West Plains, L.L.C. v. Retzlaff Grain Company Incorporated, et al

Filing 95

ORDER - Plaintiff's Motion to Compel Discovery Responses (filing #77 ) is granted, inpart, as set forth. Defendants' Motion to Compel Discovery Responses (filing #80 ) is granted as set forth. Ordered by Magistrate Judge F.A. Gossett. (AOA) Modified on 6/4/2014 (AOA, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WEST PLAINS, L.L.C.,

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Plaintiff,
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V.
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RETZLAFF GRAIN COMPANY
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INCORPORATED, BRYCE WELLS, )
JEFFREY BRADLEY, THOMAS
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DANNER, REBECCA DANNER,
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JODY MAY, CHAD NEEDHAM,
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TODD PAYZANT, SAMANTHA
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RHONE, CRYSTAL KONECKY,
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CINDY SCHOLTING, and DREW
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WAGGONER,
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Defendants.
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8:13CV47

ORDER

This matter is before the Court upon the Motion to Compel filed by Plaintiff (filing
77), as well as the Motion to Compel (filing 80) filed by Defendants. Plaintiff’s motion will
be granted, in part, and Defendants’ motion will be granted in its entirety.
BACKGROUND
Defendants Jeffrey Bradley, Thomas Danner, Rebecca Danner, Jody May, Chad
Needham, Todd Payzant, Samantha Rhone, Crystal Konecky, Cindy Scholting and Drew
Waggoner (“Individual Defendants”) resigned from their employment with Plaintiff on
February 5, 2013, and became employed with Defendant Retzlaff Grain Company
Incorporated d/b/a/ RFG Logistics (“RFG Logistics”). Plaintiff filed this suit on February
8, 2013, alleging that Defendants conspired to misappropriate Plaintiff’s confidential and
proprietary information and intentionally used that information to steal Plaintiff’s customers,
damage Plaintiff’s goodwill, erode Plaintiff’s market share, and tortiously interfere with
Plaintiff’s business relationships.

Upon motion by Plaintiff, the Court entered a temporary restraining order (“TRO”)
on February 12, 2013 (filing 17), and a preliminary injunction on February 26, 2013 (filing
45), restraining Defendants from soliciting or contacting customers with whom the Individual
Defendants dealt with on behalf of Plaintiff until April 5, 2013. The preliminary injunction
also restrained Defendants from using or disclosing Plaintiff’s confidential information and
trade secrets. (Filing 45.)
DISCUSSION
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 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
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).

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I.

Plaintiff’s Motion to Compel

Plaintiff served its First Set of Interrogatories and First Set of Requests for Production
of Documents on July 3, 2013.1 Defendants served responses to those discovery requests on
August 19, 2013, objecting to Interrogatory Nos. 3-6 and 8-9, and Document Request Nos.
4-7 and 9-12. Generally, these requests seek information regarding communications between
(1) Defendant Bryce Wells (“Wells”) and the Individual Defendants regarding an Individual
Defendants’ employment with RFG Logistics; (2) Defendant Wells and the Individual
Defendants regarding customers, customer representatives, carriers or drivers; and (3) any
Individual Defendant and Plaintiff’s customers, customer representatives, carriers, or drivers
regarding Defendants’ departure from Plaintiff and/or subsequent employment with RFG
Logistics. The discovery requests also seek information regarding RFG Logistics’s business
activities, income and revenue.
Defendants object to these requests, contending that they seek irrelevant information,
at least to the extent that they relate to communications that took place between February 5,
2013 and February 12, 2013, and after April 5, 2013, which is the time period before the
Court’s TRO was entered and after the Court’s preliminary injunction expired. Defendants
maintain that communications that took place during this time frame are irrelevant because
the Individual Defendants were allowed to compete against Plaintiff and provide logistic
services at that time. Defendants further assert that because Plaintiff’s computer expert
imaged Defendants’ work computers at RFG Logistics in March of 2013, Plaintiff should
already be in possession of any communications that occurred from February 5, 2013 through
February 12, 2013. Defendants also note that they have offered to make the Individual
Defendants’ personal and home electronic devices available to Plaintiff’s computer expert
for imaging, at Plaintiff’s cost.
Defendants additionally maintain that given the volume of communications between

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The Individual Defendants and Defendant RFG Logistics all separately answered
Plaintiff’s First Set of Interrogatories. Although the Defendants’ substantive answers differ,
the parties agree that the objections to the discovery requests lodged by all Defendants are
identical.
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the Individual Defendants and customers, it would be unduly burdensome and expensive to
require production of each and every communication that has occurred from February 5,
2013, through the present. Defendants contend that they are in constant contact with
customers and carriers through various forms of communication, including sending and
receiving approximately 115 to 125 emails per day, and placing and receiving 50 to 100
phone calls per day.
Upon consideration of the matter, the Court finds that the communications occurring
during the subject time frame are relevant and, except as later detailed in this Order,
production of the requested materials would not be overly burdensome. This case involves
allegations that Defendants misappropriated Plaintiff’s confidential information and used that
information to interfere with Plaintiff’s business relationships. Plaintiff is entitled to discover
any use by Defendants of Plaintiff’s confidential and trade secret information. Although
Plaintiff has imaged Defendants’ computers, this does not mean that other responsive
materials do not exist elsewhere. The Court recognizes that document production may be
voluminous, but this circumstance is insufficient to preclude production in this instance.
Although a significant number of documents may be responsive, the requests, with the
exception of those discussed below, are sufficiently narrowly crafted. Also, it appears that
responsive documents may located, at least in part, through electronic searches. Therefore,
by July 3, 2014, Defendants shall supplement their discovery responses to account for
communications which occurred after February 5, 2013.
However, Defendants’ Court ordered supplementation of Interrogatory No. 3 and
Document Production Request Nos. 4 and 5, which seek information regarding the Individual
Defendants’ employment at RFG Logistics, will be limited by the Court. While information
pertaining to the circumstances surrounding an Individual Defendants’ eventual employment
with RFG Logistics is certainly relevant, the scope of these requests is somewhat troubling.
Interrogatory No. 3 asks that Defendants “[i]dentify any and all oral or written
communications . . . between any Individual Defendant and Defendant Bryce Wells from
December 1, 2012 to the present, regarding an Individual Defendant’s employment or
potential employment at RFG Logistics . . .” (filing 79-3) (emphasis added). Document
Request No. 4 asks for the production of “all documents that evidence or otherwise relate to
communications between any Individual Defendant and any other person, during the period
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of time from March 1, 2012, through the present, regarding the Individual Defendant’s
resignation or termination of employment [with Plaintiff] and/or subsequent employment at
RFG Logistics” (filing 79-2) (emphasis added). Document Request No. 5 requests “all
documents that evidence or otherwise relate to communications between any Individual
Defendant and Defendant Bryce Wells or any other representative of RFG Logistics, during
the period of time from March 1, 2012, through the present, regarding employment or
potential employment with RFG Logistics.” (Id.) (emphasis added).
The Court finds that Interrogatory No. 3 and Document Production Request Nos. 4
and 5 are overly broad. As written, the requests encompass ordinary, day-to-day
employment issues that have nothing to do with this suit. To require the Individual
Defendants to identify each and every communication concerning their subsequent
employment with RFG Logistics is simply unrealistic. Given the breadth of these requests,
the Court will order Defendants to supplement their responses to the extent that Defendants
have not revealed communications regarding the Individual Defendants’ resignation or
termination of employment with Plaintiff and/or potential employment with RFG Logistics.
Defendants also object to Interrogatory Nos. 8-9 and Document Request Nos. 9-12,
which seek information regarding RFG Logistics’s business activities, income and revenue,
on the grounds of relevance and scope. The Court finds that these requests are relevant, as
they pertain to the assessment of damages, if any, in this case. The Court further finds that
the requests are not overly broad. Therefore, Defendants shall supplement their responses
to these discovery requests by July 3, 2014.
II.

Defendants’ Motion to Compel

Defendants request that Plaintiff supplement its responses to Interrogatory Nos. 6, 9,
and 12, as well as Document Request Nos. 2-6, 8-10, 13, and 15-21. Plaintiff has agreed to
supplement its responses to Interrogatory Nos. 6 and 9. Moreover, Plaintiff represents that
its response to Interrogatory No. 12 is complete, and Defendants are satisfied with Plaintiff’s
representation in this regard. Plaintiff has also agreed to supplement its responses to
Document Production Request Nos. 10 and 20. Accordingly, this Order will only address
Defendants’ complaints with respect to Plaintiff’s responses to Document Request Nos. 2-6,
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8, 9, 13, 15-19, and 21.
Defendants maintain that Plaintiff’s responses to the subject Document Requests are
insufficient because Plaintiff failed to identify with particularity the documents that are
responsive to each individual Request. In response to Defendants’ Request for Production
of Documents, Plaintiff produced 1,870 bates-stamped documents and a separate CD labeled
“CT Freight/Plaintiff Disc A,” which contains a large number of documents. Rather than
specifically identifying responsive documents for each Request, Plaintiff responded to the
Requests by stating that it conducted a diligent search and will produce responsive
documents. Plaintiff claims that because Defendants failed to identify responsive documents,
it is impossible for them to determine which documents are responsive to each particular
Request. Plaintiff argues that its responses are sufficient because the documents were
produced as they are kept in the usual course of business, and because the files contained on
Disc A are labeled and the contents can be deciphered by simply viewing the documents.
The Court finds that Plaintiff’s responses are insufficient. Plaintiff produced
thousands of documents. Although some of the documents were divided into files on Disc
A, the document production was not accompanied by any indices to guide Defendants to
responsive materials. Defendants should not have to sift through a multitude of documents
in order to find responsive materials, particularly when Plaintiff is seemingly more familiar
with the documents. See Graske v. Auto-Owners Ins. Co., 647 F. Supp.2d 1105, 1108-09 (D.
Neb. 2009) (finding the defendant’s responses to document production requests insufficient
when the defendant produced thousands of documents without any indices or other tool to
guide plaintiffs to the responsive materials). Although Fed. R. Civ. P. 34 allows a
responding party to produce documents in the manner they are kept in the usual course of
business, “the same rules that apply to producing documents under Rule 33(d) are generally
applicable to Rule 34.” Id. at 1108. While Fed. R. Civ. P. 33 permits a party to respond to
interrogatories by producing business records, the records must be described in sufficient
detail to enable the requesting party to readily identify them. Fed. R. Civ. P. 33.
Accordingly, by or before July 3, 2014, Plaintiff shall supplement its responses to
Interrogatory Nos. 6 and 9, as well as Document Production Request Nos. 10 and 20. By
said date, Plaintiff shall also supplement its responses to Document Request Nos. 2-6, 8, 9,
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13, 15-19, and 21 by producing an indices or other tool to guide Defendants to the documents
responsive to each individual Request.
IT IS ORDERED:
1.

Plaintiff’s Motion to Compel Discovery Responses (filing 77) is granted, in
part, as set forth above.

2.

Defendants’ Motion to Compel Discovery Responses (filing 80) is granted as
set forth above.

DATED June 3, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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