Hayes et al v. Frontera Produce, Ltd. et al
Filing
53
ORDER denying 46 Motion to Compel. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 11/20/2013. (CGP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHARLES LANCE HAYES, JR., ET AL
CIVIL ACTION
VERSUS
NO. 12-588-BAJ-RLB
FRONTERA PRODUCE, LTD., ET AL
ORDER
Before the Court is the Plaintiffs’ Motion to Compel seeking the production of
documents identified in the Fed. R. Civ. P. 26(a)(1) initial disclosures of Defendant Primus
Group, Inc., d/b/a Primus Labs (“Primus”) (R. Doc. 46). Primus opposes the motion (R. Doc.
52). For the reasons discussed below, the Plaintiff’s Motion to Compel is DENIED.
I.
Background
On September 4, 2013, the court set the deadline to exchange Fed. R. Civ. P. 26(a)(1)
initial disclosures on October 15, 2013 and the deadline to file discovery motions and to
complete all discovery except experts by August 18, 2014 (R. Doc. 40). On October 11, 2013,
Primus timely served its initial disclosures on the Plaintiffs (R. Doc. 46-2). Primus’s initial
disclosures identified and described categories of documents that Primus intends to use at trial.
The Plaintiffs informally requested Primus to produce the documents identified and
described in Primus’s initial disclosures (R. Doc. 46-1 at 2). Primus has declined to produce the
documents absent a formal request for production of documents under Fed. R. Civ. P. 34 (R.
Doc. 52 at 2). The Plaintiffs argue that Primus had a duty to produce the disclosed documents
under Fed. R. Civ. P. 26(a). The Plaintiffs move the court, under Fed. R. Civ. P. 37(a)(1) and
(3)(A), to “enter an Order compelling the production of all documents described in Primus’s
initial disclosures, or, in the alternative, preclude Primus’s use of all described documents in the
trial of this matter.” (R. Doc. 46-1 at 3-4).
II.
Law and Analysis
Rule 26(a) provides, in pertinent part, that a party must, without awaiting a discovery
request, provide to the other parties:
a copy--or a description by category and location--of all documents, electronically stored
information, and tangible things that the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses, unless the use would be solely for
impeachment[.]
Fed. R. Civ. P. 26(a)(1)(A)(ii).
Plaintiff does not argue that Primus failed to describe “by category and location . . . all
documents, electronically stored information, and tangible things that [Primus] has in its
possession, custody and control and may use to support its claims or defenses.” Instead,
Plaintiffs argue that Primus had a duty to produce copies of the documents described in Primus’s
initial disclosures wither with its disclosures or after the Plaintiffs informally requested copies of
the documents (R. Doc. 46-1 at 2-3).
Rule 26(a)(1)(A)(ii) does not require a party to produce documents; the disclosing party
has the option of producing a “copy” of the identified documents or providing a “description by
category and location” of those documents. Courts have acknowledged that this “duty to
disclose is not synonymous with a duty to produce.” Forbes v. 21st Century Ins. Co., 258 F.R.D.
335, 337 (D. Ariz. 2009) (“While some sections of Rule 26 require information be both disclosed
and produced, Rule 26(a)(1)(A)(ii) only requires parties to provide notice regarding documents.”
(“[A] duty to disclose is not synonymous with a duty to produce.”); see also Sizemore v.
WalMart Stores, Inc., No. H-05-1589, 2006 WL 1698291, at *3 (S.D. Tex. June 16, 2006)
(“Rule 26(a) of the Federal Rules of Civil Procedure . . . requires only that the documents be
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described by category and location” and, upon receiving such description, the plaintiff may “then
request production of the described documents” under Rule 34(b)); Rural Water Dist. No. 4,
Douglas Cnty., Kan. v. City of Eudora, Kan., No. 07-2463, 2008 WL 5173109 (D. Kan. Dec. 10,
2008) (“While Fed.R.Civ.P. 26(a) allows initial disclosures to be made by producing copies of
relevant documents, the rule does not require either party to actually produce copies of
documents. A party may opt to provide a description of the documents by category and
location.”).
In support of its position, the Plaintiff quotes the advisory committee’s notes on the 1993
amendments to Rule 26, which provides, among other things, that a major purpose of the
disclosure requirement is “to accelerate the exchange of basic information about the case and to
eliminate the paper work involved in requesting such information.” The advisory committee’s
notes also state, however, that the disclosure requirement of Rule 26(a)(1)(A)(ii) “does not
require production of any documents.” 1 The advisory committee’s notes clarify that documents
identified, but not produced, under Rule 26(a)(1) should be sought by the non-disclosing party
through a formal request of discovery under Rule 34:
[I]n cases involving few documents a disclosing party may prefer to provide copies of the
documents rather than describe them, and the rule is written to afford this option to the
disclosing party. If, as will be more typical, only the description is provided, the other
parties are expected to obtain the documents desired by proceeding under Rule 34 or
through informal requests. The disclosing party does not, by describing documents under
[Rule 26(a)(1)(A)(ii)], waive its right to object to production on the basis of privilege or
work product protection, or to assert that the documents are not sufficiently relevant to
justify the burden or expense of production.
Fed. R. Civ. P. 26 advisory committee’s note; see also 8A Wright & Miller, Federal Practice
and Procedure § 2053 (3d ed.) (a listing of materials by category, as opposed to making a copy
1
The advisory committee’s notes on the 1993 amendments to Rule 26 discusses Rule
26(a)(1)(B). The 2007 amendments to renumbered Rule 26(a)(1)(B) as Rule 26(a)(1)(A)(ii).
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of the pertinent materials available, satisfies Rule 26(a)(1)(A)(ii), and the “objective of such a
listing is to enable the other parties to make informed decisions about which documents they
should request be produced pursuant to Rule 34.”).
Primus had the option of producing the documents described in its initial disclosure at the
time of disclosure or in response to informal requests by the Plaintiffs, but it did not have a duty
to do so under Rule 26(a)(1)(A)(ii). The discovery deadline is August 18, 2014. The Plaintiffs
have ample time to seek the documents disclosed by Primus under Rule 34.
III.
Conclusion
For the reasons discussed above, IT IS ORDERED that Plaintiff’s Motion to Compel is
DENIED.
Signed in Baton Rouge, Louisiana, on November 20, 2013.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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