Crest Resources, Inc. v. Dan Blocker Petroleum Consultants, Inc. et al

Filing 106

OPINION AND ORDER by Magistrate Judge Paul J Cleary setting deadlines re 91 Motion to Compel (Re: 91 MOTION to Compel Plaintiff ) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

CREST RESOURCES, INC.,

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Plaintiff,
v.
DAN BLOCKER PETROLEUM
CONSULTANTS, INC, et al.,
Defendants;
-andWEATHERFORD INTERNATIONAL,
INC.,
Third-Party Plaintiff,
v.
HEXION SPECIALTY CHEMICALS,
INC.,
Third-Party Defendant.

Case No. 09-CV-766-TCK-PJC

OPINION AND ORDER
This matter is before the Court on Defendant Weatherford International,
Inc.’s (“Weatherford”) Motion to Compel Discovery. [Dkt. No. 91]. The Motion
to Compel has three components: First, Plaintiff Crest Resources Inc. (“Crest”)
failed to timely respond to Weatherford’s Seventh and Eighth Requests for
Production. Second, that Crest responded to documents requests by stating that
responsive documents had already been produced, but without identifying for
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Weatherford what those documents were. Third, Crest has not produced the
documents and data that its expert, John Paul Dick, relied on in preparing his
expert report.
The Motion to Compel is hereby GRANTED as set forth below.
Weatherford has served multiple document requests and has received
documents in intermittent production. Crest exercised its right to produce
documents as kept in the “usual course of business” under Fed. R. Civ. P.
34(b)(1)(E)(i). Most of an estimated 7,000 documents that have been produced
were Bates numbered; however, the parties estimate that another 1,000 pages
were produced without Bates numbers. Weatherford complains that there sees
to be “neither rhyme nor reason” to the document production; that is, there is no
apparent organizational structure to how these documents are maintained.
Weatherford also complains that because of the multiple document productions
and supplementation, the statement that responsive documents have “already
been produced” is meaningless. For example, in response to Request for
Production 28 from Weatherford’s Eighth Request for Production, Crest
responded:\
Documents responsive to this request have already been produced
and were produced by Crest as the same are kept in the usual
course of business. Additional responsive documents are produced
on the CDs enclosed herewith.
Weatherford asserts that without knowing which of the previously produced
documents are responsive to this request, there is no way of knowing what
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documents Crest is referring to. Weatherford states that it needs an index that
identifies what Bates-numbered documents are responsive to which document
request. Crest objects that this would amount to Crest assisting Weatherford’s
trial preparation.
The Court first notes that Crest’s responses to the Seventh and Eighth
Requests for Production were well out of time. The Requests were served in
November 2012. Responses were due by December 5 and December 20, but
were not forthcoming until January 2013. Additional documents were produced
before the hearing held on February 19, 2013. Crest’s dilatory responses are not
acceptable.
In State of Oklahoma v. Tyson Foods, Inc., 2007 WL 1498973 (N.D. Okla.
May 17, 2007), U.S. Magistrate Judge Sam Joyner cited with approval a Georgia
opinion dealing with a producing party’s duties under Rule 34(b). Williams v.
Taser Int’l, Inc., 2006 WL 1835437 (N.D. Ga. June 30, 2006). Although the rule
states that a party may produce documents as they are kept in the usual course
of business, there is little guidance in the Rules as to what this means. In
Williams, the court stated a party producing in this manner “must either direct
the [receiving] party to the location or locations within its files where documents
responsive to each of their specific requests may be found, or provide a key or
index to assist the [receiving] party in locating the responsive documents.” Tyson,
2007 WL 1498973, at *3 (quoting, Williams at *7). A party does not satisfy its

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Rule 34 obligations by merely pointing the opposing party to its file and leaving
that party “to sift through documents in an effort to locate those that are
responsive to its requests.” Tyson at *4. The producing party is “obligated to
provide some reasonable assistance to [the receiving party] in the location of
responsive documents.” Id.
The Court need not decide whether this rule applies in every case where
a producing party chooses to produce documents as kept in the usual course of
business. Rather, it is sufficient that under the circumstances herein – late
response to discovery requests, several supplemental productions, no apparent
organizational structure to the production – the Court finds it appropriate to
require Crest to supplement its discovery responses to the Seventh and Eighth
Requests by identifying for Weatherford by Bates number the documents that
correspond to each of the specific document requests. Crest shall make this
supplementation by March 21, 2013.
In addition, Crest is to produce the entire file of documents/data that its
expert Mr. Dick relied upon in formulating the opinions set forth in his expert
reports. Crest is to produce this information by March 21, 2013. Counsel is
cautioned that failure to produce these documents by the deadline could result
in Dick not being permitted to testify at trial.
Any request for fees associated with this Motion to Compel shall be filed
by March 1, 2013.

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IT IS SO ORDERED this 19th day of February 2013.

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