RPM Pizza, LLC v. Argonaut Great Central Insurance Company

Filing 184

PARTIAL RULING granting in part 161 Second MOTION to Compel filed by Domino's Pizza LLC. Signed by Magistrate Judge Stephen C. Riedlinger on 11/15/2013. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

RPM PIZZA, LLC, D/B/A
DOMINO’S PIZZA

CIVIL ACTION

VERSUS

NUMBER 10-684-BAJ-SCR

ARGONAUT GREAT CENTRAL
INSURANCE COMPANY
PARTIAL RULING ON DOMINO’S SECOND MOTION TO COMPEL DISCOVERY
Before the court is Domino’s Pizza, LLC’s Second Motion to
Compel the Production of Documents and Interrogatory Responses.
Record document number 161.

The motion is opposed by defendant

Argonaut Great Central Insurance Company.1
Plaintiff-in-intervention

Domino’s

Pizza,

LLC

(hereafter,

“Domino’s”), filed this second motion to compel to essentially
renew their previous motion to compel.

According to Domino’s, the

defendant’s October 11 production of 555 documents (1) included 520
documents that have previously been provided to Domino’s in one
form or another, (2) did not provide answers to any interrogatories
at issue - Interrogatory Numbers 2, 3 and 5, (3) did not contain
any documents responsive to Requests for Document Numbers 5, 7, 8
and 9, and (4) although Argonaut produced documents responsive to
Requests for Production Numbers 4, 16 and 17, it is highly unlikely

1

Record document number 168.
Domino’s filed a reply
memorandum. Record document number 178. Argonaut filed a surreply memorandum. Record document number 182.

that all documents responsive to these requests were produced.2
After Domino’s filed this renewed motion on October 29, and as
advised by Argonaut at the status conference held on October 31,
Argonaut

produced

several

more

batches

of

documents

and

supplemental answers to Domino’s Interrogatory Numbers 2, 3, 4 and
5.3

Argonaut argued that based on these supplemental answers, its

production of thousands of documents since October 11, and the
production of its privilege log,4 the present motion should be
denied.

Argonaut also sought an award of expenses and fees

incurred in opposing the motion.
Four days after Argonaut filed its opposition, Domino’s filed
a reply memorandum in which Domino’s essentially asserted that its
motion to compel is not moot.

In this reply memorandum Domino’s

addressed the specific areas which it claims that Argonaut’s
discovery responses remain deficient, and also raised issues with
regard to Argonaut’s privilege log and the format of its document
production.

Argonaut then filed a sur-reply memorandum to address

Domino’s claim that certain discovery responses, the privilege log
and

the

format

of

the

documents

it

produced

continue

to

be

deficient.

2

Record document number 161-1, Supporting Memorandum, pp. 2

and 5.
3

Record document numbers 168-1 and 168-2, Argonaut Exhibits
A and B.
4

Record document number 168-3, Argonaut Exhibit C.
2

It is not necessary, nor is it advisable given the time
constraints in this case, to go into a detailed review of the
background of this discovery dispute or set forth every argument
discussed in the parties’ memoranda.

All of the arguments and

submissions of the parties have been reviewed and considered. This
partial ruling addresses two aspects of the discovery dispute discovery of privileged/protected documents and the format for
document production - and is being issued first in order to hasten
the completion of fact discovery.

The remaining issues will be

addressed in a supplemental ruling.
Assertions of Privilege/Privilege Log
Argonaut attached as Exhibit C to its opposition a copy of its
privilege log relating to Domino’s and RPM’s discovery requests.
Argonaut acknowledged that the log does not contain as much detail
as it should, but argued that this is the result of unexpected time
constraints which forced a review of thousands of documents on
short notice. In its sur-reply memorandum Argonaut reiterated this
argument

and

submitted

an

updated

privilege

log.5

Argonaut

defended the length of the log and the lack of details by pointing
to the “tight deadlines,” Domino’s unreasonably broad discovery
requests,

and

privileges.

5

Domino’s

continuing

claims

regarding

waiver

of

Argonaut also noted that unexpected technical issues

Record document number 182, Argonaut Exhibit A.
3

with electronic discovery slowed the process of finishing the log.
Therefore, Argonaut requested it be given until November 19, 2013
to complete the privilege log.
Domino’s raised several arguments with regard to Argonaut’s
assertions of privilege and its privilege log: (1) Argonaut’s
privilege log is deficient because it does not describe the
documents with enough detail to determine whether the assertion of
the privilege is valid; (2) the notations on the log that the
documents were withheld because they are “NRC” (not reasonably
calculated), or “CPTS” (confidential, proprietary and/or trade
secret) are not recognized privileges and not a basis to withhold
production of relevant documents; (3) because Argonaut stated in
its discovery responses that it will rely on an advice of counsel
defense, Argonaut waived the attorney client privilege as to any
communications related to that advice; and, (4) there is no basis
to limit the scope of Argonaut’s waiver given its initial and
supplemental answers to Interrogatory Number 5 in which Argonaut
failed to specify the defenses on which it would rely on that
advice.6

Domino’s stated that to the extent Argonaut withheld and

listed documents that are drafts of pleadings or correspondence

6

Argonaut
answered
that
it
had
already
produced
communications between it and Durham related to the defense, and
would be producing additional documents, including claim file notes
that would provide information that completely answers this
interrogatory. Record document number 168-2, pp. 5-6.
4

with litigation counsel,7 it is not seeking production of those
documents.
Argonaut’s

attempted

justification

for

its

lengthy

and

deficient privilege log are vague, unsupported and unpersuasive.
Argonaut’s primary argument is that unexpected time constraints and
tight deadlines forced it to have to review thousands of documents
with little notice in a short period of time. Presumably, Argonaut
is referring to the order issued on October 7, 2013 that set the
case for a pretrial conference and trial on November 13 and
December 16, 2013.8
six weeks.

However, these circumstances arose in the last

The record does not support finding that this is what

caused Argonaut to have to review thousands of documents in a short
period of time.

Rather, the record demonstrates that the cause of

Argonaut having to review and produce thousands of documents on
short notice and in a short period of time is Argonaut’s own
failure to take prompt, appropriate actions when it was served with
the Domino’s discovery requests on April 19, 2013.
When Argonaut provided answers and responses on May 19, 2013,
as to certain requests for production it responded that it would
produce documents.

Yet, as of the date Domino’s filed its Motion

7

Domino’s stated that it previously made this clear to
Argonaut, citing to record document number 129-6, Exhibit E.
Record document number 178, Domino’s Reply Memorandum, p. 2.
8

Record document number 145. On a joint motion this order
was modified by the district judge setting the pretrial and trial
date to January 17 and February 11, 2014, respectively.
5

to Compel three months later on August 20, Argonaut had not
produced a single document and maintained that it was not required
to provide a privilege log.

Argonaut, in fact, waited until

October 11, 2013, approximately six weeks after the motion was
filed, to provide its initial document production of 555 pages.9
Even then no privilege log or information about a privilege log was
provided by Argonaut.

Now, in response to the present Motion to

Compel, Argonaut finally produced a privilege log on November 7 and
thousands of new documents.10

This is well over six months after

Argonaut was served with the discovery requests.
Argonaut also claimed that its delay and difficulty in timely
and

properly

responding

to

the

discovery

was

caused

by

extremely broad nature of the requests and locating documents.

the
In

addition, Argonaut stated that it had unexpected technical issues
that

caused

delay,

but

did

not

give

nature/extent of the technical problems.

any

details

about

the

These explanations are

not credible given that Argonaut did not earlier bring these issues
to the forefront by filing a motion for extension of time to
respond

to

the

discovery

or

a

motion

for

protective

order.

Therefore, the record supports the conclusion that if Argonaut was

9

Record document number 157, Argonaut Sur-reply Memorandum,
Exhibit A.
10

In its sur-reply memorandum filed November 13, Argonaut
stated that it has not produced over 11,000 pages of documents to
Domino’s and RPM. Record document number 182, p. 1.
6

unable to timely provide a privilege log that complies with Rule
26(b)(5), such inability was caused by its own actions.
In these circumstances the court finds: (1) there is no basis
to give Argonaut additional time to provide a more complete
privilege log; and, (2) Argonaut has waived its claim of attorney
client privilege and/or work product protection as to any documents
listed as withheld on these grounds in its privilege logs.

This

finding of waiver does not apply to any documents listed which
Domino’s stated that it is not seeking production of - drafts of
pleadings and correspondence with litigation counsel related to the
present case.

Finally, regardless of the waiver, given that the

parties have now agreed to a protective order11 any documents on the
privilege log where the privilege listed is CPTS or NRC/CPTS must
be produced by Argonaut.
Format of ESI Document Production
Domino’s document requests contained Instruction Number 5,
designating the forms it wanted electronically stored information
(ESI) to be produced, and the metadata, if available for each
electronic document produced.12 Argonaut’s November 7 supplemental
responses for the first time included a specific objection to this
instruction:

11

Record document numbers 167 and 170.

12

Record document number 178, pp. 6-7.
7

Argonaut objects to paragraph 5 of Domino’s Pizza”
Instructions and RPM’s Instructions to the extent those
instructions require that the documents be produced in a
particular format or manner other than the format or
manner in which the above documents have been produced;
and to the extent those Instructions require Argonaut to
provide the specified metadata, assuming it is even
available.13
Domino’s
instructions,
metadata.

stated
and

that

Argonaut

produced

documents

did
in

not
.pdf

follow
format

these
and

no

Domino’s communicated with Argonaut on this issue on

October 31 and November 1, 2013 and requested that Argonaut follow
Instruction Number 5 when it produced any additional documents.
According to Domino’s, Argonaut did not respond to these requests
and in its

November 7 production maintained the same format and

included an objection to Instruction Number 5.
that

Argonaut

has

waived

any

objection

to

Domino’s argued
its

specific

format/metadata instruction by not asserting it timely, that is,
not raising it in its initial responses but waiting almost six
months to assert it.
Argonaut argued that Domino’s position on the format of ESI
should be rejected for the following reasons: (1) a general
objection in its initial responses included an objection to this
instruction; (2) Domino’s waived its format objection by not
objecting to Argonaut’s October 11 production of documents in .pdf
format without metadata; (3) even if not waived, Domino’s failed to

13

Record document number 168-1, Argonaut Exhibit A.
8

show why it is essential for Argonaut to produce ESI according to
Instruction Number 5 when Argonaut maintains its documents in .pdf
form, which is a standard document format that is either already
searchable or can be easily made fully searchable.
Again, Argonaut’s arguments are unsupported and unpersuasive.
Under Rule 34(b)(2)(E), Fed.R.Civ.P. a party may specify a form for
production of ESI.

Domino’s did that in its April 19 discovery

requests by including Instruction Number 5.

Argonaut waived any

objection to this instruction by not asserting it timely - not
making the objection until it provided thousands of document in a
supplemental response on November 7. Argonaut’s attempt to rely on
the general objection included in its May 19 discovery responses is
unavailing.
interpreted

This
to

general

encompass

a

objection
specific

cannot
objection

reasonably
to

be

Domino’s

Instruction Number 5.
Argonaut’s also argued that Domino’s waived any objection to
the format of its document production by not raising it when the
first group of 555 pages was produced on October 11.

Domino’s

exhibits, however, demonstrate that Domino’s did bring the failure
to comply with Instruction Number 5 to Argonaut’s attention after
the initial production on October 11 and again both before and
after Argonaut began producing additional documents on November 1.14

14

See, record document number 178-1, Domino’s Exhibits 1 and
2(emails dated October 31 and November 1 from Beth Levene to Larry
(continued...)
9

Argonaut’s waiver argument is without merit.
Finally, Argonaut argued that even if Domino’s did not waive
its right to object to the format, it has not shown why it is
necessary for Argonaut to produce documents in a format that
complies with Instruction Number 5.
Domino’s is not required to do so.

The simple answer is that
As provided under Rule

34(b)(2)(E), Domino’s properly included an instruction specifying
the form for producing ESI and Argonaut waived any objection by not
asserting it timely.

Moreover, Argonaut did not provide any

information or even argue that it is unduly burdensome or expensive
for it to comply with Domino’s instructions for production of ESI.15
Domino’s motion to compel Argonaut to comply with Instruction
Number 5 will be granted.
Conclusion
Accordingly, plaintiff-in-intervention Domino’s Pizza, LLC’s
Second

Motion

to

Compel

the

Production

of

Documents

and

Interrogatory Responses is granted, in part, as follows.
Argonaut has waived its claims of attorney client privilege

14

(...continued)
Gramovot and David Strauss).
15

While it may be true that Argonaut does not maintain its
documents in .tif format, that is not the same as being unable to
produce them in that format.
Had Argonaut made a timely and
specific objection to producing ESI in .tif format, it is it likely
that the parties could have resolved the issue, or the court could
have resolved it for them, long ago.
10

and/or work product protection as to any documents withheld on
these grounds and listed on its privilege logs, and must produce
the documents by November 22, 2013.
Argonaut shall comply with Instruction Number 5 included in
Domino’s First Set of Requests for Production of Documents served
by Domino’s on April 19, 2013.
previously

produced

Instruction Number 5.

by

Argonaut

This applies to all documents
that

did

not

comply

with

Any documents that must be re-produced in

order to comply with this ruling, must be produced by November 22,
2013.
Baton Rouge, Louisiana, November 15, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

11