McDonnel Group, LLC v. Starr Surplus Lines Insurance Company

Filing 35

ORDER AND REASONS: IT IS ORDERED that the #30 motion is GRANTED IN PART AND DENIED IN PART as follows, subject to the order contained herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/3/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE MCDONNEL GROUP, LLC

CIVIL ACTION

VERSUS

NO. 18-1380

STARR SURPLUS LINES INS. CO. ET AL.

SECTION “H”(2)

ORDER AND REASONS ON MOTION
This is a dispute between a general construction contractor and its insurers
concerning the insurers’ alleged failure to pay claims arising from the contractor’s
renovation of the Jung Hotel in New Orleans in 2017. Defendants’ Motion to Compel,
seeking eight forms of relief, is pending before me. Record Doc. No. 30. Plaintiff filed a
timely opposition memorandum. Record Doc. No. 31. Considering the written submissions
of the parties, the record and the applicable law, IT IS ORDERED that the motion is
GRANTED IN PART AND DENIED IN PART as follows, subject to the order contained
herein.
First, defendants seek production of construction schedules identified in their
Request for Production No. 34 in native format. Plaintiff asserts that it has produced all
responsive materials in PDF format. The difficulty with this issue arises from plaintiff’s
failure to comply with the applicable provisions of Rule 34. Fed. R. Civ. P. 34(b)(1)(C)
provides that a requesting party “may specify the form or forms in which electronically
stored information ("ESI") is to be produced.” Defendants did so in Request No. 34,
specifying production of “all construction schedules for the Project in their native format
(as native files).” Record Doc. No. 30-2 at p. 16 (emphasis added). As the responding party,

plaintiff was required to “state with specificity the grounds for objecting to the request,
including the reasons.” (emphasis added). In addition, “The response may state an objection
to a requested form for producing electronically stored information. If the responding party
objects to a requested form . . . the party must state the form or form it intends to use.”Fed.
R. Civ. P. 34(b)(2)(D) (emphasis added).
In their written response to Request No. 34, defendants complied with none of these
requirements. Instead of asserting specific objections or stating that it intended to produce
these clearly relevant and discoverable materials in some form other than the requested
native format, defendants asserted a mindlessly deficient, boilerplate, stonewalling
objection that the request was “vague, overly broad, and not reasonably calculated to lead
to the discovery of admissible evidence.” Record Doc. No. 30-2 at p. 16.
By failing to object to production in native format, defendants waived that objection.
Express Lien, Inc. v. National Ass’n of Credit Mgmt, Inc. 2014 WL 12767814, at *3 (E.D.
La. Mar. 20, 2014)(Knowles , M.J.). See Poulos v. Naas Foods, Inc., 959 F.2d 69, 74 (7th
Cir. 1992) (party “waived any objection to production by failing to object when disclosure
was due”); Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 10, 12-13 (1st Cir. 1991)
(objections to requests for production were waived by failure to make timely objections);
McLeod, Alexander, Powell & Apffel v. Quarles, 894 F.2d 1482, 1484 (5th Cir. 1990)
(vague objections lacking in specificity held invalid); In re United States, 864 F.2d 1153,
1156 (5th Cir. 1989) (“[A]s a general rule, when a party fails to object timely to
interrogatories, production requests, or other discovery efforts, objections thereto are
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waived.”); accord Autotech Techs. Ltd. P’ship v. Automationdirect.Com, Inc., 236 F.R.D.
396, 398 (N.D. Ill. 2006); Brown-Stahlman v. Charter Trust Co., No. 04-CV-322-SM, 2006
WL 680874, at *1 (D.N.H. Mar. 16, 2006); Banks v. Office of Senate Sgt.-at-Arms, 222

F.R.D. 7, 21 (D.D.C. 2004). Moreover, the need for production in the requested,
unobjected-to native format, with its associated metadata, is self-evident in this instance.
Metadata provides information such as "the author, date/time of creation and date
modified." Express Lien, Inc, 2014 WL 12767814, at *2. Such information in the
construction schedule context, with its frequent alterations, change orders, and time
sensitive but often disturbed deadlines, is relevant. The PDF files chosen by plaintiff for
production are merely pictures of the materials that do not provide metadata.
Plaintiff offers no proof that production of the requested construction schedules in
native format would be unduly burdensome or expensive or that native files are not the way
it ordinarily maintains the construction schedules. Instead, it relies upon Rule
34(b)(2)(E)(iii), which provides that “[a] party need not produce the same electronically
stored information in more than one form.” Plaintiff dispossessed itself of this protection
when it failed to object to production of its native files in its written response or state in its
written response that it would produce all requested materials in PDF form, as required in
Rule 34(b)(2)(D). To permit a responding party, in the face of a request that ESI be
produced in a particular form, arbitrarily to choose some other form, would disrupt and
undermine the orderly request/response/objection/confer structure and requirements of the
remainder of the Rule concerning ESI. For these reasons, the motion is granted as to
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Request No. 34. Plaintiff must produce all native files sought in this request, together with
a new written response, signed pursuant to Fed. R. Civ. P. 26(g), clearly stating that it has
done so.
Defendants’ second request for relief relates to Request No. 31. Again, plaintiff’s
vague written response asserted both a meritless prematurity objection and a statement that
it was attempting to obtain the requested materials. Even the argument in its opposition
memorandum is confusing as to what responsive materials plaintiff has produced and what
materials do not exist. It says in one breath that “there simply is not a written contract” with
Calderara responsive to this request, while in another breath it asserts that it has produced
information about its relationship with him. Record Doc. No. 31 at p. 7. Accordingly, the
motion is granted in that plaintiff must provide a new written response to Request No. 31,
clearly stating either that it has no non-privileged responsive materials in its possession,
custody or control, or that it has produced all non-privileged responsive materials and
identify those responsive materials by Bates number or other specific identifier. If plaintiff
is withholding any materials responsive to this request or any other request on privilege or
work product grounds, it must provide the log, as required by Fed. R. Civ. P. 26(b)(5).
The motion is also granted as to Requests for Production Nos. 12, 13, and 14 in that
the current written responses are deficient and fail to comply with Fed. R. Civ. P. 34(b)(2)
because they insure neither the requesting parties nor the court that all responsive nonprivileged materials have been produced. Plaintiff must provide new written responses to
these requests, clearly stating that it has produced all non-privileged responsive materials
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in its possession, custody or control, signed pursuant to Fed. R. Civ. P. 26(g), and identify
those responsive materials by Bates number or other specific identifier. If plaintiff is
withholding any materials responsive to these requests on privilege or work product
grounds, it must provide the log required by Fed. R. Civ. P. 26(b)(5).
As noted above, the motion is granted as to the request for a privilege log. Such a
log as to all materials being withheld on privilege or work product grounds is required by
Fed. R. Civ. P. 26(b)(5).
The motion is granted as to the request to supplement the responses with a search
for emails, but only as provided herein. It appears that the parties have reached an
agreement as to this supplemental search for emails and that supplementation is under way,
see Record Doc. No. 31 at p. 8, although they continue to disagree about whether it has
been followed. IT IS ORDERED that this agreement must be complied with, the
supplemental email search and related production must be completed by the date provided
below, and defendants must provide an affidavit clearly stating that they have done so.
Finally, the motion is denied insofar as it seeks an award of attorney’s fees and other
expenses incurred in connection with this motion. Substantial production in response to the
requests has in fact been made. The principal problem with plaintiff's written responses is
deficiency and obfuscation in the manner in which the responses have been made. Under
these circumstances, I find that an award of attorneys fees and expenses in connection with
this motion would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(iii).

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All additional written responses ordered herein, together with actual production of
all responsive materials, the required privilege log, and the affidavit, must be provided by
plaintiff to defendants no later than October 17, 2018.

3rd
New Orleans, Louisiana, this __________day of October, 2018.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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