EmployBridge, LLC et al v. Riven Rock Staffing, LLC et al

Filing 69

ORDER DENYING MOTION to Compel Defendant Riven Rock Staffing, LLC to Respond to Interrogatories, Set One, Nos. 11-14 and Produce Documents In Response To Request for Production, Set One, Nos. 15-24 by Magistrate Judge Kirtan Khalsa. (KK)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EMPLOYBRIDGE, LLC et al.,
Plaintiffs,
v.

Civ. No. 16-833 WJ/KK

RIVEN ROCK STAFFING, LLC et al.,
Defendants.
ORDER DENYING MOTION TO COMPEL
THIS MATTER comes before the Court on Plaintiffs’ Motion to Compel with
Memorandum of Law in Support (Doc. 49), filed November 10, 2016. The Court, having
meticulously reviewed the parties’ submissions and the relevant law, and being otherwise fully
advised, FINDS that the motion is not well taken and should be DENIED.
1. Factual Background and Procedural History
In their Amended Complaint for Damages and Injunctive Relief, Plaintiffs
EmployBridge, LLC and Employment Solutions Management, Inc. assert claims against
Defendant Riven Rock Staffing, LLC (“Riven Rock”), and individual Defendants L. Shaun
Shepherd, Catherine Olinger, Terry Miller, and Timothy Jacquez, under the Defend Trade
Secrets Act, the New Mexico Uniform Trade Secrets Act, and state contract and tort law. (See
generally Doc. 23.)

Specifically, Plaintiffs contend that Defendants have misappropriated

Plaintiffs’ trade secrets and confidential information, breached non-competition, non-solicitation,
and/or non-disclosure agreements in the individual Defendants’ employment contracts, and
tortiously interfered with Plaintiffs’ contractual and business relations and prospective economic
advantage. (Id. at 22-38.) Plaintiffs and Defendant Riven Rock both operate specialty staffing
businesses in the Albuquerque, New Mexico market; the individual Defendants left Plaintiffs’

employment and went to work for Defendant Riven Rock shortly after the latter company was
formed. (Id. at 3-4, 15-17; Doc. 64-1 at 24-26.)
Plaintiffs contend that the discovery requests at issue in their motion to compel are “part
of a broader effort to understand who owns, runs, and is involved with [Defendant] Riven Rock.”
(Doc. 64-1 at 115 (emphasis added).) More particularly, Plaintiffs contend the requests are
designed to uncover evidence that non-parties D. Stephen Sorensen, Deborah Munoz, 1 Arlita
Purser, Dave Tonick, and/or Marko Gortinski have conspired with Defendant Riven Rock to
unfairly compete with Plaintiffs. (Doc. 49 at 2-3.) Specifically, Plaintiffs posit that these
individuals have conspired with Defendant Riven Rock to “hire the [i]ndividual Defendants in
violation of their non-competition/non-solicitations agreements,” “target clients with whom the
[i]ndividual Defendants worked while at EmployBridge,” and “abscond[] with [Plaintiffs’]
confidential and trade secret information.”

(Doc. 66 at 13.)

Plaintiffs hypothesize this

conspiracy—which is not alleged in Plaintiffs’ Amended Complaint—based on various past and
present business connections between Defendant Riven Rock’s two principals (Ashkan Abtahi
and Donyelle Rose), and Mr. Sorensen, Ms. Munoz, Ms. Purser, Mr. Tonick, and Mr. Gortinski,
all of whom own, operate, or work for businesses in the staffing industry. (Doc. 49 at 5-10.)
According to Plaintiffs, Mr. Abtahi and Ms. Rose worked at a business called Select
Staffing when Mr. Sorensen was its Chief Executive Officer. (Doc. 49 at 4, 7-8.) Select Staffing
later merged with Plaintiffs, and Plaintiffs terminated Mr. Sorensen’s employment shortly
thereafter.

(Doc. 49 at 4); see Sorensen v. New Koosharem Corp., Civ. No. 2:15-1088

RGK/PJW, “New Koosharem Corporation’s Answer to First Amended Complaint and
Koosharem, LLC’s First Amended Counterclaims,” Doc. 65-8 at 2-3, Doc. 65-9 at 2, and Doc.
1

According to Plaintiffs, Ms. Munoz is an “organizer” of Riven Rock Transportation, LLC, a “division” of
Defendant Riven Rock that employs Defendants Miller and Jacquez. (Doc. 49 at 7 n.3.) However, neither Ms.
Munoz nor Riven Rock Transportation, LLC is named as a party to this action. (See generally Doc. 23.)

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65-10 at 2-3 (C.D. Cal. filed Jul. 23, 2015). The Court takes judicial notice that Mr. Sorensen
has been involved in litigation regarding his termination with New Koosharem Corporation,
Plaintiffs’ holding company, in the United States District Court for the Central District of
California that began in February 2015.

(Doc. 53 at 4); see generally Sorensen v. New

Koosharem Corp., Civ. No. 2:15-1088 RGK/PJW (C.D. Cal.). The Court will not further detail
the alleged former and ongoing business connections between Defendant’s principals and
Plaintiffs, Mr. Sorensen, Ms. Munoz, Ms. Purser, Mr. Tonick, and Mr. Gortinski here, except to
say that Plaintiffs have presented no evidence that any of the listed individuals has ever had an
ownership interest in, or control over, Defendant Riven Rock. (See generally Docs. 49, 64, 66.)
In the motion presently before the Court, Plaintiffs seek to compel Defendant Riven Rock
to respond to Plaintiffs’ Interrogatories Nos. 11 to 14 and Requests for Production Nos. 15 to 24.
(Doc. 49 at 1.) These requests include prefatory instructions and definitions, which, inter alia,
define Defendant Riven Rock to include “its parent, subsidiary, or affiliated companies, and its
and their respective officers, directors, employees, representatives, agents, and attorneys, and all
other persons or entities acting at the direction or on behalf of it or them.” (Doc. 64-1 at 3, 13.)
The term “Riven Rock Affiliate” is defined with similar breadth. (Id.) The instructions and
definitions define “Sorensen” to mean Mr. Sorensen and “all representatives, successors, agents,
investigators, attorneys, or other persons or entities acting at the direction or on behalf of them,”
and “Sorensen Affiliate” to include
Sorensen, relatives of Sorensen, Esperer [Holdings, Inc.], Butler [America
Holdings, Inc.], any individual or entity directly or indirectly controlling,
controlled by, or under common control with any of the aforementioned persons
or entities, and all individuals, officers, directors, employees, representatives,
agents, and attorneys, and all other persons or entities acting at the direction or on
behalf of any of them.

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(Id. at 3-4, 13-14.) The term “[c]ommunications” is defined to include any “verbal intercourse,
whether oral or written,” and “[d]ocuments” to include “all written or graphic matter of every
kind or description . . . and all tangible things.” (Id. at 4, 14.) “Related [t]o” and “[r]elating [t]o”
are defined to mean “being in any way legally, logically or factually connected with the matter
discussed.” (Id. at 6, 16.)
Pursuant to these definitions and instructions, in Interrogatories Nos. 11 to 14 and
Requests for Production Nos. 15 to 24, Plaintiffs asked Defendant Riven Rock: (a) to identify,
and produce documents sufficient to show, its “current and former creditors”; (b) to identify, and
produce all documents relating to, any “agreements” between a Riven Rock Affiliate and a
Sorensen Affiliate; (c) to identify all persons, including any Sorensen Affiliates, who have
agreed to pay attorneys’ fees relating to this lawsuit; (d) to produce all documents relating to any
payments between a Riven Rock Affiliate and a Sorensen Affiliate, or by one affiliate on the
other’s behalf; (e) to produce all documents relating to any services a Sorensen Affiliate
provided to a Riven Rock Affiliate or vice versa, and any services a Riven Rock Affiliate
provided to a “company that Deborah Munoz, Arlita Purser, or David Tonick owns, is employed
by, or is otherwise affiliated with”; and finally, (f) to produce all “[c]ommunications” between a
Riven Rock Affiliate and a Sorensen Affiliate, Ms. Munoz, Ms. Purser, or Mr. Tonick. (Doc. 641 at 9, 18-19.)
Defendant Riven Rock objected to these requests, asserting that they are overbroad,
overburdensome, and harassing, and seek information that is confidential and not relevant or
reasonably calculated to lead to the discovery of admissible evidence. (Doc. 64-1 at 30-32, 4145.) Plaintiffs moved to compel Defendant to respond to the requests on November 10, 2016.
(Doc. 49 at 1.) In its response in opposition to the motion, inter alia, Defendant notes that

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Plaintiffs served the disputed discovery requests on August 23, 2016, but shortly thereafter
omitted Mr. Sorensen, Ms. Munoz, Ms. Purser, Mr. Tonick, and Mr. Gortinski from their Rule
26 initial disclosures. 2 (See Doc. 53 at 7-9; Doc. 53-2 at 1-5; Doc. 64-1 at 10, 20.) Plaintiffs did
supplement their initial disclosures to include these individuals (except Mr. Gortinski), but not
until November 1, 2016, after Defendants’ counsel had pointed out the earlier omission in the
context of this discovery dispute. (Doc. 49-1 at 102, 106-09.)
2. Analysis
According to Federal Rule of Civil Procedure 26, parties in a federal civil action “may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Factors the Court is
to consider in determining whether discovery is “proportional to the needs of the case” are:
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Id. “The court’s responsibility, using all the information provided by the parties, is to consider
these . . . factors in reaching a case-specific determination of the appropriate scope of discovery.”
Fed. R. Civ. P. 26(b)(1), 2015 Amendment, Advisory Committee Notes. “Information within
this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.
26(b)(1). However, “the legal tenet that relevancy in the discovery context is broader than in the
context of admissibility should not be misapplied so as to allow fishing expeditions in
discovery.” Martinez v. Cornell Corr. of Tex., 229 F.R.D. 215, 218 (D.N.M. 2005) (citation
2

In its response, Defendant also asserts that Plaintiffs’ motion is untimely pursuant to Local Rule 26.6. (Doc. 53 at
11-12.) The Court need not reach this issue because, as discussed below, it finds that Plaintiffs’ motion should be
denied on its merits. Defendant further asks the Court to issue a protective order “prohibit[ing] Plaintiffs from
serving harassing discovery and seeking to circumvent the appropriate discovery process through Rule 45
subpoenas.” (Id. at 20-21.) However, the Court finds that Defendant has described the protective order it seeks with
insufficient precision, and therefore declines to issue it at this time.

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omitted). Rather, discovery “is meant to allow the parties to flesh out allegations for which they
initially have at least a modicum of objective support.” Id. (citation omitted). The Court will
consider the disputed discovery requests in light of the foregoing standards.
a.

Interrogatory No. 11 and Request for Production No. 15

In Interrogatory No. 11 and Request for Production No. 15, Plaintiffs ask Defendant
Riven Rock to identify, and produce documents sufficient to show, “all” of its “current and
former creditors.” (Doc. 64-1 at 9, 18.) Plaintiffs argue that information about the “financing”
of Defendant Riven Rock is relevant to their claims. (Doc. 66 at 14-15.) However, assuming
this to be true, these requests are not limited to information about Defendant’s financing. As
noted above, Plaintiffs defined Defendant Riven Rock to include “its parent, subsidiary, or
affiliated companies, and its and their respective officers, directors, employees, representatives,
agents, and attorneys, and all other persons or entities acting at the direction or on behalf of it or
them.” (Doc. 64-1 at 3, 13.) As such, and in light of the fact that the requests are not limited by,
for example, the amount, purpose, or date of the credit the creditor extended, these requests
include within their scope a sizable quantity of irrelevant information. Merely by way of
example, the requests could reasonably be read to seek identification of all of the banks that have
issued a credit card to a Riven Rock employee, and all of the office supply vendors that have
extended short-term credit to Defendant. For these reasons, the Court finds that Interrogatory
No. 11 and Request for Production No. 15 are overbroad and overburdensome, and seek
information that is not relevant or reasonably calculated to lead to the discovery of admissible
evidence and is disproportionate to the needs of the case. The Court will deny Plaintiffs’ motion
to compel Defendant to respond to these requests.

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b.

Interrogatory No. 12 and Request for Production No. 17

Interrogatory No. 12 and Request for Production No. 17 ask Defendant to identify, and
produce all documents “[r]elating [t]o,” all written and unwritten “agreements” between any
Riven Rock Affiliate and any Sorensen Affiliate. (Doc. 64-1 at 9, 18.) These requests appear to
be seeking evidence of the conspiracy that Plaintiffs have hypothesized between Defendant
Riven Rock and Mr. Sorensen, Ms. Munoz, Ms. Purser, Mr. Tonick, and Mr. Gortinski.
However, after careful consideration of the business connections Plaintiffs describe between
Defendant’s principals and the listed individuals, the Court finds that Plaintiffs have failed to
demonstrate “a modicum of objective support” for such a conspiracy. Martinez, 229 F.R.D. at
218. Business connections between these individuals, all of whom appear to have worked in the
specialty staffing industry for many years, seem to the Court unremarkable, and even expected.
The fact that they have worked together and continue to conduct business with one another
simply does not support an inference that they have conspired to engage in the wrongful acts
alleged in Plaintiffs’ Amended Complaint. Thus, at least at this juncture, Plaintiffs’ quest for
evidence of such a conspiracy is in the nature of a fishing expedition.
Further, even if Plaintiffs had presented a modicum of objective support for the
conspiracy they hypothesize, these requests are not limited to seeking information that would
tend to substantiate such a conspiracy. Rather, by asking for every written and unwritten
agreement between anyone “affiliated” with Defendant and anyone “affiliated” with Mr.
Sorensen, without any limitation as to date, subject matter, or purpose of the agreement,
Plaintiffs have asked for a potentially vast quantity of information, most of which is patently
irrelevant to their claims. In short, the Court finds that Interrogatory No. 12 and Request for
Production No. 17 are overbroad and overburdensome, and seek information that is not relevant

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or reasonably calculated to lead to the discovery of admissible evidence and is disproportionate
to the needs of the case. The Court will therefore deny Plaintiffs’ motion to compel Defendant to
respond to these requests.
c.

Interrogatories Nos. 13 and 14

Interrogatories Nos. 13 and 14 ask Defendant Riven Rock to identify every person,
including any Sorensen Affiliate, who has paid or agreed to pay attorneys’ fees “[r]elating [t]o”
this lawsuit.

(Doc. 64-1 at 9.)

In their motion to compel Defendant to answer these

interrogatories, Plaintiffs appear to suggest that if Mr. Sorensen, one of his family members,
Esperer Holdings, Inc., Butler America Holdings, Inc., “any individual or entity directly or
indirectly controlling, controlled by, or under common control with any of the aforementioned
persons or entities,” or any individual, officer, director, employee, representative, agent,
attorney, or other person or entity acting at the direction or on behalf of any of the above entities,
has agreed to pay any Defendant’s attorneys’ fees related to this case, that fact would support
Plaintiffs’ theory that Mr. Sorensen and other non-parties conspired with Defendant to engage in
the wrongful acts alleged in Plaintiffs’ Amended Complaint. (Doc. 49 at 9 n.4; Doc. 64-1 at 4,
14.)
Again, however, even assuming Plaintiffs’ premise to be true, Interrogatories Nos. 13 and
14 are in the nature of a fishing expedition, because Plaintiffs have not demonstrated a modicum
of objective support for the conspiracy about which the requests purport to seek information.
Martinez, 229 F.R.D. at 218. Further, evidence that someone not affiliated with Mr. Sorensen,
Ms. Munoz, Ms. Purser, Mr. Tonick, or Mr. Gortinski has agreed to pay a Defendant’s attorneys’
fees would have no bearing even on Plaintiffs’ theory, much less on their actual claims. Thus,
and having considered all of the factors listed in Rule 26(b)(1), including “the importance of the

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discovery in resolving the issues,” and “whether the burden . . . of the proposed discovery
outweighs its likely benefit,” the Court concludes that Interrogatories Nos. 13 and 14 are
overbroad and overburdensome, and seek information that is of marginal or no relevance and
disproportionate to the needs of the case. The Court will deny Plaintiffs’ motion to compel
Defendant to respond to these requests.
d.

Requests for Production Nos. 18, 19, and 20

In Requests for Production Nos. 18, 19, and 20, Plaintiffs ask Defendant to produce all
documents “[r]elating [t]o any payments or transfers of funds (either directly or indirectly)”
between a Riven Rock Affiliate and a Sorensen Affiliate, by a Riven Rock Affiliate on behalf of
a Sorensen Affiliate, or by a Sorensen Affiliate on behalf of a Riven Rock Affiliate. (Doc. 64-1
at 19.) These requests are similar to Interrogatories Nos. 13 and 14 in that they appear to be
fishing for evidence to substantiate the conspiracy Plaintiffs have hypothesized between
Defendant and Mr. Sorensen and other non-parties. However, these requests are even broader
and more burdensome because, in contrast to Interrogatories Nos. 13 and 14, they do not limit
the purpose of the payments about which they seek documentation, which could be, for example,
simple compensation for services performed in the legitimate course of business between any
two of the affiliated persons or entities described. Thus, and for the reasons discussed in Section
2.c., supra, the Court concludes that Requests for Production Nos. 18, 19, and 20 are overbroad
and overburdensome, and seek information that is of marginal or no relevance and
disproportionate to the needs of the case. The Court will deny Plaintiffs’ motion to compel
Defendant to respond to these requests.

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e.

Requests for Production Nos. 21, 22, and 24

Requests for Production Nos. 21, 22, and 24 ask Defendant to produce all documents
relating to any services a Sorensen Affiliate provided to a Riven Rock Affiliate, and any services
a Riven Rock Affiliate provided to a Sorensen Affiliate or to “any company that Deborah
Munoz, Arlita Purser, or David Tonick owns, is employed by, or is otherwise affiliated with.”
(Id. at 19.) Plaintiffs appear to take the position that, if a Riven Rock Affiliate has provided a
service to a Sorensen Affiliate or vice versa, or a Riven Rock Affiliate has provided a service to
a company affiliated with Ms. Munoz, Ms. Purser, or Mr. Tonick, this supports their conspiracy
theory. (See, e.g., Doc. 49 at 7-8.) The Court disagrees. Plaintiffs have presented no evidence
why a Riven Rock Affiliate and a Sorensen Affiliate (or a company affiliated with Ms. Munoz,
Ms. Purser, or Mr. Tonick) should not be transacting business with one another, or why evidence
of such transactions would support the theory that Defendant and Mr. Sorensen, Ms. Munoz, Ms.
Purser, and Mr. Tonick conspired to commit wrongful acts against Plaintiffs. Moreover, these
requests cast a net far too broad to be proportional to the needs of the case. By defining the terms
“Riven Rock Affiliate” and “Sorensen Affiliate” with extraordinary breadth, and asking for all
documents “relating to” every service provided to one affiliate by the other (or by a Riven Rock
Affiliate to a company affiliated with Ms. Munoz, Ms. Purser, or Mr. Tonick), regardless of time,
purpose, or circumstance, Plaintiffs again seek a potentially vast quantity of documents, most of
them irrelevant. In short, the Court finds that Requests for Production Nos. 21, 22, and 24 are
overbroad and overburdensome, and seek information that is not relevant or reasonably
calculated to lead to the discovery of admissible evidence and is disproportionate to the needs of
the case. The Court will deny Plaintiffs’ motion to compel Defendant to respond to these
requests.

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f.

Requests for Production Nos. 16 and 23

Finally, in Requests for Production Nos. 16 and 23, Plaintiffs ask Defendant to produce
all “[c]ommunications” between any Riven Rock Affiliate and any Sorensen Affiliate, Ms.
Munoz, Ms. Purser, or Mr. Tonick.

(Doc. 64-1 at 18-19.)

These requests are the most

egregiously overbroad and overburdensome of all of those currently in dispute. By seeking all
communications between two very broadly defined entities, with no limitation as to the date,
subject matter, or purpose of the communications, the requests seek a nearly boundless quantity
of information, most of it of no relevance at all to Plaintiffs’ claims, or even to their conspiracy
theory. The Court finds that Requests for Production Nos. 16 and 23 are wholly overbroad and
overburdensome, and seek information that is not relevant or reasonably calculated to lead to the
discovery of admissible evidence and is completely out of proportion to the needs of the case.
The Court will therefore deny Plaintiffs’ motion to compel Defendant to respond to these
requests.
3. Award of Expenses Under Rule 37
The Court will award Defendant Riven Rock its reasonable expenses incurred in
responding to Plaintiffs’ motion to compel. Pursuant to Federal Rule of Civil Procedure 37, if a
motion to compel is denied, the Court must generally award expenses to the party opposing the
motion, unless “the motion was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Here, the Court has denied Plaintiff’s motion to
compel, and does not find that the motion was substantially justified or that other circumstances
make an award of expenses unjust. On the contrary, the eleventh-hour amendment of Plaintiffs’
initial disclosures to add Mr. Sorensen, Ms. Munoz, Ms. Purser, and Mr. Tonick suggests either
that (1) Plaintiffs were aware of the speculative and attenuated nature of their conspiracy theory

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when they served the discovery requests at issue, or (2) Plaintiffs failed to disclose these
witnesses in a timely manner as Rule 26(a)(1)(A) requires. For these reasons, the Court finds
that Rule 37 entitles Defendant Riven Rock to an award of expenses.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel with Memorandum of
Law in Support (Doc. 49) is DENIED.
IT IS FURTHER ORDERED that Defendant is to submit a fee petition with supporting
affidavits documenting the expenses it reasonably incurred in responding to Plaintiffs’ motion to
compel within ten (10) days of entry of this Order. Plaintiffs may submit a response to the fee
petition within ten (10) days after the fee petition is served on them.
IT IS SO ORDERED.

KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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