Smithfield Business Park, LLC v. SLR International Corporation

Filing 147

ORDER allowing in part and denying in part 142 Motion to Compel. The parties are reminded to read the order in its entirety for detailed information. Signed by Magistrate Judge Robert B. Jones, Jr. on 8/11/2014. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-282-F
SMITHFIELD BUSINESS PARK, LLC,
Plaintiff,

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)
)

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)
)
SLR INTERNATIONAL CORPORATION,)
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Defendant/Third-Party Plaintiff,
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v.
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MASSOUD TABRIZI, INDUSTRIAL
)
REALTY GROUP, LLC and SESTECH
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ENVIRONMENTAL, LP.,
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)
Third-Party Defendants.
)

v.

ORDER

This matter comes before the court on the motion of Defendant/Third-Party PlaintiffSLR
("SLR") to compel Third-Party Defendant Massoud Tabrizi ("Tabrizi") to provide complete
responses to its written discovery requests. [DE-142]. The issues before the court have been
fully briefed and are ripe for ruling. For the reasons below, SLR's motion to compel is
ALLOWED IN PART and DENIED IN PART.

I. BACKGROUND
On April 18, 2012, Plaintiff Smithfield Business Park, LLC ("Smithfield") filed a
complaint in the North Carolina Superior Court of Johnston County against Defendant SLR
("SLR") alleging breach of contract, professional negligence and negligent misrepresentation in
connection with an agreement to provide certain environmental work on property owned by
Smithfield ("Smithfield Project"). [DE-1-1, 3-1]. On May 21,2012, SLR removed the case to

federal court and filed its answer on June 8, 2012. [DE-l, -7]. On September 18,2013, SLR filed
an amended third-party complaint asserting claims against Third-Party Defendants Industrial
Realty Group, LLC ("IRG"), Sestech Environmental, LP ("Sestech") and Tabrizi for fraud,
constructive fraud and/or fraudulent inducement, civil conspiracy, and contribution and/or
indemnity. [DE-55] ,-r,-r 30-33, 36-37, 45-46. SLR has also asserted additional purported claims
of contractual indemnity and breach of fiduciary duty against Tabrizi. !d. ,-r,-r 27-29, 34-35.
On November 25,2013, in lieu of answering SLR's claims, Tabrizi filed a motion to
dismiss the amended third party complaint. [DE-70]. On December 27,2013, SLR served its
Requests for Production and First Set oflnterrogatories upon Tabrizi. [DE-142-3, -142-4].
Subsequently, on January 10, 2014, Tabrizi filed a motion for a protective order seeking, among
other things, a stay of written discovery pending the resolution of his motion to dismiss. [DE94]. On January 29, 2014, Tabrizi served his objections and responses to SLR' s written
discovery requests in which he asserted that notwithstanding his objections, "[i]fnecessary,
Tabrizi would provide a substantive response after resolution of his Motion for Protective Order
to Stay Discovery." [DE-142-5 and -142-6]. On March 17,2014, this court denied Tabrizi's
motion for a protective order to stay discovery. [DE-138]. By letter dated March 17, 2014, SLR
requested Tabzizi withdraw his objections to the written discovery requests, provide complete
answers and responsive documents and make himself available for deposition. [DE-142-8]. SLR
asserts that as of the filing of the motion to compel, Tabrizi had refused to amend his earlier
responses or produce any responsive documents. [DE-142-1 at 3]. On May 12, 2014, Tabrizi
responded in opposition to SLR's motion to compel. [DE-143]. Tabrizi's response indicates,
among other things, that he served amended objections and responses to SLR's written discovery
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requests on May 12, 2014, and Tabrizi has included these amendments as an exhibit to his
response. [DE-143-1 and -143-2]. Having reviewed these amended responses, the court inquired
of SLR whether any of its written discovery requests required court action. [DE-144]. SLR
reported that the discovery remaining in dispute was limited to Tabrizi's response to SLR's
Interrogatory No. 12 and Request for Production Nos. 2, 6, 8 and 18. [DE-145]. On July 29,
2014, the court entered an order on Tabrizi's motion to dismiss, dismissing all of SLR's thirdparty claims against Tabrizi except SLR's claim for contribution. [DE-146 at 14].

II. LEGALSTANDARD
Whether to grant or deny a motion to compel is generally left within the district court's
broad discretion. Lone Star Steakhouse & Saloon, Inc. v. Alpha Va., Inc., 43 F.3d 922, 929 (4th
Cir. 1995). The Federal Rules of Civil Procedure enable parties to obtain information by serving
requests for discovery on each other, including interrogatories and requests for production of
documents. See generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of
discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense .... For good cause, the court may order discovery
of any matter relevant to the subject matter involved in the action. Relevant
information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(l). The rules of discovery, including Rule 26, are to be given broad and
liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. o[Governors,
No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. Sept. 27, 2000); Spell v. McDaniel,
591 F. Supp. 1090, 1114 (E.D.N.C. 1984) ("Rules 26 through 37 ofthe Federal Rules have been
interpreted liberally to allow maximum discovery.").

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While Rule 26 does not define what is deemed relevant for purposes of the rule, relevance
has been "broadly construed to encompass 'any possibility' that the information sought may be
relevant to the claim or defense of any party." Equal Emp 't Opportunity Comm 'n v. Sheffield
Fin. LLC, No. 1:06-CV-889, 2007 WL 1726560, at *3 (M.D.N.C. June 13, 2007) (quoting
Merrill v. Wajjle House, Inc., 227 F.R.D. 467, 473 (N.D. Tex. 2005)); see also Mainstreet
Collection, Inc. v. Kirkland's, Inc., 270 F.R.D. 238,240 (E.D.N.C. 2010) ("During discovery,

relevance is broadly construed 'to encompass any matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or may be in the case.'") (quoting
Oppenheimer Fund., Inc., v. Sanders, 437 U.S. 340,351 (1978)). The district court has broad

discretion in determining relevance for discovery purposes. Watson v. Lowcountry Red Cross,
974 F.2d 482, 489 (4th Cir. 1992). However, "[the] court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including ... (A) forbidding the disclosure or discovery; ... or (D) forbidding inquiry
into certain matters, or limiting the scope of disclosure or discovery to certain matters .... " Fed.
R. Civ. P. 26(c)(l).
Motions to compel responses to interrogatories and document production requests are
governed by Federal Rule of Civil Procedure 37(a)(3)(B), which provides that if a party declines to
answer an interrogatory or document production request, the serving party "may move for an order
compelling an answer, designation, production, or inspection." The party resisting discovery bears
the burden of showing why the motion to compel should not be granted. Mainstreet, 270 F.R.D. at
241 (citing Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980) & Rogers v.
Tri-State Materials Corp., 51 F.R.D. 234, 247 (N.D.W. Va. 1970)). Specifically, the party seeking

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protection from the court from responding to discovery must make a particularized showing of why
discovery should be denied, and conclusory or generalized statements fail to satisfy this burden as
a matter oflaw. See Carejirst ofMd, Inc. v. Carejirst Pregnancy Ctrs., Inc., 334 F.3d 390,402-03
(4th Cir. 2003); see also Jones v. Circle K Stores, Inc., 185 F.R.D. 223, 224 (M.D.N.C. 1999)
(regarding issuance of a protective order).
Federal Rule of Civil Procedure 33 governs interrogatories.

It states that "[e]ach

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)(4). All objections must be stated with specificity, and any
objection not raised is waived. !d. "If the objection has been properly articulated, it rests with the
party seeking discovery to show that a discovery request lies within the bounds of Rule 26." ld
Federal Rule of Civil Procedure 34 governs document production requests. Pursuant to Rule
34, a party may request that the opposing party "produce and permit the requesting party ... to
inspect, copy, test, or sample" relevant documents, electronically stored information, and tangible
things that are within the party's "possession, custody, or control." Fed. R. Civ. P. 34(a)(l). The
party served with a document production request may object to the request if a legitimate basis for
doing so exists. See Fed. R. Civ. P. 34(b)(2)(B) & (C). Thus, a party may object that a document
production request exceeds the scope of discovery permitted by Rule 26(b)(1 ); that the request
should be denied on the grounds stated in Rule 26(b)(2)(C); that the request impermissibly seeks
privileged or work product material, see Fed. R. Civ. P. 26(b)(3); or that documents should not be
produced without implementation of a protective order, see Fed. R. Civ. P. 26(c). All objections to
document production requests must be stated with particularity and specificity; objections may not
be "boilerplate." See Hall v. Sullivan, 231 F.R.D. 468,470 (D. Md. 2005); Thompson. v. Dep't of
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HUD, 199F.R.D. 168,173 (D. Md. 2001);Marensv. Carrabba's Italian Grill, 196F.R.D. 35,38-39
(D. Md. 2000). With these legal precepts in mind, the undersigned considers the motion to compel.

III. ANALYSIS
SLR's Interrogatory No. 12.
This interrogatory asks Tabrizi to identify and describe other litigation to which he has
been a party in the last ten years involving the same and/or similar claims as those which form
the basis of the instant action. [DE-142-6 at 8]. The interrogatory asks Tabrizi to provide a list of
any lawsuits involving causes of action similar to those in this case, providing the county and
state in which each was filed, as well as the date, nature, identity of counsel and the final
disposition of such lawsuits. In his initial response, Tabrizi asserted boilerplate objections that
the interrogatory is overly broad, unduly burdensome and not reasonably likely to lead to the
discovery of admissible evidence. !d. Tabrizi objected further on the grounds that the
interrogatory is vague. Id. Tabrizi indicated that subject to his objections, "[i]f necessary,
Tabrizi will provide a substantive response after resolution of his Motion for Protective Order to
Stay Discovery." Jd. Tabrizi reasserts his original objections in his amended response. [DE-1431 at 8]. Tabrizi's objections are boilerplate objections and are overruled. Additionally, the court
finds the interrogatory to be reasonably calculated to lead to the discovery of admissible evidence
and that Tabrizi has failed to show how his response to the interrogatory would lead to
annoyance, embarrassment, oppression or present an undue burden or expense. Accordingly,
Tabrizi is directed to respond to Interrogatory No. 12 within fourteen days of this order.
SLR's Reguest for Production No.2.
This request seeks production of all documents that pertain to Tabrizi' s relationship with

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SLR related to the Smithfield Project. [DE-142-5 at 4]. In his initial response, Tabrizi asserted
boilerplate objection on the grounds that the request is overly broad and vague. !d. Tabrizi also
responded that subject to his objections, "[i]fnecessary, Tabrizi will provide a substantive
response after resolution of his Motion for Protective Order to Stay Discovery." !d. In his
amended response, Tabrizi reasserts his boilerplate objections and states that although he is
unable to locate any responsive documents, "[s]hould responsive documents be located, Tabrizi
will supplement accordingly." [DE-143-2 at 4]. Tabrizi's objections are boilerplate objections
and are overruled. Additionally, the court finds the request to be reasonably calculated to lead to
the discovery of admissible evidence and that Tabrizi has failed to show how his response to the
request would lead to annoyance, embarrassment, oppression or present an undue burden or
expense. Notwithstanding Tabrizi's amended response, he is directed to respond to this request
in a timely manner should any such documents come within his possession, custody or control.
Fed. R. Civ. P. 26(e).
SLR's Request for Production No.6.
This request seeks any documents including, but not limited to, communications, e-mails
or correspondence between Tabrizi and SLR related to the Smithfield Project. [DE-142-5 at 5].
According to Tabrizi's initial response, in which he did not object to this request, Tabrizi stated
that "[i]fnecessary, Tabrizi will provide a substantive response after resolution of his Motion for
Protective Order to Stay Discovery." !d. In his amended response, it appears Tabrizi has
attempted to incorporate an earlier objection to the request, which the court deems to have no
effect, no objection having been made initially. Tabrizi states further that while he is unable to
locate any responsive documents, he will supplement his response should responsive documents
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be located. [DE-143-2 at 5]. The court finds the request to be reasonably calculated to lead to the
discovery of admissible evidence and that Tabrizi has failed to show how his response to the
request would lead to annoyance, embarrassment, oppression or present an undue burden or
expense. Notwithstanding Tabrizi's amended response, he is directed to respond to this request
in a timely manner should any such documents come within his possession, custody or control.
Fed. R. Civ. P. 26(e).
SLR' s Request for Production No. 8.
This request seeks any documents, including, but not limited to, communications, e-mails
or correspondence between Tabrizi and IRG relating to the Smithfield Project. [DE-142-5 at 6].
According to Tabrizi's initial response, in which he did not object to this request, Tabrizi stated
that "[i]fnecessary, Tabrizi will provide a substantive response after resolution of his Motion for
Protective Order to Stay Discovery." !d. In his amended response, it appears Tabrizi has
attempted to incorporate an earlier objection to the request, which the court deems to have no
effect, no objection having been made initially. Tabrizi states further that he has no responsive
documents. [DE-143-2 at 6]. The court finds the request to be reasonably calculated to lead to
the discovery of admissible evidence and that Tabrizi has failed to show how his response to the
request would lead to annoyance, embarrassment, oppression or present an undue burden or
expense. Notwithstanding Tabrizi's amended response, he is directed to respond to this request
in a timely manner should any such documents come within his possession, custody or control.
Fed. R. Civ. P. 26(e).
SLR's Request for Production No. 18.
This request seeks the production of any and all documents which Tabrizi intends to

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introduce into evidence or use at the time of trial for any purpose. [DE-142-5 at 8-9]. In his
initial response, Tabrizi objected to the request "to the extent it calls for him to marshal his
evidence at this point in time." !d. at 9. Without waiving the objection, Tabrizi responded that
"[i]fnecessary, Tabrizi will provide a substantive response after resolution of his Motion for
Protective Order to Stay Discovery." !d. In his amended response, Tabrizi reasserts his earlier
objection but states that he will disclose the evidence he intends to introduce at trial in
accordance with the Federal Rules of Civil Procedure and the court's procedures. [DE-143-2 at
8]. Tabrizi's objection to providing responsive documents on the grounds of timeliness is
overruled. Tabrizi is directed to provide responsive documents in accordance with the
obligations imposed upon him as a party to this litigation in accordance with the Federal Rules of
Civil Procedure and court's procedures in preparation for the trial of this matter.
Other Discovery.
According to SLR's status report filed with the court [DE-145], there are no other
disputes regarding Tabrizi' s responses to the interrogatories and document production requests
that are the subject ofSLR's motion to compel. Accordingly, SLR's motion to compel as it
relates to those written discovery requests is denied as moot.

IV. CONCLUSION
For the reasons stated above, SLR's motion to compel [DE-142] is allowed in part and
denied in part.
So ordered the lith day of August 2014.

1-~rf-4=

Robert B. Jones, .
United States Magistrate Judge

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