Grybowski et al v. Hewlett-Packard Company

Filing 33

ORDER that 23 Motion to Compel is DENIED. Signed by Magistrate Judge Cam Ferenbach on 9/16/15. (Copies have been distributed pursuant to the NEF - MMM)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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***

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RYAN SMITH, et al.,
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Plaintiffs,

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Case No. 2:15–cv–484–GMN–VCF

vs.
HEWLETT-PACHARD COMPANY,

ORDER
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MOTION TO COMPEL (#23)
Defendant.

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This matter involves Ryan Smith and James Grybowski’s civil-rights action against the Hewlett-

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Packard Company. Messrs. Smith and Grybowski move to compel Hewlett-Packard to produce five

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categories of information: “(1) [r]elevant documents from Plaintiffs’ personnel files; (2) [v]arious policies

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and procedures of Defendant including its sales compensation and anti-harassment policies;

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(3) [d]ocuments related to Plaintiffs’ termination of employment with Defendant; (4) [r]elevant email

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communications regarding Plaintiffs’ sales compensation on the Las Vegas Sands-Macau deal; and
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(5) [a]ll custodian of records necessary to authenticate [these] documents.” (Doc. #23 at 2:11–15).
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Smith and Grybowski advance two primary arguments in support of their motion to compel. First,
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they contend that the documents should be produced under Rule 26(a)(1)(A)(ii). (Id. at 3:2). This argument
fails as a matter of law. Hewlett-Packard complied with Federal Rule of Civil Procedure 26(a)(1)(A)(ii),

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which permits a party to either provide “a copy—or a description by category and location” of documents

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that the party may use to support its claims or defenses. See FED. R. CIV. P. 26(a)(1)(A)(ii).

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Here, Hewlett-Packard timely served its initial disclosures and included a description of the
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documents. Smith and Grybowski argue that Hewlett-Packard failed to comply with the rule by providing
a description of the documents rather than the documents themselves. This is incorrect. See id.

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Second, Smith and Grybowski contend that Hewlett-Packard “stipulated to the production of the

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documents in the Joint Discovery Plan and Scheduling Order.” (Doc. #23 at 4:29). This argument is

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factually unfounded. The Joint Discovery Plan and Scheduling Order contains no provision requiring

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Hewlett-Packard to produce the five categories of documents that are the subject of the motion to compel.

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See generally (Doc. #20). The Joint Discovery Plan and Scheduling Order was entered on June 5, 2015.

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(Id.) This was four days before Hewlett-Packard served its initial disclosures, which informed Smith and
Grybowski for the first time that the five categories of information even exist. See (Doc. #23-5 at 5–6).

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Smith and Grybowski’s motion is also deficient because they failed to meet and confer before
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moving to compel. The parties’ briefing demonstrates that they are familiar with the meet-and-confer
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requirements set out in Rule 37(a)(1), Local Rule 26-7(b), and Shuffle Master, Inc. v. Progressive Games,
Inc., 170 F.R.D. 166 (D. Nev. 1996). Nonetheless, Smith and Grybowski purport to have complied with
these authorities by sending a letter, which in pertinent part stated:
Plaintiffs are in receipt of Defendant Hewlett-Packard Company’s Initial Disclosures,
dated June 9, 2015. Pursuant to Rule 26(a)(1), please provide copies of all documents
identified (No.’s 1–5) in Defendant Hewlett-Packard Company’s Initial Disclosures or
provide our office with a date, time and location to come and inspect and copy the same.

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(Doc. #23-6 at 2). These two sentences are insufficient as a matter of law to satisfy the meet-and-confer
requirement.

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As stated in Shuffle Master, good faith contemplates “honesty in one’s purpose to meaningfully

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discuss the discovery dispute, freedom from intention to defraud or abuse the discovery process, and

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faithfulness to one’s obligation to secure information without court action.” 170 F.R.D. at 171. And,

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conferment contemplates a “two-way communication . . . to meaningfully discuss each contested
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discovery dispute in a genuine effort to avoid judicial intervention.” Id.

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Smith and Grybowski’s letter does not satisfy the good-faith requirement. When documents are

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requested, Rule 34 provides the responding party with 30 days to produce the requested information. Here,

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Smith and Grybowski told Hewlett-Packard that it must produce the requested documents within “the next

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five (5) business days.” (Doc. #23-6 at 2). This suggests that Smith and Grybowski may have intended to

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“abuse the discovery process” by short-circuiting the amount of time Hewlett-Packard is entitled to when

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responding to document requests. Indeed, approximately two weeks after the letter was drafted, Smith and

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Grybowski had already filed their motion to compel. The court does not find that Smith and Grybowski
acted in good faith.

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Nor does the court find that Smith and Grybowski’s letter satisfies the conferment requirement.
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Smith and Grybowski did not attempt to engage in a meaningful two-way communication. They simply
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put Hewlett-Packard on notice that they wanted the documents identified in its initial disclosure. And,
before Hewlett-Packard had an opportunity to act on Smith and Grybowski’s letter—and without serving
a proper document request—Smith and Grybowski moved to compel. This was inappropriate.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Plaintiffs’ Motion to Compel (#23) is DENIED.

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IT IS SO ORDERED.

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DATED this 16th day of September, 2015.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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