E3 Biofuels, LLC v. Biothane Corporation et al

Filing 141

ORDER - PEI's Motion to Compel (filing 123 ) is granted, in part, as set forth above. Plaintiff shall supplement its discovery responses and produce a privilege log within 45 days of this Order. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
E3 BIOFUELS, LLC,
Plaintiff,
V.
BIOTHANE, LLC, successor in
interest and liability to, and
PERENNIAL ENERGY, INC.,
Defendants.

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8:11CV44

ORDER

Defendant Perennial, Energy, Inc. (“PEI”) has filed a motion requesting that the Court
compel Plaintiff to supplement its responses to PEI’s discovery requests. (Filing 123.) For
the reasons set forth below, PEI’s motion will be granted, in part.
BACKGROUND
This lawsuit arises out of the construction of an ethanol plant (the “Ethanol Plant” or
“Plant”) in Mead, Nebraska. Plaintiff alleges that Defendants failed to provide a functional
Boiler System for the Plant. Specifically, the Complaint alleges that the “construction,
installation, testing, commissioning and start up of the Ethanol Plant was not substantially
completed, and the Ethanol Plant never operated as intended, due to the failure of the
Defendants to fabricate, install, integrate, program, test, commission, and start up a fully
functional Boiler System for the Ethanol Plant. As a direct and proximate result, [Plaintiff]
sought bankruptcy protection.”

(Filing 60 at CM/ECF p. 4.)

PEI denies Plaintiff’s

allegations and, in its Answer, affirmatively alleges that Plaintiff’s damages were caused by
Plaintiff’s own negligence and/or acts or omissions of third parties. (Filing 71.) PEI also
claims that Plaintiff has not been damaged to the extent alleged and failed to mitigate its
damages. (Id.)
On August 26, 2011, PEI served interrogatories and requests for production of

documents upon Plaintiff. Plaintiff submitted its responses on September 26, 2011. PEI
believes that Plaintiff’s responses contain improper objections and are incomplete. PEI has
moved the Court for an order overruling Plaintiff’s objections to (1) the definitions contained
in the discovery requests; (2) Interrogatory Nos. 3-6, 11-21, 23-25, 29-35, 37-40, 42 and 4447; and (3) Document Production Request Nos. 2, 6, 9-20, 23-26, 28-32, 38-42, 44-52, 54-59,
61 and 62. PEI also requests that the Court find that Plaintiff violated the Federal Rules of
Civil Procedure by issuing incomplete or evasive responses to Interrogatory Nos. 1-6, 8-11,
13, 16-20, 22-27, 29, 31-33, 36 and 43, as well as Document Production Request Nos. 1, 2,
4-36, 38-43, 45-50, 53-57, 59, 61 and 63. PEI requests that the Court order Plaintiff to
supplement its responses so as to ensure that Plaintiff’s responses are complete.1
ANALYSIS
Under the federal rules, parties to a lawsuit may obtain discovery regarding any
matter, not privileged, that is relevant to a claim or defense of any party. Fed. R. Civ. P.
26(b)(1). Relevancy is broadly construed, and “[d]iscovery requests should be considered
relevant if there is any possibility the information sought is relevant to any issue in the case
and should ordinarily be allowed, unless it is clear the information sought can have no
possible bearing on the subject matter of the action.” Met-Pro Corp. v. Industrial Air
Technology, Corp., No. 8:07CV262, 2009 WL 553017, * 3 (D. Neb. March 4, 2009). The
party seeking discovery must make a threshold showing that the requested information or
documents are relevant to the plaintiff’s claims or defenses. Id. “Mere speculation that
information might be useful will not suffice; litigants seeking to compel discovery must
describe with a reasonable degree of specificity, the information they hope to obtain and its
importance to their case.” Id.
Once the requesting party meets the threshold relevance burden, generally “[a]ll
discovery requests are a burden on the party who must respond thereto. Unless the task of

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Plaintiff has agreed to supplement its responses to Interrogatory Nos. 26, 27, 34 and
35. Plaintiff shall do so, in conformance with this Order, within 45 days. Plaintiff represents
that it has fully responded to Interrogatory No. 19. Therefore, Interrogatory Nos. 19, 26, 27,
34 and 35 will not be specifically discussed herein.
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producing or answering is unusual, undue or extraordinary, the general rule requires the
entity answering or producing the documents to bear that burden.” Continental Ill. Nat’l
Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991). Therefore,
the party opposing the motion to compel has the “burden of showing its objections are valid
by providing specific explanations or factual support as to how each discovery request is
improper.” Whittington v. Legent Clearing, LLC, No. 8:10CV465, 2011 WL 6122566 , * 3
(D. Neb. Dec. 8, 2011). The party resisting discovery must “show facts justifying its
objection by demonstrating that the time or expense involved in responding to requested
discovery is unduly burdensome.” Id. However, “[t]he court has discretion to limit the scope
of discovery if it has a good reason to do so.” Met-Pro Corp., 2009 WL 553017 at * 3.
A.

Objections to Definitions in the Discovery Requests

Plaintiff objected to several of the definitions set forth in PEI’s discovery requests,
asserting that the definitions were overly broad. Particularly, Plaintiff objected to PEI’s
definition of the term “Project,” which PEI defined as meaning “the construction and
management of a ‘closed loop’ ethanol plant.” (Filing 125-1.) Plaintiff further objected to
PEI’s definition of the term “Plant Subparts,” which PEI defined as including:
Boiler 601, Boiler 602, the burners for said boilers, the exhaust stack for said
boilers, the de-aeration system for said boilers, the air compressor system for
said boilers, the natural gas line and regulators for said boilers, the bio gas line
and regulators for said boilers, the steam distribution system for the Plant, the
steam/condensate return system for the Plant, the feedwater system in the
boiler building, the reverse osmosis (RO) system in the boiler building, the
sump pump system in the boiler building, the ventilation system in the boiler
building, and the boiler building.
(Id.) Plaintiff’s response to PEI’s discovery requests limited the definition of “Project” to
include the installation and start up of the Boiler System and “any related systems.” (Filing
125-2.) Similarly, Plaintiff limited the term “Plant Subparts” to include only the Boiler
System and any related systems. (Id.) Plaintiff did not, however, indicate what was included
within its meaning of “related systems.”

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PEI asserts that its definitions narrowly tailored the scope of its discovery requests to
seek information regarding the problems that were reportedly occurring over the course of
construction of the Ethanol Plant. PEI claims that this information is relevant because the
Complaint alleges that the entire Plant was not substantially completed and that the entire
Plant did not function as intended because of the Boiler System. PEI further believes that
this information is critical to its defense that other problems at the Plant affected its
completion and had nothing to do with the boilers. PEI claims that the limitations imposed
by Plaintiff impacted the sufficiency of Plaintiff’s responses to Interrogatory Nos. 3, 5, 6, 11,
12-14, 16, 17, 20, 21, 23, 32-35, 38 and 46, as well as Document Production Request Nos.
2, 6, 13-17, 23-26, 28-32, 38-40, 44, 45, 59 and 62.
The Court agrees that discovery related to other construction problems allegedly
occurring at the Ethanol Plant is relevant to the issues involved in this case. Plaintiff’s
Complaint alleges that the Ethanol Plant was not substantially completed, and the Ethanol
Plant never operated as intended, due to PEI’s failure to provide a fully functional Boiler
System. PEI denies these allegations and asserts that the damages were caused by Plaintiff’s
own negligence and/or acts of third parties. Therefore, discovery requests seeking to
determine to what extent, if any, other problems caused the alleged failures or completion
delays are clearly relevant to the claims and defenses in this case. However, upon review of
the discovery requests, it is apparent that several of PEI’s requests are overly broad,
regardless of the definitions used. Several of the requests encompass irrelevant information
and are nearly impossible to fully answer.
Therefore, keeping in mind the foregoing, the Court orders as follows:
1.

Plaintiff is directed to supplement its responses to Interrogatory Nos. 11, 12,
13, 14, 16, 17, 20, 21, 23, 32 2 , 33 and 38, so as to include within the definition
of the term “Project” the construction and management of the Solid Waste
Management System and Ethanol Production Facility located near Mead,

2

In supplementing Interrogatory No. 32, Plaintiff need not provide salary information
or the amount of wages paid to each of its employees.
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Nebraska. This definition is not limited to information about the Boiler
System or other “related systems.”

However, Plaintiff need not include

information regarding the dairy feedlot, with the exception of information
regarding the feedlot’s boilers. Plaintiff also need not provide information
about the Plant’s ammonia production as this area of inquiry appears, at least
at this time, to be irrelevant to the issues involved in this case. Also, these
interrogatories must be supplemented to employ the definition of the term
“Plant Subparts” provided by PEI. If, in response to these interrogatories,
Plaintiff has already provided the information in its possession or control
included within these parameters, Plaintiff shall so notify PEI.
2.

The Court finds that Interrogatory Nos. 5 and 6 are exceedingly broad and that
Plaintiff’s answers are sufficient. A response to Interrogatory No. 5, which
asks for a list of all issues, problems or defects that delayed construction of the
Plant, would include information about minor delays in the project, such as an
electrician being late for work, or other insignificant delays which have no
relevance to the issues involved in this case. Interrogatory No. 6 asks for a list
of any and all work that Plaintiff was responsible for completing or decisions
Plaintiff was responsible for making with respect to the construction and
management of the Plant.

The construction of the Plant was a huge

undertaking. It would be nearly impossible for Plaintiff to make a list of every
decision or act, however minor, that it was responsible for making or
completing.
3.

Plaintiff shall supplement its responses to Document Production Request Nos.
2, 6, 13-17, 23-26, 28-32, 39, 40, 44, 45 and 59, so as to comply with the
parameters set forth above.

Should Plaintiff’s responses not require

supplementation because all responsive documents (as defined by this Order)
have previously been provided, it shall so notify PEI.

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B.

Post-Bankruptcy Discovery

PEI has asked a host of discovery requests that seek information and materials that
post-date the bankruptcy of the former Plant owners. Particularly, this information is sought
through Interrogatory Nos. 12-19, 21, 32, 34-35, 37-40, 42 and 46, as well as Document
Production Request Nos. 15, 19, 20, 25, 26, 29, 30, 32, 41, 42, 45, 47-50, 54-57 and 61. It
appears that Plaintiff has provided some, but not all, responsive information which post-dates
the bankruptcy.
PEI believes that post-bankruptcy discovery is likely to reveal information about other
design or construction problems that prevented the Ethanol Plant or its Boiler System from
operating as intended. PEI contends that post-bankruptcy discovery could also reveal
information about other factors that prevented the Ethanol Plant from legally operating, such
as the Plant’s alleged violation of environmental standards. As explained above, the Court
believes that discovery seeking information about other problems that prevented the
operation of the Ethanol Plant is relevant, given the allegations and defenses in this suit.
Therefore, post-bankruptcy discovery will be permitted.
Accordingly, the Court orders as follows:
1.

To the extent it has not done so, Plaintiff shall produce post-bankruptcy
information in response to Interrogatory Nos. 12-19, 21, 32, 37, 38 and 40.

2.

Plaintiff is also directed to supplement its responses to Document Production
Request Nos. 15, 19, 20, 25, 26, 29, 30, 32, 41, 42, 45, 47-50, 54-57 and 61 to
provide documents post-dating bankruptcy.

3.

If Plaintiff does not possess the information sought by any of these discovery
requests, it shall so notify PEI in its responses.

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C.

Information About Criminal/Civil Lawsuits

Plaintiff objected to Interrogatory Nos. 2 and 3, as well as Document Production
Request Nos. 44 and 59, on the ground that these discovery requests seek irrelevant
information pertaining to criminal and/or civil lawsuits. PEI asserts that this information is
relevant, as it is likely to lead to information about designed and/or installed equipment,
beyond the Boiler System, that prevented the Plant and/or boilers from operating as intended.
Further, PEI contends that Plaintiff’s payment or receipt of monetary judgments or
settlements is information which could be useful in evaluating whether Plaintiff would have
gone bankrupt because of other issues with the Plant.
Interrogatory No. 2 asks for information pertaining to all criminal or civil lawsuits in
which Dennis Langley and/or John Curran, the individuals assisting Plaintiff in responding
to the discovery requests, were parties. Plaintiff objected to this interrogatory as being overly
broad because, as it is worded, it would require these individuals, who are not parties to this
proceeding, to list every traffic violation they have ever incurred or to identify any domestic
proceedings in which they may have been parties. The Court agrees that this interrogatory
seeks irrelevant information and is overly broad. Plaintiff responded to the interrogatory by
stating that neither Langley nor Curran have been convicted of a felony. This response is
sufficient.
Interrogatory No. 3 asks Plaintiff to identify all civil lawsuits in which Plaintiff has
been a party within the past ten years. Plaintiff objected, arguing that the scope of this
interrogatory should be limited to lawsuits pertaining to the Ethanol Plant. The Court finds
that the information requested through this interrogatory is discoverable. As pointed out by
PEI, information regarding other lawsuits could shed light on Plaintiff’s financial condition,
which, given Plaintiff’s allegation that the failure of the Boiler System caused it to go into
bankruptcy, is relevant to this action. Plaintiff is ordered to supplement its answer to this
interrogatory accordingly, taking care to supply the information requested by each of the
interrogatory’s sub-parts.
Document Production Request No. 44 seeks all settlement agreements pertaining to
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the payment of damages sustained during the planning and construction phases of the Ethanol
Plant.

Plaintiff has agreed to produce all settlement agreements, subject to any

confidentiality orders, to the extent the Court believes that PEI is entitled to a credit or a
setoff in this case. Similarly, Request No. 59 asks for copies of all judgments entered for or
against Plaintiff from the beginning of the construction of the Ethanol Plant to the current
date. Plaintiff has agreed to produce all judgments pertinent to the damages in this case. The
Court finds that these requests are reasonably calculated to lead to the discovery of
admissible evidence. As argued by PEI, it is possible that this discovery will lead to
information about defectively designed or installed equipment that may have caused
Plaintiff’s alleged damages. Plaintiff shall supplement its responses to these requests so as
to ensure that all responsive documents have been provided.
D.

Information About Other Incidents or Occurrences

Interrogatory No. 33 seeks information regarding all occurrences, other than the boiler
explosion involved in this suit, that caused personal injuries, property damage or financial
losses at the Plant. Similarly, Document Production Request No. 45 seeks all documentation
created within the past ten years concerning any other incidents that occurred at the Plant and
resulted in personal injuries, damage to property, or any other losses to the Plant. Plaintiff
objected to these requests, claiming that they are overly broad, unduly burdensome and not
reasonably calculated to lead to the discovery of admissible evidence. Plaintiff argues that
these discovery requests would require, for instance, information about claims asserted by
an employee of a contractor that suffered a work-related injury.
PEI asserts that through these requests, it is seeking information regarding things such
as repairs needed at the Plant, both before and after it filed for bankruptcy, and expenses, if
any, Plaintiff incurred in making those repairs. PEI also claims it is seeking information to
aid PEI in evaluating the physical condition of the Plant. PEI concedes that it does not want
Plaintiff to contact every contractor involved in the construction of the Plant to obtain
information about personal injuries sustained by the contractor’s employees. Rather, PEI
only wants Plaintiff to provide the responsive information it possesses. Plaintiff has not
shown that it would be unduly burdensome to respond to these requests. Accordingly,
Plaintiff shall supplement its responses to provide the information sought.
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E.

Information About Plaintiff’s Corporate Structure

Interrogatory Nos. 39 through 42 request information about Plaintiff’s corporate
structure, employees and shareholders. Likewise, Document Production Request Nos. 51 and
52 seek information regarding the corporate structure of Plaintiff and the subsequent
purchaser of the Ethanol Plant, AltEn, LLC. PEI claims that these discovery requests are
designed to obtain information about individuals having knowledge of issues in this case,
such as the steps taken by Plaintiff to mitigate its damages and the amount of money needed
to re-start the Plant.
Interrogatory No. 39 requests that Plaintiff state the name and address of every entity
that “You” have an interest in, the amount of that interest, the name and title of every officer
for that entity and the name of every member of that entity’s board of directors. In response,
Plaintiff objected, contending that the request was overly broad and unduly burdensome.
Notwithstanding its objection, Plaintiff advised PEI that: (1) it owns 30% of the stock of
AltEn, LLC, the current owner of the Plant; (2) the managers of AltEn, LLC are Dennis
Langley, Scott Asner and Phillip Rouse; and (3) AltEn, LLC does not have a board of
directors. Interrogatory No. 40 asks whether certain named individuals have ever been
employed by “You,” and requests the individuals’ dates of employment, their titles while
working for “You,” each individuals’ email address, the amount of interest held by the
individuals in any of “Your” companies and the amount of any ownership interest that they
have in any of the entities that now have an ownership interest in the Plant. Plaintiff
answered by stating that the named individuals were employees of Plaintiff or related
companies prior to the bankruptcy, none of the individuals are currently employed by
Plaintiff and that two of the individuals own 100% of the stock of Plaintiff. Interrogatory
No. 41 asks Plaintiff to state the amount of interest held by “You” in AltEn, LLC, AltEnergy
Holding, LLC or AltEn Opportunity, I, LP. Plaintiff responded, stating that it owns 30% of
the stock of AltEn, LLC and that it does not own any of the stock of the other two entities.
In responding to the discovery requests, Plaintiff objected to PEI’s definition of the
terms “You” and “Your” as being overly broad. (Filing 125-2.) Plaintiff asserted that the
definition was improper because it included legal entities and people who had nothing to do
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with the Ethanol Plant and/or the Boiler System. Therefore, in answering the interrogatories,
Plaintiff construed the terms to mean “[P]laintiff and any of the related companies or legal
entities that were involved in the Ethanol Plant and/or the Boiler System.” (Id.) PEI has not
challenged Plaintiff’s narrowing of the definition of “You” and “Your.” Rather, PEI claims
that even using Plaintiff’s definition, Plaintiff’s responses to Interrogatory Nos. 39 through
42 are incomplete. For instance, with respect to Interrogatory Nos. 39 and 41, PEI contends
that Plaintiff’s responses are deficient because Plaintiff did not disclose its ownership in the
“related companies” involved in the Ethanol Plant or whether the “related companies” have
an interest in other companies, such as AltEn, LLC or its member corporations.
One problem here is that it is unclear what Plaintiff included within the term “related
companies” when responding to PEI’s discovery requests. Because PEI has not objected to
Plaintiff’s definition of the terms “You” and “Your,” the Court will not attempt to construe
the term “related companies” or assess whether Plaintiff provided all information consistent
with its supplied definition. Moreover, Plaintiff’s apparent inclusion of only itself within the
terms “You” and “Your” when answering these interrogatories is reasonable given the
context and information sought through the requests. Therefore, the Court finds that
Plaintiff’s responses to Interrogatory Nos. 39 and 41 are sufficient. The Court does find,
however, that Interrogatory No. 40 requires supplementation. This interrogatory asks for
things such as dates of employment, job titles and email addresses which were not provided.
Although this information may be available from other sources, it would not be unduly
burdensome for Plaintiff to provide it in response to this interrogatory. Therefore, Plaintiff
shall supplement its response to Interrogatory No. 40 so as to include this missing
information.
Interrogatory No. 42 asks Plaintiff to state the amount of interest held by its attorney
in AltEn LLC, AltEnergy Holding, LLC and AltEn Opportunity I, LP. Plaintiff objected
claiming that any ownership interest that Plaintiff’s counsel has in the named entities has no
bearing on any issues in this case and that the interrogatory improperly seeks discovery from
non-parties. PEI maintains that it is entitled to a response because at least one of Plaintiff’s
attorneys, Phillip Rouse, has an interest in AltEn, LLC and is also on AltEn, LLC’s board of
directors. The Court will not compel Plaintiff to respond to this interrogatory as it is unclear
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how the amount of interest that Plaintiff’s attorneys have in non-parties is relevant to any
genuine issues in this suit.
Document Production Request No. 51 asks Plaintiff to produce its articles of
incorporation and bylaws. Plaintiff shall provide this information as producing it would not
be overly burdensome and this documentation could lead to the discovery of admissible
evidence. Similarly, Document Production Request No. 52 asks that Plaintiff provide the
articles of incorporation and bylaws for AltEn, LLC, AltEnergy Holdings, LLC and AltEn
Opportunity, I, LP. If Plaintiff possesses or controls these materials, Plaintiff shall produce
them. If Plaintiff does not have possession or control of these items, Plaintiff shall so notify
PEI.
F.

Information Pertaining to Plaintiff’s Website

Interrogatory No. 46 seeks a host of information pertaining to Plaintiff’s website,
including information for every person who ever worked on the website and the dates of, and
reasons for, any changes to the website. Document Request No. 62 seeks any and all
documents authored by Plaintiff, its lawyers or its agents that were written to Plaintiff’s
website designer, contributors, server and/or host in 2011 or receipts from these
individuals/entities for work completed on Plaintiff’s website. Plaintiff objected to these
requests, arguing that they are not reasonably calculated to lead to the discovery of
admissible evidence. Like Plaintiff, the Court does not see the relevance of these requests
to the issues involved in this case. PEI’s motion to compel will be denied as to these
discovery requests.
G.

Attorney-Client Privilege and Work Product Doctrine.

Plaintiff has withheld information responsive to Interrogatory Nos. 30, 31, 44, 45 and
47, as well as Document Production Request Nos. 10, 11, 12 and 38, asserting the attorney
client privilege and/or work product doctrine. The attorney client privilege shields from
disclosure confidential communications made for the purpose of facilitating the rendition
of legal services. Neb. Rev. Stat. § 27-503. A communication is confidential “if not
intended to be disclosed to third persons other than those to who disclosure is in furtherance
of the rendition of professional legal services to the client or those reasonably necessary for
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the transmission of the communication.” Id. The work product doctrine is distinct from and
broader than the attorney client privilege. In re Murphy, 560 F.2d 326, 337 (8th Cir. 1977).
It shields from disclosure documents and other tangible things that are prepared in
anticipation of litigation by or for another party or its representative, including the party’s
consultants, insurers and agents. Fed. R. Civ. P. 26. “While litigation need not be imminent,
the primary motivating purpose behind the creation of a document or investigative report
must be to aid in possible future litigation.” Janicker v. George Washington, Univ., 94 F.R.D.
648, 650 (D.D.C. 1982). The test for determining whether a document was prepared in
anticipation of litigation is whether, “in light of the nature of the document and the factual
situation in the particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.” Simon v. G.D. Searle & Co., 816 F.2d 397,
401 (8th Cir. 1987) (quotation and citation omitted).
Interrogatory Nos. 30 and 31 ask Plaintiff to disclose information regarding any
employees, experts, consultants or other persons acting on Plaintiff’s behalf who have
examined the scene of the boiler explosion or the instrumentalities/equipment involved in the
incident. Plaintiff contends that the information sought is privileged and, additionally, that
the discovery requests are an improper attempt to circumvent the expert witness disclosure
rules. PEI concedes that Plaintiff need not provide information regarding its consulting or
testifying experts. Instead, it wants Plaintiff to disclose its employees who inspected the
boilers before litigation was anticipated. This information is discoverable. Accordingly,
Plaintiff shall supplement its responses to Interrogatory Nos. 30 and 31 so as to provide PEI
with a list of individuals who inspected the boilers before litigation was anticipated. Plaintiff
need not identify its experts or consultants. Plaintiff should supply the information requested
by the sub-parts of Interrogatory No. 31 as appropriate per the confines explained above.
Plaintiff also refuses to answer Interrogatory No. 44, which asks Plaintiff to identify
when it first contemplated filing suit against PEI, on the basis of the attorney client privilege
and work product doctrine. Plaintiff contends that answering this interrogatory would
necessarily reveal conversations between Plaintiff’s management and their counsel. The
Court believes that in response to this interrogatory, Plaintiff need not disclose any
communications. Rather, it is sufficient to give PEI a rough estimate of when litigation was
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contemplated. Plaintiff shall supplement its response accordingly.
Interrogatory No. 45 requests that Plaintiff state how it endeavored to preserve and
protect any potentially relevant documents or electronically stored data after it contemplated
litigation. In response to these interrogatory, Plaintiff stated that as soon as Plaintiff
anticipated litigation, Plaintiff “took every reasonable step it legally could to collect and
preserve all documents and electronic data that might reasonably be relevant to any claims
and defenses that might be asserted.” (Filing 125-2.) The steps Plaintiff took or general
procedure it used to preserve information in anticipation of this lawsuit is not privileged
information. Plaintiff shall supplement its response to include more specificity.
Interrogatory No. 47 asks Plaintiff to list every legal matter for which one of the law
firms of record in this case provided Plaintiff with legal services or representation, the scope
of the work that the firm was to perform and the inclusive dates of representation. PEI has
not shown how this interrogatory is relevant to the issues involved in this case. Moreover,
this request most certainly encompasses privileged information. Plaintiff’s objection to this
interrogatory is sustained.
Document Production Request No. 10 asks Plaintiff to produce copies of photographs,
maps, drawings or illustrations taken by Plaintiff or its representatives that depict damage to
the boilers.

Document Production Request No. 12 seeks the production of reports,

investigations and correspondence pertaining to efforts to repair the damage to the boilers.
Document Production Request No. 11 seeks all accident reports, notes, correspondence,
logbooks or other writings pertaining to the explosion that were authored by any law
enforcement agency, governmental entity, expert or insurance company. Plaintiff objected
to each of these requests, asserting that they seek privileged documents and materials
generated by retained or non-retained experts. Subject to these objections, Plaintiff stated
that any responsive, non-privileged documents have been or will be produced. In response
to these requests, Plaintiff need not produce materials generated by its experts or consultants.
However, if Plaintiff has not done so, it must provide PEI with a privilege log, listing all
documents it is withholding as privileged.

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Request for Production No. 38 asks Plaintiff to produce documents that discuss
actions or efforts to shut down or “moth ball” the Boiler System in the Ethanol Plant when
the bankruptcy proceeding was commenced. Plaintiff has agreed to produce any nonprivileged materials. Plaintiff shall produce the documents requested in accordance with the
provisions of this Order. Again, documents withheld on the basis of privilege must be listed
on a privilege log.
H.

Other Issues Pertaining to Adequacy of Discovery Responses

PEI argues that Plaintiff should be ordered to provide more detailed information when
answering interrogatories and when identifying or producing documents. PEI has identified
several areas of purported deficiencies in Plaintiff’s responses.
First, PEI claims that Plaintiff’s response to Interrogatory No. 1, which asks for the
name, address, telephone number, employer’s name and title of each person who assisted in
responding to PEI’s discovery requests, is incomplete. In response to this interrogatory,
Plaintiff provided the names of individuals that helped complete the answers, but did not
provide the address, telephone number, employer’s name or title of each person listed.
Because it would not be overly burdensome for Plaintiff to do so, Plaintiff shall supplement
its response to include the omitted information.
Additionally, PEI claims that Plaintiff’s responses to Interrogatory Nos. 3, 5, 8, 9, 10,
18, 19, 20, 22, 24, 25, 26, 29 and 33 contain legal conclusions which should be stricken as
non-responsive and that Plaintiff should be required to supplement these interrogatories.
Having studied Plaintiff’s responses, the Court concludes that Plaintiff’s answers to these
interrogatories are not objectionable on this basis. Plaintiff’s inclusion of facts mixed with
its theory of the case does not make the responses evasive.3
Interrogatory No. 22 and Document Production Request No. 1 seek the names and
addresses of all persons who were eyewitnesses to the boiler explosion at issue in this

3

Plaintiff shall supplement its responses to these interrogatories, if necessary, as
otherwise directed in this Order.
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litigation and the identification and production of statements given by such witnesses. PEI
claims that Plaintiff’s answers are incomplete and argues that Plaintiff failed to list at least
three of its employees who heard the incident and who filled out a report to document their
observations. PEI further complains that Plaintiff failed to mention witness statements
provided by three other employees that Plaintiff listed as witnesses. The Court finds that
Plaintiff properly responded to Interrogatory No. 22 by listing the individuals who viewed,
rather than heard, the incident as this is a reasonable interpretation of the interrogatory.
However, Plaintiff’s answer indicates that Plaintiff is aware of documents containing witness
statements and states that “most, if not all” of the documents have been produced. (Filing
125-2.) Plaintiff’s response in this regard is confusing and seemingly incomplete. If Plaintiff
is in possession of additional non-privileged, responsive documents, they must be produced.
Likewise, non-privileged items responsive to Request No. 1 shall be provided. Privileged
materials must be listed on a privilege log.
Similarly, PEI maintains that Plaintiff failed to fully respond to Interrogatory Nos. 23,
24, 25, 29 and 32. These interrogatories request the identities of individuals with knowledge
that bears on (1) the issues in this case; (2) the physical damage caused by the incident at
issue in this litigation; (3) the economic or financial damages caused by the incident; (4) the
names of every person who claims to have seen or heard PEI’s representatives make any
statements related to the claims and/or defenses being asserted in this case and (5) the
identities of Plaintiff’s employees over the course of the project. PEI asks that the Court
order Plaintiff to supplement its responses to these interrogatories and, in support, points to
supposedly responsive information which Plaintiff did not provide, despite the discovery
requests. Having reviewed Plaintiff’s answers, it seems that, despite its objections and the
breadth of the requests, Plaintiff has endeavored to provide the information reasonably
sought and the Court does not find Plaintiff’s answers purposefully evasive or incomplete.
However, to the extent, if any, that Plaintiff has not supplied information responsive to these
interrogatories, it shall do so in accordance with the terms of this Order. Again, however,
Plaintiff has no obligation to identify consultants or experts.

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I.

Identification and Production of Documents

Throughout its responses to PEI’s Document Production Requests, Plaintiff states that
“responsive documents have been or will be produced.” (Filing 125-3.) These responses are
improper because it remains unclear whether all documents in Plaintiff’s possession or
control have been provided. Therefore, Plaintiff must supplement its responses so as to
definitively state whether all documents have been produced. Any responsive documents that
are being withheld on the basis of privilege must be listed on a privilege log.
PEI also takes issue with the form of Plaintiff’s document production, arguing that
Plaintiff provided no assistance in helping PEI to locate responsive documents. (Filing 1253, Plaintiff’s Responses to Document Production Request Nos. 1, 2, 4-36, 38-43, 45-50, 5357, 59, 61 and 63.) According to PEI, Plaintiff has produced an enormous number of
documents and the documents were not accompanied by an indices or other tool to guide PEI
to the responsive materials. Plaintiff counters, maintaining that both parties have relied upon
Fed. R. Civ. P. 34 by producing documents “as they are kept in the usual course of business”
and that both parties have produced documents electronically, so either party can easily look
for and find whatever documents they need.
The Court will not compel Plaintiff to re-organize its document production. Plaintiff
represents that it has produced the documents as they are kept in the usual course of business
and, it appears, that PEI has engaged in the same production tactics. Moreover, the nature
of the documents here, third-party contracts, logs, photographs, etc . . ., are of such a nature
that they can be identified just as easily by PEI as by Plaintiff.
Several of Plaintiff’s interrogatory answers refer PEI to Plaintiff’s document
production for the information sought. (Filing 125-2, Plaintiff’s Answers to Interrogatory
Nos. 11, 12, 13, 16, 17, 18, 19, 22, 24, 29, 36 and 43.) PEI again complains that little, if any,
guidance was provided to help PEI find the responsive documents. Additionally, PEI asserts
that Plaintiff cannot simply refer to produced documents as a response to an interrogatory
unless the documents supply all of the information sought by the interrogatory.

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Federal Rule of Civil Procedure 33(d) permits a party to respond to interrogatories by
producing documents. However, “[i]f a party responds to interrogatories pursuant to Rule
33(d), it must specify the documents from which the responses to the interrogatories can be
derived in sufficient detail to enable the interrogating party to locate the documents as readily
as the responding party could.” Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105, 1108
(D. Neb. 2009). “It is not sufficient for a responding party to simply direct the interrogating
party to a mass of business records.” Id.
The Court concludes that Plaintiff’s answers to Interrogatory Nos. 11, 12, 13, 16, 17
and 24 properly refer to and identify seemingly responsive documents. The answers identify
the documents relied upon (e.g., contracts produced at the onset of discovery) with sufficient
detail so as to enable PEI to locate the materials as readily as could Plaintiff. However, to
the extent, if any, that the information sought through the interrogatories is not contained
within the documents cited, the answers must be supplemented to provide the remainder of
the requested information.
Plaintiff’s responses to Interrogatory Nos. 18, 19, 22, 29, 36 and 43 require
supplementation, however. The answers to these interrogatories are not clear as to whether
all responsive documents have been produced and, particularly with respect to Interrogatory
No. 36, the answer simply refers PEI to “documents that have been or will be produced.”
(Filing 125-2.) This response does not provide enough specificity to allow PEI to locate the
documents.
Accordingly,
IT IS ORDERED that PEI’s Motion to Compel (filing 123) is granted, in part, as set
forth above. Plaintiff shall supplement its discovery responses and produce a privilege log
within 45 days of this Order.
DATED June 29, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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