Hernandez et al v. Creative Concepts, Inc. et al

Filing 259

ORDER Denying 213 Plaintiffs' Motion to Compel Discovery Responses. Signed by Magistrate Judge Cam Ferenbach on 05/21/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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GABRIEL HERNANDEZ, et al.,

2:10-cv-02132-PMP -VCF

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Plaintiffs,
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vs.

ORDER

CREATIVE CONCEPTS, et al.,

(Motion To Compel Discovery Responses #213)

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Defendants.
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Before the court is plaintiffs’ Motion To Compel Discovery Responses. (#213). Defendant
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filed an Opposition (#234), and plaintiffs did not file a Reply.
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A.

Relevant Background

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Plaintiffs filed their first amended complaint on November 1, 2010, in the Eighth Judicial
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District Court, Clark County, Nevada, against defendants asserting claims for (1) breach of contract
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(against Creative Concepts), (2) breach of contract (against Northern Pipeline & NPL), (3) breach of
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confidential relationship, (4) breach of fiduciary duty, (5) fraudulent inducement, (6) fraudulent
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inducement, (7) negligent misrepresentation, and (8) negligent misrepresentation. (#1-3). Plaintiffs’
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amended complaint arises from their employment with Northern Pipeline Construction and NPL
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Construction Co. (hereinafter jointly referred to as “NPL”) and immigration issues handled by John
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Speidel of Speidel Enterprises, Inc. d/b/a as Creative Concepts and Creative Concepts Inc (hereinafter
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jointly referred to as “Creative Concepts”). Id. Creative Concepts and NPL allegedly represented to
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plaintiffs that they would help plaintiffs become United States citizen through a labor certification
program (hereinafter “Program”). Id. Plaintiffs agreed to certain terms and entered into contracts in

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November of 2002 with Creative Concepts to begin assisting plaintiffs in becoming citizens. Id. The
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parties agreed that $20 or more would be deducted from the plaintiffs’ paychecks as payment for these
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services.

Id.

Plaintiff alleges that “the entire five-plus year process was a sham concocted” by

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supervisors and managers at NPL with the assistance of other defendants.” (#29).
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Defendants removed the action to this court on December 8, 2010, based on federal question
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under 28 U.S.C. § 1331. (#1). Plaintiff filed a second amended complaint on June 27, 2011, adding
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new parties. (#29).1 On March 31, 2013, plaintiffs filed the instant motion to compel. (#213). On

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April 2, 2013, plaintiffs filed a reply in support of their emergency motion (#204). (#215). On April
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18, 2013, defendant NPL filed an opposition to the motion to compel (#213). (#234). Plaintiffs’ reply
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was due on April 28, 2013. Id. Plaintiffs failed to file a reply.
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B.

Motion To Compel

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1. Plaintiffs’ Argument
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Plaintiffs ask this court to compel defendant NPL to provide responses and/or supplemental
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responses to “(1) [p]laintiffs’ First Request for Production to Defendant NPL; (2) [p]laintiffs’ June 14,
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2012 Request for Production; (3) [p]laintiffs’ July 16, 2012 Request for Production; and (4) [p]laintiffs’
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July 19, 2012 Request for Production.” (#213). Plaintiffs assert that “[c]ollectively, those pleadings
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contain 82 separate requests for production,” and that “[a]lthough NPL did produce documents
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responsive to many requests, it objected to all of them.” Id. The plaintiffs state that “[o]n December 4,
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2012, prior to a December 19th, “meet and confer” conference, [p]laintiffs’ counsel sought clarification
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from NPL’s counsel as to whether NPL produced all responsive documents despite objecting to every
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discovery request, or whether it was withholding documents based on (1) its alleged inability to interpret
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the requests, or (2) its subjective belief that production was unnecessary under the law.” Id (Exhibit 2).
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As the court and the parties are familiar with the procedural background in this action, the court will not include it in its
entirety.
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The plaintiffs assert that NPL’s counsel stated that NPL may have withheld documents based on
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form objections, but that NPL would go through the responses and let plaintiffs know which objections
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would not substantially change NPL’s responses if overruled or withdrawn, and which objections NPL
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was asserting in order to withhold substantive information. Id. Plaintiffs assert that, to date, NPL’s
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counsel had not advised plaintiff’s counsel as promised. Id. Plaintiffs argue that “[t]here is absolutely
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no legal authority that allows NPL to withhold non-privileged documents on the basis of form
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objections as it has admitted to [p]laintiffs it is doing.” Id. Plaintiffs seek an order “directing NPL to
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produce, or alternatively, identify all responsive documents, not otherwise identified in its privilege log,
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that it is withholding on the basis of its form objections,” or, “[a]lternatively, given NPL’s reluctance to
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cooperate in the discovery process, [p]laintiffs request an order permitting their counsel to review,
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inspect, and copy NPL’s non-privileged records at its places of business.” Id.
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Plaintiffs assert that NPL’s objections are merely “form objections,” and provide the court with a
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chart listing the following categories of objections: (a) vague and ambiguous, (b) unduly burdensome
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and overbroad, (c) not reasonably calculated to lead to the discovery of admissible evidence, and (d)
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seeks information protected by the Attorney Work Product Doctrine, Common Interest Doctrine, and/or
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Attorney-Client Privilege. Id (Exhibit 5). The motion only focuses on the first three categories of
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objections, as plaintiffs previously filed motions addressing the privileges asserted. Id. Plaintiffs also
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provide the court with a chart of phrases and words in their discovery requests that NPL objects to as
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being “vague and ambiguous.” Id (Exhibits 3 and 4). Plaintiffs argue that the words are common terms
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and/or terms used specifically in this case to refer to topics, ideas, and details of the NPL sponsorship
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program. Id.
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With regard to the objection of “unduly burdensome and overbroad,” plaintiffs argue that “[i]n
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opposing discovery on grounds of burdensomeness, the objecting party is required to demonstrate that
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the time and expense involved in responding to the requested discovery will, in fact, be unduly

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burdensome,” and that NPL’s statement that responding will take “numerous man hours,” is insufficient.
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Id (citing Residential Constructors, LLC v. Ace Prop. and Cas. Insur. Co., 2006 WL 3149362, * 9 (D.
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Nev.); see also Diamond State Ins. Co. v. Rebel Oil, Co., 157 F.R.D. 691, 696 (D. Nev. 1994) and
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Jackson Montgomery Ward & Co., 173 F.R.D. 524 (D. Nev. 1997). Plaintiffs argue that “[m]ore
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disturbing, is that NPL claims it is withholding some documents based on some of these objections, but
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has not produced a list of which of its form objections would substantively effect its production as it
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promised to do.” Id.
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In addressing NPL’s objection as to relevance, the plaintiffs cite Federal Rule of Civil Procedure
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26(b)(1) and the Ninth Circuit in Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993), and merely state
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that “[t]he discovery propounded on NPL was narrowly tailored to the specific issues in this case and
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are relevant to the issues at had or likely to lead to the discovery of admissible evidence,” without
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further analysis. Id. Plaintiffs also ask this court for an award of attorneys’ fees for having to bring the
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instant motion. Id.
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2. NPL’s Opposition
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NPL asks this court to deny plaintiffs’ motion to compel (#213), based on the fact that (1) “NPL
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has produced over 20,000 pages of documents in this case, along with over 1,600 pages of documents
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obtained via subpoena and Freedom of Information Act requests and over 26,000 pages of documents it
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secured from Defendant Creative Concepts by way of a Fed. R. Civ. P. 34 Request for Production issued
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on November 2, 2011,” (2) “each of [plaintiffs’] concerns with NPL’s Response to [p]laintiffs’ First
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Request for Production of Documents were addressed and resolutions negotiated during a meet and
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confer conference on November 16, 2011,” and (3) “[t]he three other responses to requests for
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production of documents propounded by the [p]laintiffs during June and July 2012 were not the subject
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of any genuine attempt by [p]laintiffs to resolve through good-faith meet and confer efforts prior to the
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filing of their Motion.” (#234).

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NPL asserts that during the meet and confer conference held on December 19, 2012, plaintiffs
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were not prepared to discuss any specific interrogatory answer, specific response to a request for
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production of documents, or any particular issues they had. Id. NPL also asserts that after the meet and
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confer, plaintiffs sent an email “purporting to confirm their...understanding as to how the parties were
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going to proceed with their ongoing meet and confer efforts, which contained various
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misrepresentations/misunderstandings that NPL addressed in a December 26, 2012 response to the
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same.” Id. NPL states that plaintiffs never responded to the email, and that “during the approximately
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50 times [p]laintiffs’ counsel has had telephone or email contact with NPL’s counsel between December
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26, 2012 and the date [p]laintiffs filed their Motion, [p]laintiffs have never requested to resume meet
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and confer discussions.” Id.
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NPL argues that plaintiffs “challenge just four of ten NPL Responses to Requests for Production
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made by [p]laintiffs and do not challenge any of NPL’s answers to Interrogatories,” and that the
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plaintiffs seek the remaining requested relief “without having made any genuine attempt to resolve their
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asserted issues through non-judicial means.” Id. NPL also argues that plaintiffs fail to even attempt to
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demonstrate how NPL’s objections are improper, and spend “no time analyzing any specific objection in
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the context of a specific request.” Id. NPL provides the court with the full text of specific requests and
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responses to “illustrate the difficulty NPL had in understanding the full scope of the [p]laintiffs’
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requests.” Id.
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3.

Relevant Law/Discussion

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Pursuant to Local Rule 26-7(b) “[d]iscovery motions will not be considered unless a statement of
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the movant is attached thereto certifying that, after personal consultation and sincere effort to do so, the
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parties have been unable to resolve the matter without Court action.” Federal Rule of Civil Procedure
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37(a)(1) provides that “[o]n notice to other parties and all affected persons, a party may move for an
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order compelling disclosure or discovery. The motion must include a certification that the movant has in

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good faith conferred or attempted to confer with the person or party failing to make disclosure or
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discovery in an effort to obtain it without court action.”
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Plaintiffs’ counsel attached an affidavit to the motion to compel asserting that the parties held a
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meet and confer conference on December 19, 2012, “during which time [they] discussed [p]laintiffs’
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objections to NPL’s discovery requests and NPL’s objections to [p]laintiffs’ discovery requests and
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other matters related to issues NPL wished to discuss.” (#213-1). NPL asserts in its opposition that
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“each of [plaintiffs’] concerns with NPL’s Response to [p]laintiffs’ First Request for Production of
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Documents were addressed and resolutions negotiated during a meet and confer conference on
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November 16, 2011,” that during the meet and confer conference held on December 19, 2012, plaintiffs
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were not prepared to discuss any specific interrogatory answer, specific response to a production of
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documents request or particular issues they had, and that “[t]he three other responses to requests for
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production of documents propounded by the [p]laintiffs during June and July 2012 [which are addressed
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in the motion to compel (#213)] were not the subject of any genuine attempt by [p]laintiffs to resolve
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through good-faith meet and confer efforts prior to the filing of their [m]otion.” (#234). Plaintiffs did
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not file a reply rebutting NPL’s representations.
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The plaintiffs are required to meet in a good faith effort to resolve discovery disputes before
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filing a motion with the court. See LR 26-7(b) and Fed. R. Civ. P. 37(a)(1). Plaintiffs certified to the
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court that the parties held a meet and confer (#213-1), but when NPL informed the court that the issues
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raised in the motion (#213) were not discussed during the meet and confer and that plaintiffs made no
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effort to discuss the issues before bringing the motion (#213), plaintiffs did not file a reply rebutting
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such assertions. The motion (#213), therefore, was improperly filed and is denied. See LR 26-7(b) and
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Fed. R. Civ. P. 37(a)(1).
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...

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Accordingly and for good cause shown,
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IT IS ORDERED that Motion To Compel Discovery Responses (#213) is DENIED.
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DATED this 21st day of May, 2013.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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