Joan Cravens Construction, Inc. et al v. Deas Construction, Inc. et al

Filing 125

ORDER granting in part and denying in part 95 Motion to Compel; granting in part and denying in part 100 Motion to Seal Document; granting in part and denying in part 104 Motion to Compel. See Order for details. Signed by Magistrate Judge Michael T. Parker on 6/30/16. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOAN CRAVENS CONSTRUCTION, INC, ET AL.
v.

PLAINTIFFS

CIVIL ACTION NO. 1:15-cv-385-KS-MTP

DEAS CONSTRUCTION INC., ET AL.

DEFENDANTS
ORDER

THIS MATTER is before the Court on Plaintiff’s Motion to Compel Defendant Weather
Shield to Respond to Discovery [95], Plaintiff’s Motion to Compel Defendant Deas Construction
Inc. to Respond to Discovery [104], and Defendant Weather Shield’s Motion to Seal [100].
Having considered the parties’ submissions, the record, and the applicable law, the Court finds
that the Motion to Compel [95] should be granted in part and denied in part, the Motion to
Compel [104] should be granted in part and denied in part, and the Motion to Seal [100] should
be granted in part and denied in part.
This action arises from the sale of windows.1 According to the Amended Complaint [87],
Plaintiff Jason Smith contracted with Plaintiff Joan Cravens Construction, Inc. to construct a
home for Smith and his family. Plaintiffs allege that they purchased Weather Shield Premium
Series windows from Defendants, but Defendants delivered Weather Shield Life Guard Series
windows, which were inadequate and failed to meet building codes and the design specifications.

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Though this matter initially involved rather straightforward claims, all parties seem
intent on escalating the matter to a point where the litigation costs will exceed its value. These
actions have taken various forms, including the refusal to work out the most basic discovery
issues such as an agreed protective order, ignoring privilege log requirements, and taking a
casual approach to locating records. As set forth below, the Court does not impose sanctions in
this order. However, parties and lawyers who continue to unnecessarily run up the costs of
litigation with further evasive and vexatious tactics may be assessed the costs and fees involved
as well as other sanctions.
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Plaintiffs allege that Defendants provided quotes for the sale of windows to the Plaintiffs from
February 2014, through August 2014. According to Plaintiffs, Defendants provided quotes for
Premium Series windows during the period from February 2014 until, July 27, 2014, and then,
on July 28, 2014, Defendants’ quotes changed to the Life Guard Series, without notification to
Plaintiffs. Plaintiffs claim that these inadequate windows were installed in the Smith home and
eventually had to be replaced at substantial expense to the Plaintiffs.
Motion to Compel Defendant Weather Shield to Respond to Discovery [95]
On March 2, 2016, Plaintiffs served upon Defendant Weather Shield their first set of
requests for production, and, on March 31, 2016, Weather Shield responded. See Notices [27]
[45]. On May 25, 2016, Plaintiffs filed their Motion to Compel [95], requesting an order from
the Court directing Weather Shield to respond to and/or supplement its responses to certain
discovery requests. According to Plaintiffs, there are three topics of discovery in dispute: (1)
pricing information, (2) quotes and correspondence regarding the underlying transaction, and (3)
a privilege log.
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case . . . .” This Rule also specifies that “[i]nformation within
this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.
26(b)(1). The discovery rules are accorded a broad and liberal treatment to achieve their purpose
of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 177 (1979). “It
is well established that the scope of discovery is within the sound discretion of the trial court.”
Freeman v. United States, 566 F.3d 326, 341 (5th Cir. 2009).

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Pricing Information
Request No. 9: Please produce all pricing information including, but not limited to,
information about cost per unit, margins, and standard wholesale price per unit with
respect to Product ID Nos. 8109, 8116 and 8211 contained in Quote No. 141808;
Produce ID Nos. 1102, 810, and 8204 contained in Quote No. 1460342; Produce ID
Nos. 819, 8116, and 8211 contained in Quote No. 1415143; and Produce ID Nos.
1102, 810, and 8204, contained in Quote No. 551018947.
Response: Counsel objects to this Request as seeking confidential, proprietary
information which also constitutes trade secrets. Counsel also objects to the
Request because it seeks irrelevant information and information not reasonably
calculated to lead to the discovery of admissible evidence. Weather Shield’s price
per unit is given only to authorized dealers when a quote is requested: that
information is not disseminated to any other entities or persons, including
contractors and homeowners. Additionally, no entities or persons, including
dealers, are given information regarding Weather Shield’s profit margin.
According to Plaintiffs, Weather Shield has refused to produce unredacted pricing
information related to this transaction. In its Response [118], Weather Shield argues that the
pricing information is irrelevant to Plaintiffs’ claims. Weather Shield asserts that a price change
would have been at the discretion of Deas Construction Inc. (“Deas”). Weather Shield also
asserts that this information will not further Plaintiffs’ allegations because they have not
demonstrated that they received a lower quality window.
Plaintiffs allege that, despite the change in the type of windows quoted by Defendants,
there was no change in the unit price for Plaintiffs. Plaintiffs argue that the information
regarding the pecuniary benefit received by Defendants from the change in product without a
change in price is relevant to Plaintiffs’ claims. The Court finds that Plaintiffs have adequately
explained the nexus between their claims and the discovery they seek, and Weather Shield has
not met its burden of demonstrating that the requested documents should be withheld in spite of
their apparent relevance.

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Weather Shield also argues that this information should not be produced because it is
confidential and constitutes a trade secret. This objection does not prevent the production of
such information, though it might provide a basis for an appropriate protective order. The
parties are directed to confer in good faith in an effort to agree to a protective order. Failing
agreement, the matter shall be addressed by appropriate motion filed on or before July 9, 2016.2
Quotes and Correspondence
Request No. 2: Please produce any communication or correspondence related to this
dispute or Transaction that is in your possession, custody, or control.
Objection: Counsel objects to this Request as overly broad and not properly limited
in scope or time and to the extent it seeks documents obtained in anticipation of
litigation, communications exchanged in anticipation of litigation and attorney-client
communication. Without waving these objections, Weather Shield states:
Response: See emails already produced, Bates numbered WS-00009 through 47,
Bates numbers WS-000048 through 49.
Request No. 3: Please produce all Quotes, drafts of the same, or any other internal
order processing documentation in your possession, custody, or control that were
prepared in relation to this Transaction.
Objection: Counsel objects to this Request as overly broad and not properly limited
in scope or time and the extent it seeks documents obtained in anticipation of
litigation, communications exchanged in anticipation of litigation and attorney-client
communication. Without waving these objections, Weather Shield states:
Response: See the following:
1. QUOTE: 1452966 dated 7/28/14, Bates numbered SW-000001 through 8
2. Email from Clayton Roberts dated 7/2814 with revisions to QUOTE 129, Bates
numbered WS-00009 through 15
3. QUOTE: 1456451 dated 8/5/14, Bates numbered WS-000016 through 23
4. QUOTE: 1460342 dated 8/13/14, Bates numbered WS-000024 through 31

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The Court notes that the parties have previously failed to agree to the terms of an
appropriate protective order, but the Court is confident that a good-faith effort from the parties
will yield an agreed protective order.
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5. Email from Clayton Roberts dated 8/15/14 placing order for QUOTE: 1460342,
Bates numbered WS-000032 through 39
6. Email from Diane Elbert dated 8/18/14 seeking final approval for order pursuant
to QUOTE: 1460342, Bates numbered WS-000040 through 47
7. Email from Clayton Roberts dated 8/20/14 attaching the release for QUOTE:
1460342, Bates numbered WS-000048 through 49
According to Plaintiffs, there are three important time periods in this action: (1) the
period from February 2014, until July 27, 2014, in which Defendants submitted quotes to
Plaintiffs for Weather Shield Premium Series windows; (2) the period from July 28, 2014, until
delivery of the windows on September 26, 2014, which encompasses the time after Defendants
changed the series of window quoted until delivery; and (3) the period from September 26, 2014,
until filing of this lawsuit on November 18, 2015, which includes the time during which
Defendants were notified of and investigated the problems with the windows. See Motion [95] at
9.
Plaintiffs assert that Weather Shield initially only produced four e-mails, all of which
were dated July 28, 2014, or later–after the window series was changed in the quotes. Allegedly,
Weather Shield has not produced any correspondence from the first or third time periods.
Additionally, Plaintiffs assert that Weather Shield initially only produced quotes from the second
time period (July 28, 2014–September 26, 2014) but subsequently produced two quotes from the
first time period (February 2014–July 27, 2014).
In its Response [118], Weather Shield claims that is has provided all of the quotes and
correspondence in its possession. Weather Shield explains that, “[a]s an authorized dealer, Deas
Construction may generate certain quotes without any input from Weather Shield. Because of
this, Weather Shield was not involved in the early quoting process. Weather Shield has
produced all quotes in its possession, beginning with Quote 1421808 dated 5/22/14. Despite
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these facts, Plaintiffs are asking the court to compel Weather Shield to produce documents that
simply do not exist.” [118] at 2. According to Weather Shield, because of its software, its quotes
may be generated without any input from Weather Shield and its quotation and ordering process
works without engaging Weather Shield personnel.
In their Rebuttal [122], Plaintiffs argue that on June 6, 2016, Defendant Deas produced
emails which demonstrate that Weather Shield was “involved in preparing, reviewing, critiquing,
revising, and finalizing the quotes submitted to the Plaintiffs . . . .” [122] at 2.3 Indeed, these
emails appear to be communications between Deas’s sales agent, Clayton Roberts, and Weather
Shield employees regarding the quotes at issue in this case. In these emails, Roberts requests
quotes from Weather Shield employees, and Weather Shield employees direct Roberts regarding
certain information in the quotes. These emails call into question Weather Shield’s description
of its quotation and ordering process.
Accordingly, the Court finds that Weather Shield should provide supplemental responses
to Plaintiffs’ Request for Production of Documents Nos. 2 and 3.4 If no additional responsive
documents exist, Weather Shield should explain the efforts it made to locate documents with

3

Plaintiffs submitted these emails directly to the undersigned’s chambers because of the
parties’ pending dispute regarding the confidentiality of certain information contained in the
emails.
4

Weather Shield may designate as “Confidential” any material it believes in good faith
qualifies for protection pursuant to Fed. R. Civ. P 26(c). The receiving party shall not distribute,
transmit, or otherwise divulge any material marked “Confidential,” except that the material may
be used by a party, a party’s counsel, expert witness, or consultant to pursue the claims or
defenses raised in this action. If a party wishes to file of record any material marked
“Confidential,” that party first shall move the Court for an order to seal the material in
accordance with the Federal Rules of Civil Procedure and Local Rules. The terms set forth
herein will be in force until the Court enters a protective order or other order.
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sufficient specificity to allow Plaintiffs, and if necessary, the Court, to determine whether
Defendant made a reasonable inquiry and exercised due diligence. Additionally, if Weather
Shield knows of any documents, including those produced by Deas on June 6, 2016, which are
no longer in its possession, Weather Shield shall provide an answer explaining precisely what
happened to the documents and why they no longer exist in its files. Any further relief requested
in the Motion to Compel is denied.
Privilege Log
In their Motion to Compel, Plaintiffs also assert that Weather Shield has failed to produce
a privilege log. In its Response [118], however, Weather Shield informs the Court that it has
now provided Plaintiffs a privilege log. Thus, this issue is now moot, though it took a motion to
compel to force Weather Shield to do what the rules plainly required. Weather Shield is directed
to footnote 1, supra.
Motion to Compel Defendant Deas Construction Inc. to Respond to Discovery [104]
On March 2, 2016, Plaintiffs served upon Defendant Deas their first set of requests for
production, and, on April 1, 2016, Deas responded. See Notices [27] [48]. On June 1, 2016,
Plaintiffs filed their Motion to Compel [104], requesting an order from the Court directing Deas
to respond to and/or supplement its responses to certain discovery requests. Similar to the
Motion to Compel filed against Weather Shield, this Motion [104] involves disputes regarding
quotes, correspondence regarding the transaction, and a privilege log.
Quotes and Correspondence
Request No. 2: Please produce any communications or correspondence related to this
dispute or Transaction that is in your possession, custody, or control.
Response: Deas produces Bates 1-59, which are the several quotes and
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correspondences between Deas and Plaintiffs, and Amish Millwork, regarding the
windows in question, for use as evidence. Deas further produces Bates 270-75 with
photographs of the windows in question. Deas produces the Plaintiffs’ production
of documents, labeled Plaintiff Bates 1 through 1057. Deas further produces
Weather Shield’s production of discovery, labeled Weather Shield 1-53. Deas
further produces documents retrieved from the City of Gulfport, retrieved by
Weather Shield, as Bates Smith Gulfport 1-163.
Request No. 3: Please produce all Quotes, drafts of the same, or any other internal
order processing documentation in you possession, custody, or control that were
prepared in relation to this Transaction.
Response: Deas would produce Deas Bates 1-59; Plaintiff’s bates 1-138; Bates 14153; 162-69; and Weather Shield 1-53.
According to Plaintiffs, Deas only produced four emails and three quotes, all of which
were dated July 29, 2014, or later–after the window series was changed in the quotes. Plaintiff
claims that Deas provided four quotes to them from February 2014, to July 28, 2014, but Deas
has not produced those quotes, or any drafts thereof. Additionally, Plaintiffs point to the fact
that a nonparty, Amish Millwork, produced approximately eighteen emails related to the
transaction sent by Deas’s sales agent Clayton Roberts. See [104-4]. Deas allegedly failed to
produce these emails.
On June 8, 2016, Deas supplemented its response to the requests of production. See
Notice [115]. According to the president of Deas, Zach Deas, after he received Plaintiffs’
Motion to Compel, Clayton Roberts mentioned the existence of a laptop, which Roberts no
longer used. Zach Deas states that additional documents regarding this transaction were found
on Roberts’s laptop and produced. In its Response [114], Deas claims that with its latest
supplement, it has produced every responsive document in its possession or control.
In their Rebuttal [121], Plaintiffs assert that, despite Deas’s supplemental production,
Deas has not produced all of the emails between Clayton Roberts and Amish Millwork.
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Plaintiffs point out that they have established the existence of these emails.
Plaintiffs also point out that two of the emails produced from Roberts’s laptop were
forwarded to Zach Deas during the pendency of this litigation.5 Plaintiffs argue that these two
emails demonstrate that Deas knew about Roberts’s laptop before Plaintiffs filed their Motion to
Compel. The Court, however, finds that these emails do not necessarily demonstrate that Deas
knew about the laptop prior to the Motion to Compel, as Roberts’s email account may have been
accessed through another electronic device. Of course, if the emails were sent from another
device, the forgotten laptop would not explain why the emails were not produced earlier.
The questions surrounding the laptop and the discrepancies between Deas’s production
and Amish Millwork’s production lead the Court to find that Deas should provide supplemental
responses to Plaintiffs’ Requests for Production of Documents Nos. 2 and 3.6 If no additional
responsive documents exist, Deas should explain the efforts it made to locate documents with
sufficient specificity to allow Plaintiffs, and if necessary, the Court, to determine whether Deas
made a reasonable inquiry and exercised due diligence. Additionally, if Deas knows of any
documents, including those produced by Amish Millwork, which are no longer in its possession,

5

Plaintiffs submitted these emails directly to the undersigned’s chambers because of the
parties pending dispute regarding the confidentiality of certain information contained in the
emails.
6

Deas may designate as “Confidential” any information it believes in good faith
qualifies for protection pursuant to Fed. R. Civ. P 26(c). The receiving party shall not distribute,
transmit, or otherwise divulge any material marked “Confidential,” except that the material
marked “Confidential” may be used by a party, a party’s counsel, expert witness, or consultant to
pursue the claims or defenses raised in this action. If a party wishes to file of record any material
marked “Confidential,” that party first shall move the Court for an order to seal the material in
accordance with the Federal Rules of Civil Procedure and Local Rules. The terms set forth
herein will be in force until the Court enters a protective order or other order.
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Deas shall provide an answer explaining precisely what happened to the documents and why
they no longer exist in its files.
Plaintiffs request an order from the Court requiring Deas to make Clayton Roberts
available for a second deposition in light of the production from his laptop. The Court finds that
this relief should be granted, and Clayton Roberts should be made available for a second
deposition. Plaintiffs also request attorney’s fees and cost incurred related to the second
deposition. The Court will deny this request at this time as Plaintiffs have failed to demonstrate
that Deas purposefully withheld the recently produced documents. Any further relief requested
in the Motion to Compel is denied.
Privilege Log
In their Motion to Compel, Plaintiffs also assert that Deas has failed to produce a
privilege log. In its Response [114], Deas asserts that Plaintiffs failed to confer regarding the
lack of a privilege log before filing its Motion to Compel and argues that, as a result, this issue is
not ripe for review. Deas, however, signed the good faith certification, which states that counsel
have conferred in good faith to resolve the issues in question. Additionally, the Federal Rules of
Civil Procedure and the Local Rules of this Court make it clear that Defendant has a duty to
produce a privilege log containing at least the name of any withheld document, a description of
the document, and the nature of the privilege asserted. See Fed. R. Civ. P. 26(b)(5)(A) &
45(e)(2)(A); L.U. Civ. R. 26(a)(1)(C). This is required in order that the parties and the Court can
make a meaningful determination regarding the merits of the claim of privilege. A party
withholding documents under a claim of privilege has a plain duty to prepare and serve a

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privilege log.7 Thus, Deas shall promptly produce a privilege log, and familiarize itself with
footnote 1, supra.
Motion to Seal [100]
In its Motion to Seal, Defendant Weather Shield requests that the Court seal Exhibit 4 to
the Plaintiffs’ Second Amended Complaint [87] and replace it with a redacted version.
According to Weather Shield, Exhibit 4 contains confidential wholesale pricing. The Court finds
that this relief should be granted. Weather Shield also requests attorney’s fees and costs
associated with filing its Motion to Seal. The Court will deny this request and any further relief
requested in the Motion to Seal.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiffs’ Motion to Compel Defendant Weather Shield to Respond to Discovery
[95] is GRANTED in part and DENIED in part. Weather Shield shall comply
with this order on or before July 7, 2016.

2.

Plaintiffs’ Motion to Compel Defendant Deas Construction Inc. to Respond to
Discovery [104] is GRANTED in part and DENIED in part. Deas shall comply
with this order on of before July 7, 2016.

3.

Defendant Weather Shield’s Motion to Seal [100] is GRANTED in part and
DENIED in part.

4.

The Clerk of Court is directed to seal Exhibit [87-4].

5.

On of before July 7, 2016, Plaintiffs shall file a redacted copy of Exhibit [87-4].

6.

The parties are directed to confer in good faith in an effort to negotiate an agreed

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“This argument ignores the fact that plaintiff should not be required to ask for
something that the Rules clearly state the defendant must provide.” Pensacola Firefighters’
Relief Pension Fund Br. of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D.
589, 594 (N.D. Fla. 2010). “[T]he duty to produce the privilege log is immediate and absolute,
and does not depend at all upon Plaintiff asking for it.” Covington v. Sailormen, Inc., 274 F.R.D.
692, 694 (N.D. Fla. 2011).
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protective order. Failing agreement, the matter shall be addressed by appropriate
motion filed on July 9, 2016. If the parties are unable to negotiate the terms of an
agreed protective order, such failure is not grounds to withhold any documents
ordered to be produced in this order. Instead, the documents shall be timely
produced with the temporary protections afforded in this order. See footnotes 4, 6.
SO ORDERED this the 30th day of June, 2016.
s/ Michael T. Parker
United States Magistrate Judge

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