Forever Green Athletic Fields, Inc. et al v. Babcock Law Firm, LLC et al

Filing 83

RULING granting 72 Motion to Compel. Plaintiffs discovery responses shall be produced according to the instructions provided. Defendants are ORDERED to file an affidavit of reasonable expenses incurred in bringing this Motion, including attorney s fees, no later than 8/6/2014 and Plaintiffs may submit a response to Defendants affidavit within 7 days of its filing. Plaintiffs response shall be limited to the reasonableness of the amount of fees requested. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 7/30/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FOREVER GREEN ATHLETIC
FIELDS, INC, et al.

CIVIL ACTION

VERSUS

NO. 11-633-JJB-RLB

BABCOCK LAW FIRM, LLC, et al.

RULING ON DEFENDANTS’ MOTION TO COMPEL

Before the Court is Defendants’ Motion to Compel (R. Doc. 72), Plaintiffs’ responses to
their fourth Requests for Production of Documents (R. Doc. 72-3), filed on June 27, 2014.
Plaintiffs’ response was due by July 27, 2014. At the Court’s July 2, 2014 hearing, on this and
other pending motions, Plaintiffs’ counsel indicated that he did intend to respond to Defendants’
Motion to Compel. (R. Doc. 73). As of this Order, however, Plaintiffs have failed to respond to
Defendants’ Motion.
Defendants’ fourth Requests for Production (R. Doc. 72-3) seek financial documents
supporting the monetary losses alleged in Plaintiffs’ Complaint, and later detailed in a May 9,
2014 memorandum authored by Plaintiff, Keith Day. (R. Doc. 72-1 at 1). Defendants first
requests requested documentation corroborating these alleged monetary losses on March 19,
2012, and have since repeated that request on numerous occasions. (R. Doc. 65). The Court has
likewise ordered Plaintiffs to produce these financial documents. (R. Doc. 65).
To date, however, Defendants claim that Plaintiffs continuously refer to, but have yet to
actually produce, these financial documents. (R. Doc. 72-1 at 2). Instead, Plaintiffs’ counsel has

consistently informed Defendants and the Court that he has produced everything in his
knowledge on behalf of his clients. (R. Doc. 72-6 at 1) (“As I have said repeatedly, you have all
that I have received in this case, a huge volume of documents.”); (R. Doc. 73) (Plaintiffs’
counsel made the same affirmation at the Court’s July 2, 2014 hearing); (Pls.’ Supplemental
Discovery Resp., R. Doc. 72-7 at 2) (“At present . . . Plaintiff has heretofore provided to
Defendant the whole and entirety of any/all documentation in his possession which may and
could be responsive unto these specific items.”). Nonetheless, Defendants have continued to
request discovery related to Plaintiffs’ damages, despite Plaintiffs’ insistence that no other
documents exist. But this is understandable considering that Mr. Day’s memo refers to specific
losses, quantified down to the penny.
While their fourth set of document requests concern the same financial subject matter as
earlier requests initially made on March 19, 2012, Defendants’ latest discovery contains new
requests that are much more detailed. Thse document requests were served on May 27, 2014 and
track the specific categories of “direct and consequential damages arising from the [alleged]
[m]alpractice” that are quantified in Mr. Day’s May 9, 2014 memorandum. (R. Doc. 72-4 at 2).
On June 19, 2014, Plaintiffs provided Defendants with their Supplemental Responses to
Defendants’ previously mentioned discovery requests — Defendants’ Interrogatory Nos. 4, 5,
and 10, and Request for Production Nos. 2, 3, and 7, originally served on Plaintiffs over two
years ago — on March 19, 2012. (R. Doc. 72-7); (R. Doc. 65 at 1). The Supplemental
Responses were provided after the Court ordered production of the requested documents. (R.
Docs. 65). The Supplemental Responses explain that Plaintiffs were still compiling “various
‘specific’ financial records which were recently sought by Defendants” in their fourth Requests
for Production on May 27, 2014, which overlap with some of the documents previously

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requested and ordered (R. Doc. 65) to be produced by the Court. (R. Doc. 72-2 at 2). Plaintiffs
continue that “[i]n lieu of sending an unorganized pile of paperwork — essentially Plaintiff’s
presently-ongoing, work-in-progress compilation — in advance of the more formal responses to
[the fourth document] requests which will follow, Plaintiff respectfully seeks deference of the
Defendants in awaiting Plaintiff’s production . . . to be provided to Defendants in due course.”
(R. Doc. 72-2 at 2-3).
Despite this promise, the June 27, 2014 deadline for responding to Defendants’ May 27,
2014 fourth document requests past without any responses or objections to those requests from
Plaintiffs. Instead, Defendants got an email from Plaintiffs’ counsel on June 25, 2014 explaining
that Plaintiffs had already provided discovery — referring to their Supplemental Responses —
and reiterating: “As I have said repeatedly, you have all that I have received in this case, a huge
volume of documents.” (R. Doc. 72-6 at 1). To the Court’s knowledge, Plaintiffs have not made
any substantive objections to the requests. Moreover, Plaintiffs failure to followed through on
their promise to provide financial documents meant they also did not adequately comply with the
Court’s Order (R. Doc. 65) to produce documents responsive to Defendants’ March 19, 2012
Interrogatories and Requests for Production of Documents (R. Doc. 58-2 at 1-30).
On June 27, 2014, after again not receiving any of the promised documentation,
Defendants filed the instant Motion to Compel (R. Doc. 72) Plaintiffs’ responses to their fourth
set of Requests for Production. On the same day, Defendants also filed a Motion to Dismiss, or
in the alternative, Motion for Sanctions (R. Doc. 70) based on Plaintiffs’ continued refusal to
provide the financial documents requested over two years ago in Defendants’ March 19, 2012
Interrogatories and Requests for Production and ordered to be produced by the Court. In light of
the circumstances,

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IT IS ORDERED that Defendants’ Motion to Compel (R. Doc. 72) Plaintiffs’ responses
to Defendants’ fourth set of Requests for Production of Documents is GRANTED and that
Plaintiffs’ discovery responses shall be produced according to the following instructions:
(1) Plaintiffs are to provide responses to Defendants’ fourth set of Requests for Production
of Documents by August 15, 2014.
(2) Plaintiffs’ responsive documents, if any, shall contain bates numbers so that the parties
and the Court can specifically identify which documents were produced in compliance
with this Order.
(3) Plaintiffs’ responses shall include an affidavit from Keith Day and David Ripka, on
behalf of themselves and Forever Green Athletic Fields, Inc., verifying the documents
produced, if any, in accordance with this Order.
a. If Plaintiffs do produce documents in their possession or control, the affidavit
should describe the documents produced and indicate their corresponding bates
numbers.
b. If Plaintiffs are not in possession or control of any responsive documents, the
affidavit should verify that Plaintiffs do not possess or control any additional
documents and that none have been produced.
(4) By August 18, 2014, Plaintiffs will file this affidavit — not any responsive documents it
may describe — into the record.
Because many of the documents responsive to Defendants’ fourth set of discovery
requests are also response to their earlier March 19, 2012 requests at issue in Defendants’ Motion
to Dismiss, or Motion for Sanctions (R. Doc. 70), the Court will defer its consideration of that
Motion (R. Doc. 70) until after Plaintiffs have filed their affidavit in the record.

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Finally, Defendants request an award of “reasonable expenses, including attorney’s fees,
incurred in making this motion.” (R. Doc. 72-1 at 3). When a motion to compel is granted, Rule
37(5)(A) of the Federal Rules of Civil Procedure provides that “the court must, after giving an
opportunity to be heard, require the party or the deponent whose conduct necessitated the motion
. . . to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s
fees,” unless certain exceptions apply. Because the Court has granted Defendants’ Motion to
Compel and no exceptions apply, Defendants are entitled to an award of “reasonable expenses
incurred” in making their Motion. However, Defendants’ Motion did not include an affidavit of
reasonable expenses, including attorney’s fees, which deprived Plaintiffs of an opportunity to
respond. Therefore,
Defendants are ORDERED to file an affidavit of reasonable expenses incurred in
bringing this Motion, including attorney’s fees, no later than August 6, 2014; and
Plaintiffs may submit a response to Defendants’ affidavit within 7 days of its filing.
Plaintiffs’ response shall be limited to the reasonableness of the amount of fees requested.
Signed in Baton Rouge, Louisiana, on July 30, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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