Communications Unlimited Contracting Services, Inc. et al v. Broadband Infrastructure Connection, LLC et al

Filing 72

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the motion (ECF. No. 55 ) of Defendant Broadband Infrastructure Connection, LLC, to compel discovery is GRANTED with respect to its Production Requests Nos. 1 and 3. Communications Unlimited shall p roduce the documents within seven days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that if Communications Unlimited maintains that it does not have the documents at issue in Request No. 3, Communications Unlimited shall, within seven days of the date of this Memorandum and Order, submit proof to the Court of efforts taken to locate the documents, and if they no longer exist, to explain to the Court what happened to them and why. IT IS FURTHER ORDERED that the motion (ECF No. 67 ) Defendant Broadband Infrastructure Connection, LLC, for a ruling on the above motion is DENIED as moot.. Signed by District Judge Audrey G. Fleissig on 9/1/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COMMUNICATIONS UNLIMITED
CONTRACTING SERVICES, INC.;
CHARTER OAK FIRE INSURANCE
COMPANY; and ST. PAUL FIRE &
MARINE INSURANCE COMPANY,
Plaintiffs,
vs.

BROADBAND INFRASTRUCTURE
CONNECTION, LLC; and MIDCONTINENTAL CASUALTY
COMPANY,
Defendants.

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Case No. 4:16CV00516 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Defendant Broadband
Infrastructure Connection, LLC, (“Broadband”) to compel Plaintiff Communications
Unlimited Contracting Services, Inc. (“Communications Unlimited”) to produce the
documents requested in Broadband’s First Request for Production of Documents. As
relevant to the motion to compel, Communications Unlimited brings this case for
indemnification from Broadband for the settlement amount Communications Unlimited
paid in another lawsuit based on the conduct of one James Helderle in December 2012
while he was employed as a cable technician. Communications Unlimited asserts that
Broadband exercised completed domination and control over Helderle’s employment,

and thus Broadband, and not Communications Unlimited, was the true employer of
Helderle. This assertion is based in part on alleged payments made by Broadband to
Communications Unlimited pursuant to a Master Servant Agreement between these two
parties.
The motion to compel discovery was filed on June 29, 2017, and sought an order
compelling production of the following documents: Communications Unlimited’s
payroll records from October 2012 through December 2012 for Robert Sebring, the
individual who interviewed and hired Helderle (Request No. 1); documents sent by
Communications Unlimited to an employee (Ronald Williams) of another company
(Charter Communications, Inc.) regarding Helderle’s hire, including an email sent to
Williams on October 8, 2012. (Request No. 3); and documents showing any payment
Broadband made to Communications Unlimited pursuant to the Master Servant
Agreement (Request No. 6).
Communications Unlimited did not respond to the motion to compel discovery,
and on August 8, 2017, Broadband filed a motion for a ruling on its motion to compel
discovery. Two days later, Communications Unlimited filed a response, stating that the
reason it did not respond to the motion to compel was because it thought its June 29,
2017 supplemental production mooted the discovery dispute. Communications
Unlimited, however, acknowledged that it continued to object to Request No. 1 on
relevancy grounds. It asserted that it has produced all documents responsive to Requests
No. 3 and 6 in its possession. In its reply, filed on August 16, 2017, Broadband
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acknowledges that Request No. 6 is no longer in dispute, but maintains that the
documents sought in Request No. 1 are relevant, and that Communications Unlimited’s
supplemental production did not include “the October 8, 2012 email or any information
and/or documents provided to Charter by [Communications Unlimited] regarding
Helderle on or about October 8, 2012.” ECF No. 70 at 4.
Upon review of the record, the Court agrees with Broadband that Request No. 1, is
relevant to Broadband’s defense that it was not responsible for the hiring or conduct of
Helderle; furthermore, the request is proportional to the needs of the case. See Fed. R.
Civ. P. 26(2)(1). The Court further concludes that Request No. 3 seeks relevant
evidence that should be provided to Broadband. It appears from the record that
Communications Unlimited should have copies of the documents sought, especially the
October 8, 2012 email referenced above. Thus, if Communications Unlimited maintains
that it does not have the documents at issue, the Court will order Communications
Unlimited to submit proof to the Court of efforts taken to locate the documents at issue,
and if they no longer exist, to explain to the Court what happened to them and why.
Accordingly,
IT IS HEREBY ORDERED that the motion (ECF. No. 55) of Defendant
Broadband Infrastructure Connection, LLC, to compel discovery is GRANTED with
respect to its Production Requests Nos. 1 and 3. Communications Unlimited shall
produce the documents within seven days of the date of this Memorandum and Order.
IT IS FURTHER ORDERED that if Communications Unlimited maintains that
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it does not have the documents at issue in Request No. 3, Communications Unlimited
shall, within seven days of the date of this Memorandum and Order, submit proof to the
Court of efforts taken to locate the documents, and if they no longer exist, to explain to
the Court what happened to them and why.
IT IS FURTHER ORDERED that the motion (ECF No. 67) Defendant
Broadband Infrastructure Connection, LLC, for a ruling on the above motion is DENIED
as moot.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of September, 2017.

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