Waste Away Consulting, LLC et al v. Environmental Waste Solutions, LLC et al

Filing 36

ORDER granting in part and denying in part 19 Motion to Compel Compliance with Rule 26. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 11/14/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WASTE AWAY CONSULTING, LLC, ET AL.

CIVIL ACTION

VERSUS

NO. 16-389-JWD-RLB

ENVIRONMENTAL WASTE
SOLUTIONS, ET AL.
ORDER
This matter is before the Court on a Motion to Compel Compliance with Rule 26 (R.
Doc. 19) filed on September 23, 2016 by Plaintiffs Waste Away Consulting, LLC; Efficient
Waste Solutions, Inc.; and Envirosource Waste Solutions, LLC (collectively, “Plaintiffs”). The
Motion pertains to the Initial Disclosures submitted to the Plaintiffs by Defendant Environmental
Waste Solutions, LLC (“EWS”) and Defendant Darwyn Williams (collectively, “Defendants”).1
The Motion is opposed by the Defendants. (R. Doc. 25).
Rule 37(a)(3)(A) provides that “[i]f a party fails to make a disclosure required by Rule
26(a), any other party may move to compel disclosure and for appropriate sanctions.” There is
no dispute that Rule 26 disclosures were provided by the Defendant. (R. Doc. 19-2). Those
responses have also been supplemented. (R. Doc. 25-1). The Motion and Memorandum in
Support (R. Doc. 19-1), however, challenge the sufficiency of the Defendants’ disclosures with
respect to those required by Rule 26(a)(1)(A)(i) as well Defendants’ alleged failure to provide a
copy or adequate description or location of certain documents pursuant to Rule 26(a)(1)(A)(ii).
Because these are the only aspects of the Defendants’ disclosures addressed by the Plaintiffs, the
Court’s analysis is likewise limited to this topic.

1

Defendant Donna Fothergill has not made an appearance and there is no record of service on this defendant.

Rule 26(a)(1)(A)(i) provides that a party must, without awaiting a discovery request,
provide to the other parties “the name and, if known, the address and telephone number of each
individual likely to have discoverable information – along with the subjects of that information –
that the disclosing party may use to support its claims or defenses unless the use would be solely
for impeachment.”
Plaintiffs note that this is a putative class action involving an alleged failure by EWS to
pay sums due under certain “Joint Venture Agreements” with its “Affiliates.” Plaintiff argue that
the “names and other information about affiliates and/or representatives who did or did not enter
into joint venture agreements” are “notably absent” from Defendants’ initial disclosures.
In response, Defendants correctly note that the disclosure requirements under Rule
26(a)(1)(A)(i) are those individuals that the “disclosing party may use to support its claims or
defenses.” (R. Doc. 25 at 1) (emphasis added). Any disclosures made are subject to that
limitation. All parties are under an ongoing duty to supplement those disclosures. See Fed. R.
Civ. P. 26(e). There are significant consequences for failing to make such disclosures. “If a
party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or
at a trial, unless the failure was substantially justified or is harmless.” See Fed. R. Civ. P.
37(c)(1).
Based on a review of Defendants’ disclosures and supplement, the Court does not find
that they are deficient for failing to provide the specific information argued for by Plaintiffs.
Simply put, if Defendants do not intend to use such individual affiliates or representatives as
witnesses to support its claims or defenses, they are not within the scope of Rule 26(a)(1)(A)(i).

Rule 37 provides the appropriate sanction for failing to identify such an individual. If Plaintiffs
seeks such specific information, they may request it through formal discovery.2
The Court notes, however, that the disclosures fail to provide the name or address for any
individual identified or whether such information is known by Defendants. While it appears that
certain individuals are current employees of EWS and may be contacted through counsel, it is
not as clear with respect to others.3 Accordingly, within seven days of the date of this Order,
Defendants shall supplement their Initial Disclosures and provide the address and telephone
number of each identified individual. If that information is unknown, Defendants shall
specifically state so in the supplement.
Defendants are also alleged to have failed to provide copies or adequate descriptions or
locations of certain documents pursuant to Rule 26(a)(1)(A)(ii). Following the filing of the
instant Motion, Defendants supplemented their disclosures, specifically listing various Joint
Venture Agreements as well as Buyout and Release Agreements.4 Defendants further represent
that they have provided to the Plaintiffs the 77 joint venture agreements executed, worksheets
detailing the amounts potentially owed to the 24 affiliates at issue, and Buyout and Release
Agreements between EWS and certain joint venture affiliates. A representative sampling of such
documentation was provided to the Court. (R. Doc. 25-1 at 7-44). Based on the supplemented
initial disclosures and representative sampling provided, and based on the record currently before
the Court, these disclosures are sufficient. The parties are reminded that Rule 37(c)(1) provides

2

The Court notes that there is Motion for Protective Order (R. Doc. 24) pertaining to the scope of discovery as it
relates to the individual names and other identifying information of the affiliates who signed Joint Venture
Agreements with the Defendants as well as identifying information of other clients who executed Solid Waste /
Recycling Cost Reduction Service Agreements. As such, the discoverability of the information at issue in the
instant motion is currently before the Court and will be addressed in a separate order pursuant to Rule 26(c).
3
Ms. Shapiro, for example, is identified as a former Chief Operations Officer.
4
Defendants represent that those agreements “have been redacted to preserve confidential and trade-secreted
information.” (R. Doc. 25-1 at 3). The scope of those redactions is also at issue in the pending Motion for Protective
Order and will likewise be addressed in a separate order pursuant to Rule 26(c).

that any documents or information not appropriately disclosed may not be used by the party
failing to make such disclosure.
According, for the reasons set forth above, the Motion to Compel Compliance with Rule
26 (R. Doc. 19) is GRANTED IN PART and DENIED IN PART. Defendants shall
supplement their disclosures pursuant to Rule 26(a)(1)(A)(i) within seven days of this Order
providing the address and telephone numbers of any disclosed individual, as set forth above. In
all other respects, the motion is denied. The parties shall each bear their own costs.
Signed in Baton Rouge, Louisiana, on November 14, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE