Performance Sales & Marketing, LLC, Iredell County et al

Filing 138

ORDER granting 105 Motion to Compel Discovery; denying without prejudice 115 Motion To Compel and Motion for Extension of Scheduling Deadlines. Signed by Magistrate Judge Dennis Howell on 7/12/11. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:07cv140
PERFORMANCE SALES &
)
MARKETING, LLC, a North Carolina
Limited Liability Company; PSM
GROUP, INC., a North Carolina
Corporation; an GREG SEREY, an
individual,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
LOWE’S COMPANIES, INC.,
)
)
Defendant.
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___________________________________ )

ORDER

Pending before the Court are Plaintiffs’ Motion to Compel Discovery [# 105]
and Defendant’s Motion to Compel and to Extend Discovery Deadlines [# 115]. On
July 7, 2011, the Court held a hearing on the pending discovery motions.

Upon a

review of the record, and after consideration of the argument of counsel at the hearing,
the Court GRANTS Plaintiffs’ Motion to Compel Discovery [# 105]. Because the
parties represented to the Court that they had reached an agreement as to Defendant’s
motion, the Court DENIES without prejudice Defendant’s Motion to Compel [#
115].
I.

Analysis
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Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. Where a
party fails to respond to an interrogatory or a request for production of documents, the
party seeking discovery may move for an order compelling an answer to the
interrogatories or the production of documents responsive to the request. Fed. R. Civ.
P. 37(a)(3)(B).

“Over the course of more than four decades, district judges and

magistrate judges in the Fourth Circuit . . . have repeatedly ruled that the party or
person resisting discovery, not the party moving to compel discovery, bears the
burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243
(M.D.N.C. 2010) (collecting cases); Mainstreet Collection, Inc. v. Kirkland’s, Inc.,
270 F.R.D 238, 241 (E.D.N.C. 2010).
At issue in Plaintiffs’ Motion to Compel are Defendant’s responses to
Plaintiffs’ First Set of Requests to Produce numbers 1-4, 7-9, and 13. Request No. 13
seeks the production of the source code from Defendant’s grill parts ordering system.
Defendant contends that this information is not relevant because Plaintiffs admitted
that they do not own the source code for the GPO system. The Court, however, has
granted Plaintiffs’ motion to withdraw its prior admissions. Accordingly, the Court

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finds that Request No. 13 seeks relevant information and GRANTS the motion as to
Request No. 13.
The remaining requests all relate to Plaintiffs’ fraud claims. Although the
claims are the subject of a pending motion to dismiss, they are still pending before the
Court, and Defendants may not decline to produce responsive documents based on the
fact that the District Court may grant its motion and dismiss these claims. Moreover,
to the extent that no responsive documents exists, Defendant should indicate in
writing to Plaintiffs that it has conducted a reasonable search and uncovered no
responsive documents. Finally, Defendant may not exclude documents pre-dating
2004 from its production of responsive documents. The fact that these documents
may predate the relationship between Plaintiffs and Defendant does not exclude the
possibility that such documents are relevant to Plaintiffs’ claims. And the burden on
Defendant of producing these documents is not so great as to preclude their
production. Accordingly, the Court GRANTS Plaintiffs’ motion as to Requests 1-4
& 7-9.
II.

Conclusion

The Court GRANTS Plaintiffs’ Motion to Compel Discovery [# 105] and
DENIES without prejudice Defendant’s Motion to Compel [# 115]. Plaintiffs shall
have forty-five days from the entry of this Order to supplement its discovery

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responses pursuant to the agreement between the parties. Defendant shall have fortyfive days to produce the documents responsive to Plaintiffs’ First Set of Requests to
Produce Nos. 1-4, 7-9, & 13. The parties shall bear their own costs in bringing these
motions. The Court shall address the pending deadlines for summary judgment
motions, trial, and expert witnesses in a separate scheduling order.

Signed: July 12, 2011

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