Environmental Dimensions, Inc. v. EnergySolutions Government Group, Inc.
Filing
50
MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter granting 38 Motion to Compel. Defendant shall file a motion seeking its costs and fees associated with the filing of its Motion to Compel within 14 days of the entry of this Order. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ENVIRONMENTAL DIMENSIONS, INC.,
A New Mexico Corporation,
Plaintiff,
v.
CIV 16-1056 WJ/JHR
ENERGYSOLUTIONS GOVERNMENT
GROUP, INC. (n/k/a Atkins Energy
Government Group, Inc.), a foreign for
profit corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to Compel Discovery
Responses to Interrogatories Nos. 6, 8, and 11; Request for Admission No. 2; and Requests for
Production Nos. 7 and 13 (Doc. 38), filed December 1, 2017. Having considered the parties’
positions and all pertinent authority, the Court will grant the Motion. 1
I.
BACKGROUND
As stated in Plaintiff’s Complaint, Los Alamos National Security, LLC, (“LANS”)
contracted with Plaintiff to “manage, treat, and package radioactive waste” generated at the Los
Alamos National Laboratory (“LANL”). Doc. 1-1 at 4. Plaintiff, in turn, subcontracted with
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Defendant’s Motion was filed on December 1, 2017. Doc. 38. Under this Court’s local rules, Plaintiff’s Response
was due 14 calendar days later absent agreement of the parties and notice to the Court. See D.N.M.LR-Civ. 7.4.
“The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so
constitutes consent to grant the motion.” D.N.M.LR-Civ. 7.1(b). On December 27, 2017, Plaintiff filed a notice
purporting to extend its deadline to respond to December 29, 2017. Doc. 40. However, on January 3, 2018,
Defendant filed a counter-notice, objecting that it had only consented to an extension of December 21, 2017. Doc.
42. Defendant requests that the Court not consider Plaintiff’s Response “in light of its untimeliness.” Doc. 44 at 2.
However, the Court may waive the local rules to “avoid injustice.” D.N.M.LR-Civ. 1.7. As the Court grants
Defendant’s Motion on the merits, it need not apply the local rules to grant Defendant’s Motion as a matter of
procedure. However, the Court hereby admonishes Plaintiff and warns it that failure to comply with this Court’s
rules in the future could lead to more severe sanctions.
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Defendant to “provide expert waste management personnel experienced in the LANS TRU
Waste Program and knowledgeable of specific processes and procedures.” Id. Plaintiff contends
that Defendant breached the subcontract by billing for services in excess of 35% of the work
performed under Plaintiff’s contract with LANS. Id. at 6. Plaintiff further alleges that Defendant
has engaged in civil fraud, unfair trade practices, and tortious damage to its reputation and
contract with LANS, ultimately resulting in “LANS eliminate[ing] the tasks that would have
been otherwise assigned to Plaintiff … as a result of Defendant[’s] conduct[.]” Id. at 12.
Defendant admits that it contracted with Plaintiff but generally denies Plaintiff’s claims. See
Doc. 16 at 1-10. Defendant further brings counterclaims against Plaintiff for breach of contract,
breach of the covenant of good faith and fair dealing, promissory estoppel/detrimental reliance,
unjust enrichment, and open account/account stated. Id. at 10-17.
Defendant served its first set of discovery requests upon Plaintiff on December 28, 2016,
including 13 interrogatories, 5 requests for admission, and 17 requests for production. Doc. 38 at
2; Doc. 26 (Certificate of Service). Plaintiff’s responses were due on January 27, 2017. Doc. 38
at 2; see Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A), 36(a)(3). However, on that date, Plaintiff emailed
Defendant a letter enclosing only its responses to Defendant’s requests for admissions. Doc. 27
(Certificate of Service); Doc. 38 at 2; Doc. 38-1; Doc. 38-2; Doc. 38-3. The letter further
referenced a thumb drive containing unspecified documents. Doc. 38-2. Plaintiff stated that its
responses to Defendant’s interrogatories and requests for production would be “forthcoming.” Id.
“The reference thumb drive arrived; however, it did not contain any documents.” Doc. 38 at 2.
On February 3, 2017, Defendant emailed Plaintiff in an attempt to meet and confer about
Plaintiff’s deficient discovery responses. Doc. 38 at 2-3; Doc. 38-4. Plaintiff responded on
February 10, 2017, apologizing for the blank thumb drive, and committing to get the balance of
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the owed discovery in the mail by close of business on February 15, 2017. Doc. 38 at 3; Doc. 385. Plaintiff’s Certificate of Service for its responses indicate that it finally sent them on February
16, 2017. Doc. 29.
On August 24, 2017, Defendant sent Plaintiff another meet and confer letter, this time
raising specific “deficiencies” it identified in Plaintiff’s responses to interrogatory numbers 1, 2,
3, 6, 8 and 11, requests for production numbers 3, 7, 9 and 13, and request for admission number
2. Doc. 38 at 4; Doc. 38-7. Plaintiff responded on August 28, 2017, promising to review its
responses in light of Defendant’s comments. Doc. 38 at 4; Doc. 38-8. On September 12, 2017,
Plaintiff’s counsel emailed Defendant stating that his client “has given me a diskette with a large
number of files on it. Those are materials and emails from the LANL office of [Plaintiff] and
some computer hard drives that were not originally scanned in the document production by the
accounting department person that originally downloaded all the documents responding to the
RFP you sent.” Doc. 38-10. Plaintiff further stated that the referenced diskette “should arrive
shortly.” Id. Plaintiff provided additional documents responsive to Defendant’s requests for
production on September 20, 2017. Doc. 38 at 5.
On October 13, 2017, Defendant again wrote to Plaintiff, seeking supplemental responses
to its discovery requests. Doc. 38 at 5; Doc. 38-11. Plaintiff responded on October 20, 2017,
indicating that it had mailed another thumb drive with “extensive discovery updates from
computer hard drive inspections of other employees’ hard drives[.]” Doc. 38 at 5; Doc. 38-12.
Plaintiff also included revised discovery answers. Id. However, on November 6, 2017, Defendant
emailed Plaintiff, stating that it had not received the referenced thumb drive. Doc. 38-13 at 2.
Plaintiff responded on November 7, 2017, indicating that the thumb drive had been returned for
postage due. Doc. 38-13 at 1. Plaintiff resent the thumb drive. However, when it was received by
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Defendant it was incomplete, containing only supplemental responses to interrogatories 1, 2 and
3, and so Plaintiff had to resend it. Doc. 38-13 at 1; Doc. 38-14. Then, on November 15, 2017,
during a deposition, counsel for Plaintiff indicated that there were additional hard copy
documents that had not been produced. Doc. 38-15. Finally, on November 17, 2017, Defendant
received a diskette “which did not provide any new documents, and instead contained all
previously produced documents, including those with identical Bates numbering.” Doc. 38 at 7.
Defendant now moves the Court, “urg[ing]” it to compel Plaintiff to supplement its
responses to interrogatory numbers 6, 8 and 11, requests for production numbers 7 and 13, and
request for admission number 2. See Doc. 38 at 8-11. Defendant complains that it had to take two
depositions of Plaintiff’s former employees, Chris Edgmon (former project manager) and John
Rodell (former COO), without complete discovery. See id. at 8. Defendant seeks sanctions in the
form of “disallowance of various claims or defenses to counterclaims or attorney’s fees.” Id. at
11.
“Plaintiff admits that [it] had difficulties with the initial production of documents[.]”
Doc. 41 at 1. However, it contends that its “subsequent efforts at numbering and providing
documents to Defendant were successful and continue to be used.” Id. Plaintiff further explains
that it “was forced to lay off all of its employees and has only the Vice President of the company,
Mr. Bradshaw as a knowledgeable person capable of searching, finding, and providing
documents under the discovery requests of the Defendant.” Id. Plaintiff also offers excuses for its
delays, including mistakes committed by its counsel in copying and mailing its various
responses. Id. at 2. Plaintiff argues that “Defendant misconstrues its statement that employee
hard drives were searched later,” explaining that these subsequent searches were “confirmatory”
and “conducted to make sure that the initial search of the Company correspondence files were
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properly numbered and turned over.” Id. Plaintiff explains that its initial responses to discovery
were complete, and that the supplemental materials were drafts corresponding to final versions of
letters that were already sent. Id. at 3. Plaintiff also explains that some of the supplemental
discovery was “irrelevant to this litigation,” sent “[o]ut of an abundance of caution[.]” Id. And,
Plaintiff states that it expanded its answers to the interrogatories noted in Defendant’s Motion to
Compel, but that its “responses have not changed.” Id. at 4. Accordingly, Plaintiff asks the Court
to deny Defendant’s Motion.
In its Reply, Defendant attaches Plaintiff’s “Supplemental Discovery Response
[Defendant’s] Motion to Compel.” See Doc. 44-1. In this document, Plaintiff provides
supplemental responses to all of the discovery requests at issue. See id. Defendant appears to
accept these responses for the most part, alleging only that Plaintiff’s “expanded” answer to
request for admission number 2 is deficient. Doc. 44 at 2. However, Defendant “has reason to
believe” that Plaintiff’s discovery responses continue to be incomplete. Doc. 44 at 4. It further
contends that Plaintiff failed to produce “key documents” until after the present Motion was
filed. Doc. 44 at 6. These documents appear to be the same that Plaintiff contended were
irrelevant. See id.; Doc. 44-1. To the contrary, Defendant argues, these documents “are directly
responsive to [its] requests for production.” Doc. 44 at 6. Defendant concludes by reiterating its
request for sanctions, further explaining that it may need to reopen the depositions of Messrs.
Rodell and Edgmon, and requesting fees and costs associated therewith. Doc. 44 at 10.
II.
LEGAL STANDARDS
Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery, providing that
[p]arties 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,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
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resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in
evidence to be discoverable.” Id.
Parties may issue interrogatories pursuant to Federal Rule of Civil Procedure 33, which “may
relate to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2). “Each
interrogatory must, to the extent it is not objected to, be answered separately and fully in writing
under oath.” Fed. R. Civ. P. 33(b)(3). A responding party may object to an interrogatory; however,
the grounds for an objection “must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). A party may
move to compel the answer to an interrogatory under Rule 33 if good faith attempts to secure the
answer are unsuccessful. Fed. R. Civ. P. 37(a)(3)(B)(iii).
Parties may issue requests for production pursuant to Federal Rule of Civil Procedure 34
“within the scope of Rule 26(b)[.]” Fed. R. Civ. P. 34(a). Each request must be responded to or
addressed by specific objection. Fed. R. Civ. P. 34(b)(2). A party may move to compel a
response to a request for production if good faith attempts to secure the answer are unsuccessful.
Fed. R. Civ. P. 37(a)(3)(B)(iv).
Parties may issue requests for admission under Federal Rule of Civil Procedure 36
directed at “any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application
of law to fact, or opinions about either; and (B) the genuineness of any described documents.”
Fed. R. Civ. P. 36(a)(1). “If a matter is not admitted, the answer must specifically deny it or state
in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond
to the substance of the matter; and when good faith requires that a party qualify an answer or
deny only a part of a matter, the answer must specify the part admitted and qualify or deny the
rest.” Fed. R. Civ. P. 36(a)(4). “The requesting party may move to determine the sufficiency of
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an answer or objection. Unless the court finds an objection justified, it must order that an answer
be served. On finding that an answer does not comply with this rule, the court may order either
that the matter is admitted or that an answer be served. . . . Rule 37(a)(5) applies to an award of
expenses.” Fed. R. Civ. P. 36(a)(6).
Parties are under a continuing duty to supplement responses to discovery “in a timely
manner if the party learns that in some material respect the disclosure or response is incomplete
or incorrect, and if the additional or corrective information has not otherwise been known to the
other party during the discovery process.” Fed. R. Civ. P. 26(e)(1)(A). The failure to supplement
a discovery response may result in sanctions “unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). “[A]n evasive or incomplete disclosure, answer, or response
must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).
“If the motion is granted – or if the disclosure or requested discovery is provided after the
motion was filed – the court must, after giving an opportunity to be heard, require the party or
deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or
both to pay the movant’s reasonable expenses incurred in making the motion, including
attorney’s fees. But the court must not order this payment if . . . (ii) the opposing party’s
nondisclosure, response or objection was substantially justified; or (iii) other circumstances make
an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). If the motion is denied, the Court
may, similarly, assess costs and fees against the movant. Fed. R. Civ. P. 37(a)(5)(B). If the
motion is granted in part and denied in part, the Court “may, after giving an opportunity to be
heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C).
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III.
ANALYSIS
The Court has reviewed Plaintiff’s original responses to Defendant’s discovery requests,
as well as the supplemental document Plaintiff produced after Defendant’s Motion was filed. 2
Having considered these documents in light of the Federal Rules, described above, the Court
makes the following findings:
A) Interrogatories
Defendant’s sixth interrogatory asked Plaintiff to “[i]dentify and describe in detail . . . all
communications [Plaintiff] had with LANS or LANL regarding the termination or suspension of
Task Order No. 1 or any other task orders under MTOA2.” Doc. 38-6 at 2. The interrogatory
asked Plaintiff to identify “any related documents by bates number.” Id. Plaintiff did not object
to this interrogatory, but responded by stating that it “was told verbally on May 23, 2015 that its
performance was excellent by LANS management. . . . [And] [o]n or about May 27, 2015, four
day (sic) after Mr. Bradshaw was specifically told that [Plaintiff] was doing a great job on the
packaging line, the contract manager for MTOA2 sent a termination of task order Notice date
May 27, 2015.” Doc. 38-6 at 2-3. After Defendant’s Motion was filed, Plaintiff supplemented
this answer to communicate that “[i]t is Mr. Bradshaw’s ([Plaintiff’s] Vice President)
understanding that the verbal communication on May 23, 2015 was between John Rodell
([Plaintiff’s] Program Director) and Michael Waver (LANS Subcontract Specialist).” Doc. 44-1
at 1. Plaintiff further identified, by Bates number, “[t]he correspondence regarding Task Order
(TO) termination” and eleven other documents which appear to have been previously provided to
Defendant. Id. at 1-2. In other words, Plaintiff only supplemented and fully answered
Defendant’s sixth interrogatory after Defendant filed the instant Motion.
2
The Court will not repeat the questions and responses verbatim, but has paraphrased and quoted the relevant
material.
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Defendant’s eighth interrogatory asked Plaintiff to “[i]dentify and describe in detail,
including specifically identifying any related documents by Bates number, [Plaintiff’s] process
and persons responsible for assigning and delegating work for the MTOA2 and Task Order No.1.
. . .” Doc. 38-6 at 4. Plaintiff did not object, but responded by stating that it “managed it (sic)
MTOA2 contract from both the main office in Albuquerque and the [Plaintiff’s] office at LANL.
Michael Bradshaw was ultimately responsible for the management of MTOA2 and both he and
John Rodell made known to [Defendant’s] manager and LANL that the performance of
[Defendant] on the MTOA2 subcontract was beyond the scope of said subcontract because it was
not limited to the 35 percent of work anticipated and demanded in writing and verbally by
[Plaintiff’s] management to [Defendant]. . . .” Id. After Defendant filed the instant Motion,
Plaintiff supplemented its response by stating, in detail, its “process for assigning and delegating
work.” See Doc. 44-1 at 2-3. Thus, as with Interrogatory 6, Plaintiff only supplemented and fully
answered Defendant’s eighth interrogatory after Defendant filed the instant Motion.
Defendant’s eleventh interrogatory asked Plaintiff to “[i]dentify and describe in detail,
including specifically identifying any related documents by Bates number, each invoice
[Plaintiff] has supplied to LANS under the MTOA2 and whether or not each individual invoice
submitted to LANS has been paid in full or in part.” Doc. 38-6 at 6. Plaintiff did not object, but
responded that “[a]ll invoices have been paid. For references to documents directly related to this
Answer, see Interrogatory Supplement 1 attached hereto.” Id. After Defendant filed the instant
Motion, Plaintiff supplemented this answer by identifying, by Bates number, 15 invoices. Doc.
44-1 at 3-4. Thus, as with Interrogatories 6 and 8, Plaintiff only supplemented and fully
answered Defendant’s eleventh interrogatory after Defendant filed the instant Motion.
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In sum, Plaintiff only adequately responded to the three interrogatories at issue after
Defendant was forced to file its Motion to Compel. Thus, pursuant to Federal Rule of Civil
Procedure 37(a)(5)(A), “the court must, after giving an opportunity to be heard,” order the
payment of Defendant’s reasonable costs and attorney’s fees incurred in making the motion as to
the interrogatories.
B) Requests for Production
Defendant’s seventh and thirteenth requests for production asked Plaintiff to produce “the
Department of Energy Accident Investigation Report dated April 16, 2015, as referenced in
paragraph 29 of [Plaintiff’s] Complaint,” as well as all documents “relating to this report or its
contents” (number 7), and “all communications between [Plaintiff] and [Defendant] regarding
the Teaming Agreement, MTOA2, Subcontract Agreement, Task Order No. 1, and any work
performed thereunder, and/or this Litigation” (number 13). Doc. 38-6 at 7-8. Plaintiff did not
object, but responded to both of these requests for production by stating that “[t]o the extent such
documents exist see attached Reports and documents contained on thumb drive.” Id. However,
after Defendant filed its Motion, Plaintiff supplemented its response to request for production 7
by stating that it “has no documents or communications with DOE or LANS or [Defendant] or
any third parties regarding the AIB report. [Plaintiff] was not involved in the events leading up to
the requirement for an AIB investigation nor provided or was asked to provide any input to the
AIB report.” Doc. 44-1 at 5. Moreover, Plaintiff supplemented its response to request for
production 13 by providing a detailed explanation for its failure to provide documents in the first
place. See id.
In sum, Plaintiff only properly responded to Defendant’s requests for production after the
instant motion was filed. Thus, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), “the
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court must, after giving an opportunity to be heard” order the payment of Defendant’s reasonable
costs and attorney’s fees incurred in making the motion as to the requests for production.
C) Request for Admission
Unlike Plaintiff’s answers and responses to Defendants interrogatories and requests for
production, which, while tardy, have satisfied Defendant, Defendant continues to complain that
Plaintiff’s response to request for admission number 2 is deficient. Doc. 44 at 2. The request is a
straightforward one, seeking an admission that “[Defendant] performed the services billed to
[Plaintiff] in the following invoice numbers: 41537, 40007, 40012, 40760, and 42117.” Doc. 383 at 2. However, plaintiff did not admit or deny the request. Instead, it “admit[ted] to the extent
that the documents speak for themselves. The document (sic) also show that [Defendant]
performed work in excess of the 35 percent limitation and the demands by [Plaintiff] to
[Defendant] that they limit their work on the MTOA2 contract to 35 percent.” Id. The Court
finds that this initial response did not comply with Federal Rule of Civil Procedure 36(a)(4) by
specifically admitting or denying the request. Moreover, Plaintiff’s supplement to the request,
which expands upon its reasons for failing to specifically admit or deny the request, again fails to
conform to the Rule. See Doc. 44-1 at 4-5.
As such, the Court will deem admitted Defendant’s second request for admission. See
Fed. R. Civ. P. 36(a)(6). Additionally, because the Court is granting the Motion as to this
request, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), “the court must, after giving an
opportunity to be heard” order the payment of Defendant’s reasonable costs and attorney’s fees
incurred in making the motion as to the request. See Fed. R. Civ. P. 36(a)(6).
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IV.
CONCLUSION
In sum, the Court finds Defendant’s Motion (Doc. 38) is well-taken and should be
granted because Plaintiff failed to fully answer and respond to Defendant’s interrogatories and
requests for production until after the present motion was filed, and because Plaintiff’s answer to
Defendant’s request for admission number 2 remains deficient. As such, the Court hereby orders:
1. Defendant’s request for admission number 2 is deemed admitted.
2. Within 14 days of the entry of this order, Defendant shall file a motion seeking its
costs and fees associated with the filing of its Motion (Doc. 38) and attaching thereto
an affidavit from counsel explaining why the costs and fees sought were reasonably
incurred in making the motion. Plaintiff shall respond to Defendant’s request for costs
and fees within 14 days thereafter and should explain either why the requested costs
and fees were not reasonably expended or why the imposition of sanctions would be
unjust. Defendant may file a reply as contemplated by this Court’s local rules.
3. Because the Court has already extended the discovery deadline by seven months, see
Doc. 48, Defendant’s request for additional costs and fees associated with follow-up
depositions of Messrs. Rodell and Edgmon is hereby denied.
IT IS SO ORDERED.
________________________
JERRY H. RITTER
U.S. MAGISTRATE JUDGE
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