Richardson International (US) Limited et al v. Buhler Inc

Filing 39

ORDER that Defendant's Renewed Motion to Compel Answers to Written Discovery 32 is granted. Plaintiffs shall supplement their responses to Defendant's First Set of Interrogatories and Requests for Production of Documents within 14 days of this Order. Plaintiffs shall also produce a privilege log and supplement their discovery responses so as to identify, by Bates number, the documents responsive to each document production request within 14 days of this Order. By June 23, 2015, Defendant shall submit a motion for reasonable attorneys' fees, which includes an itemization of costs incurred in bringing its original and renewed motion to compel. Ordered by Magistrate Judge F.A. Gossett. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARDSON INTERNATIONAL
(US) LIMITED, and NATIONWIDE
AGRIBUSINESS INSURANCE
COMPANY,
Plaintiffs,
V.
BUHLER INC,
Defendant.

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8:14CV148
ORDER

This matter is before the Court on Defendant’s Renewed Motion to Compel Answers
to Written Discovery (filing 32). For the reasons expressed below, Defendant’s motion will
be granted.
BACKGROUND
This action was removed to this Court from the District Court of Dakota County,
Nebraska on May 14, 2014. (Filing 1.) On or about September 16, 2014, Defendant served
its First Set of Interrogatories and Requests for Production of Documents (the “discovery
requests”). In November, 2014, Defendant’s counsel contacted Plaintiffs’ counsel and
inquired as to the status of Plaintiffs’ past due discovery responses. The attorneys agreed that
the response deadline would be extended to December 12, 2014, and that Defendant’s
responses to Plaintiffs’ discovery requests would not be due until 30 days after Plaintiffs
responded to Defendant’s discovery requests.
On December 11, 2014, Plaintiffs’ counsel informed Defendant’s counsel that
Plaintiffs required additional time to respond to the discovery requests. In late December,
2014 and early January, 2015, Defendant’s counsel contacted Plaintiffs’ counsel to discuss
Plaintiffs’ continued failure to provide discovery responses. On January 26, 2015, counsel
agreed to request a status conference with the Court before Defendant filed a motion to

compel. In early February, 2015, Defendant’s counsel contacted the Court to schedule a
conference call. The Court declined to hold a status conference, and informed Defendant’s
counsel to file a motion to compel if necessary to resolve the discovery dispute. On March
7, 2015, Defendant’s counsel informed Plaintiffs’ counsel that Defendant intended to proceed
with a motion to compel.
Defendant filed a motion to compel (filing 27) on March 20, 2015. Plaintiffs
responded to the motion on April 2, 2015, stating that they intended to serve discovery
responses by April 15, 2015. (Filing 30.) On April 3, 2015, Plaintiffs filed another
document stating that they had provided responses to the requests and that the motion to
compel was therefore moot. (Filing 31.)
By letter dated April 8, 2015 (filing 34-1), Defendant’s counsel instructed Plaintiffs’
counsel to provide supplemental discovery responses by April 17, 2015. Defendant’s
counsel explained that supplemental responses were warranted because Plaintiffs improperly
objected to a number of requests, failed to provide a privilege log, failed to answer
Defendant’s contention interrogatories and vaguely referenced thousands of pages of
documents. Defendant’s counsel again contacted Plaintiff’s counsel on April 22, 2015,
asking whether Plaintiffs planned to respond to the letter. Plaintiffs’ counsel indicated that
he would review the April 8, 2015 letter that week. Defendant did not receive any further
response regarding the discovery from Plaintiffs’ counsel. Therefore, Defendant filed its
Renewed Motion to Compel Answers to Written Discovery (filing 32) on April 30, 2015.
DISCUSSION
Defendant seeks an order compelling Plaintiffs to provide supplemental responses to
Defendant’s September, 2014 discovery requests. Defendant first argues that Plaintiffs’
responses are deficient because Plaintiffs failed to produce a privilege log and did not
identify what specific documents are responsive to each request for production. Defendant
also asserts that Plaintiffs’ responses to the contention interrogatories must be supplemented
because Plaintiffs’ objection that the interrogatories are premature is improper and, in any

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event, has been waived by Plaintiffs’ failure to provide timely responses.1
In response to Defendant’s motion, Plaintiffs have agreed to produce a privilege log
and identify documents by Bates number.2 However, Plaintiffs assert that their objection
based on the prematurity of the contention interrogatories is proper because they need
additional fact discovery and information from Defendant before they can provide
meaningful responses. Plaintiffs point out that they timely submitted thousands of
documents with their initial disclosures, but, to date, Defendant has only produced a 2-page
declaration. Moreover, Plaintiffs argue that their objections to the contention interrogatories
were not waived because they were operating under the assumption that neither party was
enforcing the 30-day response requirement set forth in Fed. R. Civ. P. 33(b)(2) and 34(b)(2).
Plaintiffs note that the parties agreed that objections and answers would be provided by
Plaintiffs, with Defendant to answer within 30 days of Plaintiffs’ responses. Plaintiffs assert
that in the absence of this agreement, Defendant has likewise failed to timely respond to
discovery requests served by Plaintiffs.
With respect to the contention interrogatories, the Court agrees that Plaintiffs should
be able to provide responses at this time, while reserving the right to supplement and provide
additional information as it is revealed through discovery. Defendant’s contention
interrogatories ask Plaintiffs to identify and describe the defects Plaintiffs claim existed; any
acts of negligence allegedly committed; the manner in which any alleged defects caused the
fire; any allegedly inadequate warnings or instructions; the manner of any alleged breach of
warranty; any allegedly deficient safety features; and any alleged violation of industry
standards. (Filing No. 29-1.) Although there is support for deferring answers to contention
interrogatories until after other discovery has been completed, see Lucero v. Valdez, 240

1

Defendant is not requesting that the Court deem Plaintiffs’ objections based on the
attorney-client privilege or work product doctrine waived on account of Plaintiffs’ tardy
discovery responses. Therefore, issues regarding the waiver of these privileges will not be
addressed herein.
2

Because Plaintiffs have agreed to supplement their discovery responses by providing
a privilege log and by identifying documents by Bates number, the Court will not directly
address Defendant’s motion to compel as it relates to these matters.
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F.R.D. 591, 594 (D.N.M. 2007), this case has been pending for over a year and Plaintiffs
should be able to articulate their general theories of the case, even if these theories are not
fully developed. Moreover, discovery delays in this case are largely attributable to Plaintiffs’
continued failure to properly respond to discovery requests that were served in September,
2014. See Logtake, Ltd. v. IKOR, Inc., No. 4:11-cv-05452, 2013 WL 3967750, *3 (N.D. Cal.
July 31, 2013) (stating that “[w]hile a party responding to contention interrogatories may
object on the ground that it is too early in discovery for the party to make a full and complete
response . . . and may reserve the right to supplement its response” the party may waive any
such objection by failing to provide timely responses). Therefore, Plaintiffs will be ordered
to answer the contention interrogatories and corresponding document production requests.
Defendant has requested an award of attorneys’ fees in this matter. At this time, the
Court believes that such an award is appropriate. Defendant gave Plaintiffs multiple
opportunities to respond to the discovery requests. It was only after Defendant filed a motion
to compel did Plaintiffs attempt to provide any responses. Plaintiffs have not articulated any
persuasive reason why attorneys’ fees are improper under the circumstances.
Accordingly,
IT IS ORDERED:
1.

Defendant’s Renewed Motion to Compel Answers to Written Discovery (filing
32) is granted.

2.

Plaintiffs shall supplement their responses to Defendant’s First Set of
Interrogatories and Requests for Production of Documents, including
responses to Defendant’s contention interrogatories (Interrogatory Nos. 12
through 18) and the corresponding document production requests (Request
Nos. 15 and 18), within 14 days of this Order. Plaintiffs shall also produce a
privilege log and supplement their discovery responses so as to identify, by
Bates number, the documents responsive to each document production request
within 14 days of this Order.

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3.

By June 23, 2015, Defendant shall submit a motion for reasonable attorneys’
fees, which includes an itemization of costs incurred in bringing its original
and renewed motion to compel.

DATED June 8, 2015.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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