. Civ. P. 37(a)(4).
In addition to alleging that the responding party has failed to properly cooperate with
discovery, a motion to compel under Rule 37(a) must also “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.” Fed. R. Civ. P. 31(a)(1).
The Defendant has filed the instant motion to compel seeking an order requiring the
Defendant to identify the documents responsive to each discovery request and to produce any ESI
in a proper format. R. Doc. 45. The Court will address both.
First, the Defendant argues that the Plaintiff should answer what documents are responsive
to each request for production of documents. R. Doc. 45. In its response, the Plaintiff merely
referred to “documents produced herewith” without specifically identifying the documents
responsive to each particular request. See R. Doc. 45-4.
The Court grants the motion to compel as to this request. It is undoubtedly the case that the
Defendant is entitled to have responsive documents identified for each of its requests for
production of documents. See, e.g. , Rosalez Funez v. E.M.S.P., LLC, No. 16-1922, 2016 WL
5337981, at *3 (E.D. La. Sept. 23, 2016) (“Federal Rule of Civil Procedure 37(a)(4) states that
and evasive answer is treated the same as not responding to the request. Here, by dumping more
than one thousand documents on the Plaintiffs, the Defendants have not properly responded to the
individual requests for production. Rather, the Defendants should have attempted to identify which
documents were responsive to which requests.”); see also Bacharach v. SunTrust Mortg., Inc., No.
14-0962, 2015 WL 1843007, at *4 (E.D. La. Apr. 22, 2015). As the Court discussed during oral
argument, the Plaintiff must identify the Bates Numbers of the documents that are responsive to
each particular request for production.
Second, the Defendant also argues that the Plaintiff has not properly produced ESI
documents. R. Doc. 45-1, p. 5. As an initial matter, the Court notes that the Defendant is entitled
to have the ESI documents produced in either the way that it is maintained in the normal course of
business or in a reasonably usable form. Federal Rule of Civil Procedure 34 allows a party to
request a particular format for the production of ESI. See In re Porsche Cars North America, Inc.
Plastic Coolant Tubes Products Liability Litigation, 279 F.R.D. 447, 449 (S.D. Ohio 2012)
("Pursuant to Rule 34(b)(1)(C), a requesting party is entitled to specify the form or forms in which
electronically stored information is to be produced.”). Here, the Defendant appears to have made
competing requests for the format of the electronic information. In one instance, the request asks
for electronic information to be produced in the form in which it was maintained in the usual course
of business or activity. R. Doc. 45-3, p. 3. Later, in the same request, the Defendant ask that,
pursuant to Rule 34, all documents be produced in Adobe (PDF) and/or Word format. Id. at p. 7.
The Defendant now seeks the production of document in their native format. R. Doc. 45-1, p. 6.
In response, the Plaintiff did produce the documents in .pdf form. As such, the Plaintiffs has
complied with the request and produced the documents in .pdf format. The Defendant’s argument
that the Plaintiff’s response is not compliant with the rule is defeated by the Defendant’s own
request, which Rule 34 allows. The Defendant was “the master of its production requests; it must
be satisfied with what it asked for.” Autotech Technologies Ltd. Partnership v.
Automationdirect.com, Inc., 248 F.R.D. 556, 560 (N.D. Ill. 2008).
Furthermore, to the extent that the Defendant argues that the Plaintiff should have produce
metadata, the Court also disagrees. The Defendant did not make a request for metadata in its
request for production of documents. “Ordinarily, courts will not compel the production of
metadata when a party did not make that a part of its request.” Id. at 559 (citing Wyeth v. Impax
Labs., Inc., 248 F.R.D. 169, 170-72 (D. Del. 2006)). As there was no request for metadata, the
Court will not now order its production. Again, the Defendant was “the master of its production
requests; it must be satisfied with what it asked for.” Id. at 560.
Finally, the Court also briefly notes Plaintiff’s arguments concerning the meet and confer
requirement as well as the timeliness argument. As to the meet and confer requirement, the Court
is satisfied with the Defendant’s attempts. The Defendant made a number of attempts in November
2016 to contact the Plaintiff to establish a time in which to confer. However, the Plaintiff did not
respond to those discovery requests or attempted to delay those requests further. Moreover, the
Defendant waited until December 6, 2016 to file the instant motion, giving the Plaintiff plenty of
time to respond to the Defendant’s letters/emails.
As to the Plaintiff’s timeliness argument, the Plaintiff cites Wells v. Sears Roebuck & Co.,
203 F.R.D. 240 (S.D. Miss. 2001) for the argument that “if the conduct of a respondent to discovery
necessitates a motion to compel, the requester of the discovery must protect himself by timely
proceeding with the motion to compel.” However, that case is inapposite. In Wells, the Court was
considering a motion to continue the discovery deadline. While the Court noted that the Plaintiff
had acted dilatorily in filing a motion to compel which eventually led to the request for an
extension of the discovery deadline, the Court does not suggest that the motion to compel was
itself flawed because it was filed months after the discovery response was received. Id. at 241.
Here, the Defendant has filed well before the discovery deadline. In fact, the discovery period did
not technically open until early November of 2016 when the parties engaged in a Rule 26(f)
discovery conference and subsequent scheduling conference. Moreover, the present motion will
not necessitate any alteration of the current deadline set for November 3, 2017. As such, the Court
also rejects this argument.
IT IS ORDERED that Motion to Compel Discovery Responses (R. Doc. 34) is
GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the motion is GRANTED to the extent that the
Plaintiff must identify the Bates Numbers of responsive documents for each request.
IT IS FURTHER ORDERED that the Plaintiff must identify responsive documents
within twenty-one (21) days of the signing of this order.
IT IS FURTHER ORDERED that the motion is DENIED to the extent that the
Defendant seeks an order from the Court for the electronically stored information to be produced
in another format.
New Orleans, Louisiana, this 11th day of January 2017.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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