Chapman et al v. Hiland Partners, LLC

Filing 140

ORDER by Magistrate Judge Charles S. Miller, Jr. granting 116 Motion to Compel. (KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Lenny M. Chapman and
Tracy M. Chapman,

Plaintiffs,
vs.
Hiland Operating, LLC, a Foreign
Company, Hiland Partners GP Holdings,
LLC, a Foreign Company, and Hiland
Partners LP, a Foreign Partnership,

Defendants and
Third-Party Plaintiff
(Hiland Operating, LLC)
vs.
Missouri Basin Well Service, Inc., and
B&B Heavy Haul, LLC,
Third-Party Defendants.

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ORDER GRANTING
MOTION TO COMPEL

Case No. 1:13-cv-052

Before the court is “Plaintiffs’ Motion to Compel: November 11, 2013 Requests for
Production of Documents” filed February 12, 2014. Defendants filed a response opposing the
motion. On April 11, 2014, the court held a telephonic hearing on the motion. Attorneys Robert
P. Schuster, David S. Maring, and James R. Hoy appeared on plaintiffs’ behalf. Attorneys Margaret
M. Clarke and Patrick W. Durick appeared on defendants’ behalf. Attorney Joel A. Flom appeared
on behalf of third-party defendant Missouri Basin Well Service, Inc. Attorneys Gordon H.
Hansmeier and Christopher A. Wills appeared on behalf of third-party defendant B&B Heavy Haul,
LLC.

I.

BACKGROUND
At issue are defendants’ responses to two sets of Requests for Production of Documents

(“RFPD”) issued by plaintiffs on November 11, 2013. The requests are essentially identical except
that one set was issued to Hiland Partners GP Holdings, LLC (“Hiland Holdings”) and the other was
issued to Hiland Partners, LP (“Hiland Partners”). Plaintiffs assert that defendants’ responses were
inadequate in that they contained improper objections and that they were presented in such a way
that it was difficult, if not impossible, to determine which documents were responsive to which
requests.
Defendants’ responses included both “General Objections” and objections to the specific
document requests. The general objections included at the beginning of the responses provide:
GENERAL OBJECTIONS
These general objections are to all Requests for Production of Documents and
are in addition to any other objections set forth below:
i.

Pursuant to FRE 401 et. seq., this Defendant objects to the Document
Requests that are not relevant to the subject matter of the pending
action and those that are not reasonably calculated to lead to the
discovery of admissible evidence.

ii.

This Defendant objects to the Document Requests that call for
disclosure of information subject to the attorney-client privilege and
the attorney work product doctrine.

iii.

This Defendant objects to the disclosure of any information that was
prepared in anticipation of litigation by and for this Defendant or any
of its representatives that are otherwise beyond the scope of
discovery admitted by Court rule.

iv.

This Defendant objects to the definitions and instructions contained
in the Document Requests to the extent those definitions and
instructions purport to impose duties or obligations in addition to, or
inconsistent with, or different from the requirements of the Federal
Rules of Civil Procedure.
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v.

This Defendant objects to Plaintiffs’ Document Requests to the extent
Plaintiffs purport to require this Defendant to identify or produce
information or documents that are not within this Defendant’s
custody and control. This Defendant will identify or produce
nonprivileged information or documents that are presently in the
custody and control of this Defendant.

vi.

This Defendant objects to Plaintiffs’ instructions concerning the
supplementation of this Defendant’s answers to the extent that those
instructions purport to impose duties or obligations in addition, or
inconsistent with, or different from the requirements of the Federal
Rules of Civil Procedure.

vii.

This Defendant objects to Plaintiffs’ instructions to the extent
Plaintiffs purport to require this Defendant to identify and give
detailed information concerning privileged documents,
communications or information in which such identification is not
required by the Federal Rules of Civil Procedure.

viii.

This Defendant does not concede the relevancy of any Document
Request nor the admissibility of any information provided or
documents produced in response thereto. The fact that information
is provided or documents produced in response to a particular
Document Request does not mean that it is probative of any particular
issue in this matter.

ix.

If any work product or privileged document or information is
inadvertently produced in response to this or other requests, this
Defendant reserves this privilege with respect to the document or
information, its right to object to inspection or copying the document
or information, its right to demand the return of the document or
information, and its right to object to the admissibility of the
document or information.

x.

This Defendant objects to any Document Request to the extent that
it calls for information that falls outside the scope of services
contracted for from this Defendant.

(Docket Nos. 118-3, pp. 1-3; 118-4, pp. 1-3).
In addition, most, if not all, of defendants’ responses to the specific document requests begin
with the statement, “This Defendant objects to this Request as it is overly broad, unduly

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burdensome, vague, ambiguous, seeks irrelevant information and is not reasonably calculated to lead
to the discovery of admissible evidence.”
Following a meet and confer during which the parties attempted to resolve the dispute,
defendants issued a “Notice of Withdrawal of Objections.” (Docket No. 118-7). Defendants’
counsel later sent a letter to plaintiffs clarifying that defendants had withdrawn all general
objections. (Docket No. 118-8).
II.

DISCUSSION
A.

Substantive disputes

During the hearing, plaintiffs identified two requests to which they believed defendants had
failed to produce responsive documents. The court’s rulings as to those requests follow.
1.

REQUEST NO. 16: Please produce all federal and state tax returns for the
tax year of 2011, including any schedules and attachments to such returns,
in the possession, custody, or control of [Hiland Partners/Hiland Holdings]
that reflect the recognition of any income from activities at the Hiland Gas
Plant or that reflect the taking of any deduction, expense, or depreciation in
regard to any activities or operation of the Hiland Gas Plant.

Plaintiffs argue that they need the requested information to help sort out which Hiland
entities named as defendants in this action are liable if plaintiffs prevail. The court inquired of the
parties whether this is a matter that could be resolved by stipulation and eliminate the need for this
discovery. If the parties cannot reach an agreement regarding this matter to the satisfaction of
plaintiffs, defendants shall submit the documents to the court for in camera inspection on or before
April 30, 2014. The documents may be emailed to [e-mail] or delivered to
chambers.
2.

REQUEST NO. 52: Please produce all photographs and videos taken of
Lenny M. Chapman or Tracy M. Chapman at any time, including but not
limited to photographs and videos taken on or after October 19, 2011. This
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request is continuing in nature (as are all the requests) and includes any
surveillance photographs or videos that may be taken of either of the
plaintiffs by any defendant or any agent, representative, attorney, or
investigator for any defendant or the defense at any time. In producing the
photographs and videos, please produce them in electronic form with the
metadata for each image preserved with each such image.
Defendant Hiland Partner’s response to this request refers plaintiffs to Hiland Holding’s
response to RFPD 52. (Docket No. 118-4, p. 43). Defendant Hiland Holding’s response to RFPD
52 refers plaintiffs to Hiland Operating’s response to RFPD 42 and any supplementation thereto.
(Docket No. 118-3, p. 48). Hiland Operating’s response to RFPD 42 includes a number of
objections but ultimately “states that it is not aware at this time of documents responsive to this
Request.” (Docket No. 84-2, p. 36).
During the hearing, plaintiffs’ counsel stated he believed the Chapmans had been or were
being surveilled at the direction of defendants. Defendants stated they had not directed that
plaintiffs be monitored and that they were not aware of any documents responsive to plaintiffs’
request. Defendants have substantively complied with plaintiffs’ Request 52.
B.

Procedural disputes

There simply is no basis for defendants’ “general objections.” See, e.g., Fed. R. Civ. P.
34(b)(2)(B)-(C) (appropriate response must be made to each discovery request and, if an objection
is made to part of the request, the response must specify that inspection will be permitted as to the
remainder).
Also objectionable in this case is defendants’ objection repeated to virtually every discovery
request no matter how specific, targeted and relevant: “This Defendant objects to this Request as
it is overly broad, unduly burdensome, vague, ambiguous, seeks irrelevant information and is not
reasonably calculated to lead to the discovery of admissible evidence.” For example:
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REQUEST NO. 2: Please produce the company directory (or other similar
listing) as it existed as of October 18, 2011, listing the employees of Hiland
Holdings, and their names, addresses, and job titles.
RESPONSE: This Defendant objects to this Request as it is overly broad,
unduly burdensome, vague, ambiguous, seeks irrelevant information and is not
reasonably calculated to lead to the discovery of admissible evidence. Without
waiving any objection and in a good faith effort to cooperate with discovery, Plaintiff
[sic] are referred to Hiland Operating’s response to Interrogatory No. 3 requesting
the contact information of all individuals on shift at the Plant during the relevant time
frame and Hiland Operating’s response to RFPD 5 and all supplementations thereto.
(Docket Nos. 118-3). No attorney acting reasonably and in good faith could conclude this request
was vague and ambiguous. Further, in the particular context of this case, the objections that the
request was unduly burdensome and irrelevant are specious. Finally, the fact that a response was
given subject to the objections does not cure the problem because it is impossible to tell not only
from this specific response but also from the “general objections” what exactly defendants are not
agreeing to provide.
During prior discovery hearings, the court orally expressed its concern about frivolous
discovery objections and suggested in a previous written order that defendants’ repeated objections
of undue burden, vagueness, and lack of relevance, regardless of the specificity and relevancy of the
discovery requests, were improper. See Chapman v. Hiland Operating, LLC, No. 1:13-cv-052,
2014 U.S. Dist. LEXIS 2671, at *29 n.7 (D.N.D. Jan. 6, 2014) (“It is difficult to believe that
defense counsel actually read Request No. 44 before mindlessly interjecting the objections that the
request was overbroad, vague, and ambiguous. It is hard to envision a more specific and directed
document request. Further, even the objections of lack of relevancy or unlikelihood to lead to
discoverable evidence are not a close call and are frivolous.”). However, the message appears not

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to have gotten through since this objectionable conduct on the part of at least some of defense
counsel persisted.
Later, after plaintiffs’ counsel objected, defendants did withdraw most of the improper
objections. However, the manner in which the responses were made makes it difficult to track
through for any particular discovery request exactly what defendants have finally agreed to provide
and what is still objected to.
To eliminate any confusion and doubt about whether defendants are complying or not with
the written discovery that has been served upon them in this case to date, defendants shall prepare
new responses to all discovery requests that (1) eliminate any improper “general objections” of the
type set forth above and (2) clearly specify for each discovery request whether it is being complied
with, not complied with, or partially complied with. And, in the latter two instances, defendants
shall set forth their objections and make only objections for which there is a good faith basis.
Finally, the costs and expense of redoing the discovery responses shall be borne by the law firm for
the attorney who has personally signed the discovery responses and shall not be charged back to
their clients. See Fed. R. Civ. P. 26(g)(3). Also, a copy of this order shall be provided by defense
counsel to their clients.
III.

CONCLUSION AND ORDER
For the reasons stated above, plaintiffs’ Motion to Compel (Docket No. 116) is GRANTED.

Defendants shall provide the court with the documents responsive to Request No. 16 for in camera
inspection by April 30, 2014, unless a satisfactory agreement can be reached with plaintiffs’ counsel.
In addition, defendants shall provide plaintiffs with redone discovery responses in accordance with

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this order by May 5, 2014, and otherwise comply with this order in terms of the costs and expenses
for redoing this discovery.
IT IS SO ORDERED.
Dated this 16th day of April, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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