Jackson Harmon Enterprises, LLC, v. Insurance Auto Auctions, Inc.

Filing 121

MEMORANDUM AND ORDER - 1) The plaintiff's motion to compel and for extension of the discovery deadlines, (Filing No. 78 ), is denied. 2) The defendant's motion for an amended protective order. (Filing No. 94 ), is granted. The amended protective order will be separately entered in accordance with this order. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JACKSON HARMON ENTERPRISES,
LLC, A Nebraska Limited Liability
Company;

8:13CV3194

Plaintiff,
MEMORANDUM AND ORDER
vs.
INSURANCE AUTO AUCTIONS, INC.,
An Illinois Corporation;
Defendant.
On August 4, 2014, the court entered a memorandum and order ruling on a motion
to compel filed by the plaintiff and a motion for protective order filed by the defendant.
(Filing No. 67). Pending before me is the plaintiff’s second motion to compel, along with
its request to extend the discovery deadlines, (Filing No. 78), and the defendant’s second
motion for protective order. (Filing No. 94). These second motions address topics that
were not raised in the parties’ prior motions: Neither party claims the court’s prior order
was violated.

For the reasons discussed below, the plaintiff’s motion to compel and to continue
the discovery deadlines, (Filing No. 78), will be denied. And the defendant’s motion for
an amended protective order, (Filing No. 94), will be granted.

ANALYSIS

The court’s prior discovery order, (Filing No. 67), outlined the allegations
underlying this case. That discussion will not be repeated herein.

1.

Procedural Background.

The plaintiff’s complaint was filed in state court on October 24, 2013. The
plaintiff served discovery on the defendant the same day. (Filing No. 29-1, Filing No.
29-1). The plaintiff’s complaint was removed to this forum on November 20, 2013.
(Filing No. 1). On January 17, 2014, the parties completed a Rule 26(f) Report and
jointly requested a written discovery deadline of May 15, 2014, and a deposition deadline
of August 1, 2014. (Filing No. 12, at CM/ECF p. 8, ¶ E).

The court adopted these

suggestions, entering a final progression schedule on January 31, 2014 which ordered:
The deadline for completing written discovery under Rules 33 through 36
of the Federal Rules of Civil Procedure is May 15, 2014. Motions to
compel Rule 33 through 36 discovery must be filed by May 1, 2014.
...
The deposition deadline is August 1, 2014.
(Filing No. 14, at CM/ECF p. 14, ¶¶ 6, 9).

The defendant’s initial discovery responses, served in February of 2014, (Filing
No. 29-3; Filing No. 29-5; Filing No. 29-6)), raised objections but provided some of the
requested information. The plaintiff was dissatisfied with the defendant’s responses. As
applied to this motion, the plaintiff asserted it was entitled to a response to Interrogatory
13, and that defendant’s responses to Requests 5 and 6 were unacceptable. In a letter
dated February 24, 2014, Plaintiff’s counsel warned: “Please consider this our final
request for compliance with the discovery requirements imposed by the Federal Rules,
and our final attempt to resolve this matter without court involvement. If you do not
supplement your responses within 7 days, we shall file a motion to compel.” (Filing No.
29-9).

2

As applied to the pending motion to compel, Interrogatory 13 and Requests 5 and
6 demanded “Hauling Transfer” information and related documents, documentation of
any business transacted between Plaintiff and Defendant at any time within the past 5
years, and all tow bills from Defendant to Plaintiff from January 1, 2010 to September
17, 2013. By letter dated March 4, 2014, the defendant responded that a request to
identify all vehicles showing “hauling transfers” for the referenced dates and for all of
IAA's locations was irrelevant and unduly burdensome. The defendant confirmed it had
already produced the information for lot-to-lot transfers involving Midwest Towing.
Defense counsel further noted, “We have asked our client to further address this
interrogatory. As such, we are presently determining whether or not any further
documents are responsive to this interrogatory, though further production, if any, will be
limited to hauling transfers for the Omaha branch from March 8, 2010 to July 31, 2013.”
(Filing No. 29-10) (emphasis added). The letter from defense counsel did not promise
production of further documents, nor did it promise that any further production would
include every document the plaintiff requested—even as to hauling transfers for the
Omaha branch.

On April 11, 2014, the defendant supplemented its discovery responses as follows:
INTERROGATORY NO. 13: Identify all vehicles which show “Hauling
Transfer” in the ASAP program from March 8th, 2010 to July 31st, 2013
and for each such vehicle:
i)

identify the Vendor that towed the vehicle to IAA; and

ii)

identify the Vendor that performed the “Hauling Transfer”.

ANSWER: Objection. This interrogatory is unduly burdensome,
insufficiently limited in time and scope, and it seeks information that is
irrelevant and, therefore, not reasonably calculated to lead to the discovery
of admissible evidence.
SUPPLEMENTAL ANSWER: Subject to and without waiving its previous
objections and answer to this interrogatory, documents regarding hauling

3

transfers performed by plaintiff for IAA's Omaha branch are produced
herewith as Bates Nos. IAA00242 -05565.
(Filing No. 93-1, at CM/ECF p. 17) (emphasis added).

REQUEST NO. 5: Without limiting the generality of the foregoing, all files
and documents of INSURANCE AUTO AUCTIONS, INC., created or
received from January 1, 2010 to September 17, 2013, which refer to,
evidence, or relate to anyone or more of the following:
...
f) . . . 2 stop charges, as defined in the Complaint;
...
i) . . . any business transacted between Plaintiff and Defendant at
any time within the past 5 years;
...
k) . . . all tow bills from Defendant to Plaintiff from January 1, 2010
to September 17, 2013.
RESPONSE: Objection. This Request and its subparts are overbroad,
vague, ambiguous, and unduly burdensome with respect to the term "relate
to." Defendant further objects because this Request and its subparts seek
information that is irrelevant and, therefore, not reasonably calculated to
lead to the discovery of admissible evidence. Defendant further objects to
the extent this Request and its subparts seek information protected from
disclosure under the attorney-client privilege and/or work product doctrine.
Subject to and without waiving said objections, see 1
a)

March 8, 2010 Towing Services Agreement between Jackson
Harmon Enterprises, LLC, OBA: Midwest Towing and IAA.
(Bates Nos. IAA00001-IAA00003);

b)

March 8, 2010 IAA/Tower Service Level Agreement {Bates
Nos. IAA00004-IAA00008);

1

Based on the court’s review, the defendant’s alphabetic listing of documents
provided is not intended to correspond to the alphabetic listing of the plaintiff’s requests;
for example, response “k)” is not answering request “k).’
4

c)

Exhibit A to the March 8, 2010 Towing Services Agreement
between Jackson Harmon Enterprises, LLC, OBA: Midwest
Towing and IAA. (Bates No. IAA00008);

d)

Amended Exhibit A to the March 8, 2010 Towing Services
Agreement between Jackson Harmon Enterprises, LLC,
OBA: Midwest Towing and IAA, effective October 1, 2012.
(Bates No IAA00010);

e)

June 28, 2013 Notice of Termination (Bates Nos. IAA00011IAA00012);

f)

Tow bills for Seconds Stops paid by Omaha Branch for 20092014 (Bates Nos. Bates Nos. IAA00013-IAA00072);

g)

April 13, 2011 letter regarding Midwest Towing from Capitol
Towing, Inc. (Bates Nos. IAA00073);

h)

Spreadsheets regarding lot to lot transfers for Midwest
Towing (Bates Nos. IAA0007 4-IAA00127);

i)

KPI Tower Efficiency Reports for Midwest Towing through
October 24, 2013(Bates Nos. IAA00128-IAA00131 );

j)

Spreadsheet regarding payments made to Midwest Towing
from January 2010 to August 2013 (Bates Nos. IAA00132IAA00157);

l)

Real Estate Abstracts for Omaha lots. To be produced upon
entry of a protective order;

m)

Lease documents for Omaha lots. To be produced upon entry
of a protective order.

n)

Email communications between the parties (Bates Nos.
IAA00158-00208)

Discovery continues.
SUPPLEMENTAL RESPONSE: Subject to and without waiving its
previous objections and answer to this Request, see the following attached
hereto:
o)

IAA Request For Proposal standard form (Bates Nos.
IAA00209-00211 );

p)

Documents supplied by Midwest in support of its Proposal
(Bates Nos. IAA00212-00224 );

q)

IAA Implementation checklist executed by the parties on
March 15, 2010 (Bates No. IAA00225);
5

r)

Email communications regarding Midwest Towing (Bates
Nos. IAA 00226-00241 ). These contain redactions of
forwarding information to attorney for defendant.

Discovery continues.
REQUEST NO. 6: Without limiting the foregoing, all Documents of record
evidencing, referring or relating to:
i)

the stock number of all vehicles in the ASAP program from
March 8, 2010 to July 30, 2013, described as "Hauling
Transfer";

ii)

the vendor that towed each vehicle identified in subparagraph
i to IAA; and

iii)

the vendor that performed the "Hauling Transfer" for each
vehicle identified in subparagraph i to IAA.

RESPONSE: Objection. This Request and its subparts are overbroad,
unduly burdensome, and it seeks information that is irrelevant and,
therefore, not reasonably calculated to lead to the discovery of admissible
evidence.
SUPPLEMENTAL RESPONSE: Subject to and without waiving its
previous objections and answer to this Request, documents regarding
hauling transfers performed by plaintiff for IAA's Omaha branch are
produced herewith as Bates Nos. IAA00242 -05565.
(Filing No. 93-1, at CM/ECF pp. 27-30) (emphasis added).

On April 30, 2014, the parties conferred to discuss their discovery disputes.
During that call, they agreed to attempt to supplement their respective discovery
responses with the hope of reducing the disputes raised by motions to compel. To
facilitate these ongoing efforts, at the parties’ joint request, (Filing No. 22), the deadline
for filing motions to compel was extended to June 16, 2014. (Filing No. 23). 2 By order

2

In its brief in support of the current motion to compel, Plaintiff’s counsel argues
this court’s initial May 1, 2014 deadline for filing motions to compel was “highly
problematic.” (Filing No. 81, at CM/ECF p. 22). The problems described in Plaintiff’s
brief should have been remedied by the court’s order extending the motion to compel
deadline by 45 days.
6

dated July 1, 2014, the deposition deadline was extended to August 15, 2014. (Filing No.
53).

The plaintiff’s first motion to compel was timely filed on May 19, 2014, (Filing
No. 28), and the defendant’s motion for protective order was filed on May 23, 2014.
(Filing No. 32). After response continuances were granted at the parties’ request, these
motions were fully submitted on July 10, 2014. (Filing No. 63). The court’s order on
this first round of discovery motions was entered on August 4, 2014. (Filing No. 67).

After conferring with the parties on August 26, 2014, the court amended the
progression schedule, continuing the trial, pretrial motion, and summary judgment
deadlines at the parties’ request. The parties did not request a continuance of any other
progression deadline, including the deposition deadline or the deadline for filing motions
to compel. Those deadlines were not extended. (Filing No. 75).

The plaintiff’s pending motion to compel was filed on September 26, 2014.
(Filing No. 78); the defendant’s motion for protective order was filed on October 14,
2014. (Filing No. 94).

2.

Plaintiff’s motion to compel.

The plaintiff’s motion to compel requests an order requiring the defendant to
produce:
• Every document reflecting the plaintiff’s delivery of vehicles, trailers, campers
etc. to the outlying lots of the defendant’s Omaha branch; (Filing No. 78, at
CM/ECF p. 7, ¶ 5);
• The complete listing of all hauling transfer fees (a fee for hauling a vehicle or
trailer from one IAA location in Omaha to another IAA location in Omaha)
paid to Driggers, or any other tower; (Filing No. 78, at CM/ECF p. 7, ¶ 7);
7

• A complete record stating the location of all vehicles and trailers for which a
tow bill was issued to Midwest (“Location Document”); (Filing No. 78, at
CM/ECF p. 8, ¶ 8);
• A 30(b)(6) deposition relating to the deliveries of vehicles and trailers that
Midwest made to outlying lots; ((Filing No. 78, at CM/ECF p. 7, ¶ 6); and
• Selected excerpts from the IAA Salvage Book; (Filing No. 78, at CM/ECF p.
6, ¶ 4).

The plaintiff claims it must have the above information to determine the correct
and total number of vehicles Midwest delivered to outlying lots that involve an additional
stop for which a $25.00 fee is payable, and to refute the defendant’s claim that the
plaintiff’s damage calculations are incorrect. (Filing No. 78, at CM/ECF p. 8). The
defendant claims the plaintiff’s motion is untimely and the plaintiff has failed to show
due diligence in attempting to comply with the court’s deadline for filing a motion to
compel. The defendant also argues the information now requested was not within the
scope of the plaintiff’s discovery requests, it is not relevant to the issues presented in this
litigation, and the plaintiff cannot show that failing to reopen discovery will be
prejudicial to the plaintiff’s claims. Finally, to the extent the discovery requests could be
interpreted to include the plaintiff’s current document production demands, the defendant
stands on its prior objections, as stated in response to the discovery requests and in
correspondence thereafter, that the plaintiff’s requests are irrelevant and compliance
would be unduly burdensome.

Hauling Transfer and Location Records

8

The plaintiff demands production of documents showing plaintiff’s delivery of
vehicles, trailers, campers etc. to Omaha’s outlying lots, all hauling transfer fees paid to
any tower, and the location of all vehicles and trailers for which a tow bill was issued to
Midwest (“Location Document”). By doing so, the plaintiff is requesting records to
identify every “hauling transfer;” the movement of a vehicle or trailer initially delivered
to an outlying lot and then moved to IAA’s 52nd Street lot. The fee associated with this
transfer is a hauling transfer fee. (Filing No. 80, at CM/ECF p. 4, ¶10).

On July 11, 2014, the plaintiff sent a letter to the defendant requesting, among
other things, the documents showing all the deliveries “that Midwest made of vehicles,
trailers, campers etc. to lots other than 52nd street during the contract term.” (Filing No.
79-1). Midwest states that for each tow delivered to an outlying lot, Midwest was
required to make a stop in addition to the stops at the pickup point and the stop at the
52nd Lot, (Filing No. 80, at CM/ECF p. 4, ¶ 9), 3 and Midwest is entitled to recover a 2
stop charge for each of these tows.

The plaintiff’s July 11 letter did not request information regarding any tower other
than Midwest. Rather, it specifically noted, “All we are interested in is discovery of what
vehicles, trailers etc. IAA’s records reveal that Midwest hauled during the contract term

3

Under the Tower Service Level Agreement (TSLA), the tower must:
Tow to IAA, drop vehicle in Drop Zone, leaving 4-foot buffer
around vehicle.
Set the emergency brake and turn the ignition switch to “OFF”.
The completed Tow Bill and shop receipt are brought to IAA Office.
The Tow Bill blank copy is left in the car or as directed by Branch
Manager.
Key control and title procedures as directed by the Branch Manager.

(Filing No. 80, at CM/ECF p. 10). The plaintiff claims a 2 stop charge was earned
whenever Midwest delivered a vehicle to an outlying IAA lot and was then
required to deliver the Tow Bill to the 52nd street lot.
9

to lots other than 52nd Street.” (Filing No. 79-1, at CM/ECF p. 3, n. 1). 4 The plaintiff
claimed the information requested was responsive to Request 5 (f), (i), and (k), which
sought information regarding “2 stop charges, as defined in the Complaint;” “any
business transacted between Plaintiff and Defendant at any time within the past 5 years;”
and “all tow bills from Defendant to Plaintiff from January 1, 2010 to September 17,
2013.” (Filing No. 93-1, at CM/ECF pp. 27-28).

On July 24, 2014, the defendant responded:
We are trying to determine IAA’s ability to provide the requested
information. This is a timely process and one that will not be completed by
Friday. Therefore, I hope to have a response to you early next week with
respect to some, if not all, of your open requests. We are working
diligently and as that you wait to file your motion to compel until we are
able to respond.
(Filing No. 79-2).

The defendant responded on August 11, 2014, noting “the plaintiff’s additional
requests are outside the scope of Plaintiff’s Request for Production of Documents, and . .
. were made after the discovery deadline closed.” (Filing No. 79-16). But “in an effort to
avoid additional delay and to avoid involving the Court in this process,” (Filing No. 7916, at CM/ECF p. 1), the defendant provided additional information. However, as to the
request for data showing where Midwest delivered vehicles, the defendant responded:
You have requested that IAA pull together a spreadsheet showing where
each car towed by Midwest was delivered. This is a not a report that is
"stock" for IAA and IAA would be required to spend numerous hours to
have its employees write a special code to attempt to pull the data.

4

Likewise, on this motion to compel, the plaintiff’s brief notes that “Midwest is
only seeking production of hauling transfer records for vehicles and trailers that Midwest
towed to the Omaha IAA locations,” (Filing No. 81, at CM/ECF p. 16, n. 10), a note that
appears at odds with Plaintiff’s demand for production of all hauling transfer fees paid to
Driggers.
10

Additionally, such information is admittedly not needed by Midwest as
evidenced by the testimony of Jeff Jackson, the 30(b)(6) witness for
Midwest. Mr. Jackson testified that prior to Midwest's termination from the
IAA and its ASAP system, either he or one of his staff reviewed the tow
bills, photos, expenses entries, and lot notations for all of the 8,994 tows for
which Midwest is claiming a 2 Stop fee. This was done for the purpose of
confirming that each such tow was made to either the IAA lots at 35th or
60th Street. Mr. Jackson further testified that the data which Midwest
compiled is accurate. Finally, discovery closed in this case on May 15,
2014, and this request falls outside the scope of Plaintiffs discovery
requests. Therefore, it is IAA's position that not only is Midwest's request
unduly burdensome and outside the scope of Plaintiffs discovery requests,
but Midwest, admittedly, has no need for this additional data.
(Filing No. 79-16).

Upon receipt of the defendant’s August 11, 2014 correspondence, Plaintiff’s
counsel demanded that IAA supplement its previous production by disclosing not only
the hauling transfer fees paid to Midwest, but also all hauling transfer fees paid to
Driggers and RO Towing. (Filing No. 79, at CM/ECF p. 4; Filing No. 79-4, at CM/ECF
p. 2). As to Driggers, on August 22, 2014, defense counsel provided an excel spreadsheet
(the “Driggers Spreadsheet”) which detailed hauling transfer data for the 8,994 vehicles
that Midwest previously identified as involving an additional stop. (Filing No. 79, at
CM/ECF p. 6, ¶ 12)(Filing No. 79-11), Filing No. 79-14; (Filing No. 93-1, at CM/ECF p.
2, ¶ 9).

The defendant explained that although the plaintiff’s request was made “long

past the deadline for the close of discovery,” (Filing No. 92, at CM/ECF p. 4, ¶ 7), the
defendant was producing the information to facilitate the parties’ efforts at reaching a
trial stipulation regarding the number of vehicles at issue. (Filing No. 93-1, at CM/ECF
pp. 36-37).

For similar reasons, on August 25, 2014, the defendant provided Plaintiff

with a document entitled "location of stock numbers at issue” which contained movement
information for the 8,994 stock numbers at issue. (Filing No. 93-1, at CM/ECF p. 3, ¶11).
(Filing No. 79, at CM/ECF p. 7, ¶ 10). (“Location Document). ¶ 11 (Filing No. 92, at
CM/ECF p. 10)
11

On September 3, 2014, the plaintiff again asked for the hauling transfer records by
stock number for RO, another tower, and a listing of every vehicle IAA admits was
delivered by Midwest to outlying lots. (Filing No. 79-5).

The defendant responded on September 9, 2014, stating RO hauling records did
not exist and as to the list IAA admits were delivered by Midwest to outlying lots, IAA
referred the plaintiff to a previously produced document, IAA6278. (Filing No. 79-6, at
CM/ECF p. 2). Defense counsel added:

You are long past the deadline to request documents from IAA. Despite
that (and the fact that we believe much of this to be irrelevant to the issues
at hand), over the course of this litigation we have spent a great deal of time
and money gathering the information you requested. We will respond one
final time.
(Filing No. 79-6, at CM/ECF p. 1).

On September 11, 2014, the plaintiff notified defense counsel that upon review of
the Driggers spreadsheet received on August 22, 2014, it was apparent the defendant
provided hauling transfer information for only those vehicles already identified by the
plaintiff. The plaintiff demanded a supplemental response, stating:

The records that were withheld will reveal additional vehicles and trailers
that Midwest delivered to outlying lots for which Midwest has a claim. The
RO hauling transfer records must also include all RO hauling transfers,
whether or not the vehicles and trailers are included in [Midwest’s] master
list.
(Filing No. 79-7; Filing No. 79-8).

12

On the afternoon of September 12, 2014, the defendant refused to provide any
further information, explaining:

Despite the fact that we have had no duty to do so, we have spent a great
deal of time and energy since discovery closed in May responding to your
one off requests for additional documents. We have spent significant
resources to time and time again respond to requests for documents which
you and your clients have always known existed and which should have
been made by you during the discovery phase of this litigation. For this
reason, we will not be complying with your untimely request to yet again
produce additional documents.
(Filing No. 79-9).

During the evening of September 12, 2014, plaintiff’s counsel responded:
You agreed to produce the [D]riggers hauling records. Your client
deceptively produced only part of the [D]riggers hauling transfer records
under the guise of producing all of them. Now when your client is called
out on producing only part of the Drigger’s records your client refuses to
make a complete production. You can explain this to the Magistrate Judge.
(Filing No. 79-10).

The following Monday, defense counsel reminded Plaintiff’s counsel that IAA had
objected to Production Request 6 as overbroad, unduly burdensome and irrelevant, and
confirmed that it was standing by this objection. It explained that the documentation
produced was limited to the 8994 vehicles Midwest had identified after meticulous
review of its own records, 5 and was provided because plaintiff’s counsel stated he wanted
to “piece together those specific stock numbers and determine which ones also had
charges for “hauling transfers.” (Filing No. 79-11). And it did so “to avoid seeking the
Court’s assistance.” (Filing No. 79-11).
5

Midwest testified that it had gone through each tow bill and compared it to the
data in ASAP to reach its number of 8,994. (Filing No. 93-1, at CM/ECF p. 37).
13

On September 22, 2014, plaintiff’s counsel admitted he did not understand all the
line items in IAA6278, or the breadth of information contained in that document. He
asked defense counsel for assistance. (Filing No. 79-12). IAA6278 was produced in
response to plaintiff’s discovery requests, and was again referenced in defense counsel’s
email response to plaintiff’s demands on September 9, 2014.

(Filing No. 79-6, at

CM/ECF p. 2). Defense counsel explained the document to plaintiff’s counsel by email
on September 24, 2014. (Filing No. 79-13).

a.

Midwest tow, hauling transfer, and delivery location records.

As to the tow and hauling transfer bills for vehicles towed by Midwest to outlying
lots, Interrogatory 13, and Requests 5 and 6 encompassed a demand for this information.
But the plaintiff’s written discovery did not request all documents showing the delivery
location of all vehicles for which a tow bill was issued to Midwest (although such
information could likely be gleaned and compiled from reviewing the tow bills and
hauling transfer records). Limited to the vehicles Midwest towed or hauled, the crux of
the parties’ dispute is whether the defendant mislead the plaintiff during the discovery
process by restricting its document production to only the tows and hauling transfers for
the 8,994 vehicles already identified by the plaintiff. The plaintiff argues it was “lulled”
into believing the defendant was disclosing documents for every vehicle tow or hauling
transfer performed by the plaintiff. According to the plaintiff, this information is relevant
because “Midwest believes that it missed a significant number of deliveries to outlying
lots, and that it will be able to correct this error, if IAA is ordered to provide the
requested information and documents with respect to all vehicles and trailers for which
IAA issued a tow bill to Midwest – not just the vehicles and trailers included in the 8,994
Midwest tally.” (Filing No. 81, at CM/ECF p. 27).

14

The defendant claims it objected to the breadth of the plaintiff’s requests from the
outset, the motion to compel deadline has passed, and it is far too late in this litigation to
now demand further discovery.

In response to the plaintiff’s interrogatory 13 and

Request 6, which demands that the defendant produce documents and the identity of all
vehicles which show “Hauling Transfer” in the ASAP program from March 8th, 2010 to
July 31st, 2013, the defendant objected that the discovery requests were overly
burdensome and irrelevant. But while preserving its objections, it supplemented the
response in April of 2014 by producing and referring to “documents regarding hauling
transfers performed by plaintiff for IAA's Omaha branch.” (Filing No. 93-1, at CM/ECF
p. 17) (emphasis added); and disclosed “Spreadsheets regarding lot to lot transfers for
Midwest Towing (Bates Nos. IAA0007 4-IAA00127);” and a “Spreadsheet regarding
payments made to Midwest Towing from January 2010 to August 2013 (Bates Nos.
IAA00132-IAA00157).” (Filing No. 93-1, at CM/ECF pp. 27-30) (emphasis added).

The threshold question is whether the plaintiff is entitled to obtain the information
requested by filing an untimely motion to compel. As the defendant correctly argues, the
plaintiff was required to act with due diligence and promptly raise discovery issues when
it knew or should have known a dispute existed. As the current motion confirms, a
comparison of the records received from IAA and its own records revealed the
defendant’s production was limited to the 8994 tows already identified by the plaintiff.
This information corroborated the plaintiff’s own “meticulous” tabulation of “2 stop”
tows.

While the plaintiff now states it believes it missed a significant number of

deliveries, there is no evidence to support that claim. And the plaintiff could have
compared its records with the records received from IAA in April of 2014, when the
defendant’s discovery was produced.

The plaintiff’s pending motion was untimely filed on September 26, 2014. The
plaintiff has failed to show due diligence in pursuing additional discovery, and has failed

15

to make any specific showing of prejudice warranted consideration of the plaintiff’s
untimely motion. The plaintiff’s motion to extend the discovery deadline and to compel
production of Midwest tow, hauling transfer, and delivery location records will be
denied.

b.

30(b)(6) Deposition

On July 21, 2014, the plaintiff requested a date to depose a IAA 30(b)(6) witness
concerning the identification of all vehicles, including stock numbers and delivery
locations, for every vehicle Midwest delivered to a location other than IAA’s 52nd Street
location in Omaha, the identification and location of all documents reflecting this
information, and information explaining IAA’s ability to compile this information by
computer. Plaintiff’s counsel demanded a date for deposition “at once” and no later than
the end of that week “to avoid another Motion to Compel.” (Filing No. 79-1).

We are trying to determine IAA’s ability to provide the requested
information. This is a timely process and one that will not be completed by
Friday. Therefore, I hope to have a response to you early next week with
respect to some, if not all, of your open requests. We are working
diligently and ask that you wait to file your motion to compel until we are
able to respond.
(Filing No. 79-2). The plaintiff agreed to delay filing a motion to compel pending the
defendant’s attempt to respond to the request. (Filing No. 79-3).

On September 3, 2014, the plaintiff asked if the defendant intended to dispute that
vehicles for which a single hauling transfer fee was paid to Midwest, Driggers or RO
were initially delivered by Midwest to one of the outlying lots and then transferred to the
52nd street location for auction, and if it planned to dispute that all State Farm cars were
delivered by Midwest to outlying lots after June 29, 2010 up to December 4, 2012. The

16

plaintiff noted that if the issues are in dispute, the plaintiff “may need to take a 30(b)(6)
of IAA to find out the factual basis for these disputes.” (Filing No. 79-5).

The defendant responded on September 9, 2014:
You are long past the deadline to request documents from IAA. Despite
that (and the fact that we believe much of this to be irrelevant to the issues
at hand), over the course of this litigation we have spent a great deal of time
and money gathering the information you requested. We will respond one
final time.
(Filing No. 79-6, at CM/ECF p. 1). The defendant confirmed that it did intend to dispute
that vehicles for which a single hauling transfer fee was paid to Midwest, Driggers or RO
were initially delivered by Midwest to one of the outlying lots, and then were transferred
to 52nd street for auction. (Filing No. 79-6, at CM/ECF p. 2).

The plaintiff claims it needs to depose IAA on the complete hauling transfer
records, the complete location records, and IAA’s contentions regarding these documents
in order to determine the correct number of vehicles, trailers, and campers that it
delivered to outlying lots and to inquire in to IAA’s contentions concerning how these
documents support IAA’s contentions regarding that number. (Filing No. 81, at CM/ECF
pp. 19-20). IAA never designated a deponent on these issues, and did not provide
Midwest with a date for the requested deposition prior to the August 15, 2014 deposition
deadline. (Filing No. 79, at CM/ECF p. 6, ¶ 11). And the plaintiff has never filed or
served a 30(b)(6) Deposition Notice in this litigation for a witness to speak on these
topics. (Filing No. 93-1, at CM/ECF p. 4, ¶ 16).

Absent a deposition notice, there is no deposition to compel. Moreover, the topics
for which Plaintiff seeks leave to depose the defendant are not new and were known to be
potentially relevant when this litigation was filed. The plaintiff’s motion to compel the
defendant’s 30(b)(6) deposition will be denied.
17

Salvage Book

On July 11, 2014, the plaintiff sent a letter requesting IAA’s written procedures
for the Omaha Branch. (Filing No. 79-1, at CM/ECF p. 3).

These procedures are

documented in the “IAA Salvage Book.”
Defense counsel responded on August 11, 2014, stating:
The IAA Salvage Book is a highly confidential book which is irrelevant to
the pending litigation and is not responsive to any of your requests. That
said, the section entitled "Release/Dispatch/Towing" will be made available
for Attorney's Eyes Only. If you would like to schedule a time to come to
my offices and review this document, you may.
(Filing No. 79-16).
At the parties’ request, a protective order was entered on August 26, 2014 which
governed the plaintiff’s review and disclosure of the Salvage Book. (Filing No. 76).
Plaintiff’s counsel reviewed the book and on August 27, 2014, demanded copies of the
following sections:
Request 5 – Section 6: Check-in
Request 6 - Section 11: Lot Management
Request 8 - Section 13: Accounting
Request 9 - Section 19: Remarketing Division (VRD)
Request 10 - Section 23: Specialty Guidelines and Best Practices
Request 11 - Section 3: Provider Customers.
(Filing No. 79, at CM/ECF p. 5, ¶ 9). The defendant objected, in part, to the requested
production on August 28, 2014, (Filing No. 79-17), and on August 29, 2014, defense
counsel sent a proposed amended protective order to the plaintiff which would permit

18

production but limit Plaintiff’s further disclosure of the Salvage Book. (Filing No. 7911).

On September 12, 2014, the plaintiff asked about the status of an amended
protective order. (Filing No. 79-10). Plaintiff’s counsel was reminded that the proposed
protective order was sent two weeks earlier and defense counsel was awaiting the
plaintiff’s response. An additional copy was provided. (Filing No. 79-11). The parties’
attempts to negotiate an Amended Protective Order including an Attorney's Eyes Only
provision were unsuccessful. (Filing No. 93-1, at CM/ECF p. 5, ¶ 19).

The plaintiff has not identified the discovery request served which would include
production of the Salvage Book.

The defendant has submitted evidence that the

information within the Salvage Book is highly confidential and proprietary. That said,
the defendant is willing to provide the Salvage Book to Plaintiff's counsel, for Attorney's
Eyes Only, under the terms of a proposed Amended Protective Order. (Filing No. 96-1).
During discussions about the proposed amended protective order, the plaintiff objected to
prohibiting the use of the Salvage Book at witness depositions and to the timing and
criteria governing destruction of the materials disclosed to Plaintiff’s counsel. (Filing
No. 96-1, at CM/ECF pp. 29, 34, & 40-44).

The deposition deadline has passed. So the dispute over use of the Salvage Book
during depositions is moot.

Subject to the notice provisions of paragraph 11, the

proposed amended protective order does not prohibit Plaintiff’s counsel from using the
Salvage Book during trial. (Filing No. 94-1, at CM/ECF p. 8, ¶ 11).

And the term

requiring Plaintiff’s counsel to either return or certify destruction of Attorney Eyes Only
materials “[w]ithin 20 days after dismissal or entry of final judgment not subject to
further appeal” is reasonable. The defendant’s motion for an amended protective order,
(Filing No. 94), will be granted. Moreover, the court specifically finds that the Salvage

19

Book, including any previously disclosed or produced excerpts from that book, are
properly designated Attorney Eyes Only documents for the purposes of the Amended
Protective Order to be entered on defendant’s motion.

Accordingly,

IT IS ORDERED:

1)

The plaintiff’s motion to compel and for extension of the discovery

deadlines, (Filing No. 78), is denied.

2)

The defendant’s motion for an amended protective order. (Filing No. 94),

is granted. The amended protective order will be separately entered in accordance with
this order.

January 21, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

20