Benham v. Ozark Materials River Rock, LLC

Filing 114

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 96 Motion to Compel (tjc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID BENHAM,
PLAINTIFF,
vs.
OZARK MATERIALS RIVER ROCK,
LLC,
DEFENDANT.

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CASE NO. 11-CV-339-JED-FHM

OPINION AND ORDER
Plaintiff’s Continued Motion to Compel Discovery [Dkt. 96] is before the
undersigned United States Magistrate Judge for decision. Plaintiff seeks an order
pursuant to Fed.R.Civ.P. 37(a) compelling Defendant to comply with discovery
requests under Rule 34 which compels a party to produce and permit the requesting
party or its representative to inspect, copy, test, or sample items in the responding
party’s possession, custody or control. The motion has been fully briefed and is at
issue.
Background
Plaintiff served Defendant with discovery requests on December 12, 2012.
Plaintiff subsequently filed his Motion to Compel, [Dkt. 67], which was granted on
May 3, 2013, [Dkt. 74]. Plaintiff complains that Defendant has not complied with the
Court’s previous discovery order and requests the following:

1)

An Order directing Defendant to provide a Privilege
Log;

2)

An Order compelling Defendant to fully respond to
Request for Production No. 8 which seeks “[all]
records of fuel purchased for the operation of
equipment for the production of gravel from your
gravel mining operation, since January 1, 2006,”

3)

An Order compelling Defendant to fully respond to
Request for Production No. 11 which seeks “[a]ll
federal and state tax returns showing the income
received from your gravel mining operation since
January 1, 2006.”

Defendant responds that it has produced a Privilege Log and Plaintiff is in
agreement. Defendant claims it has produced tax returns and is in compliance with
Request for Production No. 11. Plaintiff counters that Defendant is not in compliance
with Request for Production No. 11 because tax documents produced by Defendant
were 2007 through 2012 Schedule C tax forms of Brad Eastman rather than Ozark
Materials River Rock, LLC’s federal and state income tax returns for 2006 through
2012.
Defendant further claims that it is not in possession of documents responsive
to Request for Production No. 8. Plaintiff counters that Mr. Eastman’s Schedule C
forms for 2007 through 2012 indicate fuel was claimed as an expense.
Defendant should be in possession of supporting documentation.

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Thus,

Analysis
There is no basis on which to deny the motion to compel. Plaintiff’s Continued
Motion to Compel is GRANTED.
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In response to Request for Production No. 8, Defendant is required to
produce entire federal and state income tax returns for the years 2006
through 2012 for Ozark Materials River Rock, LLC.

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Defendant is required to perform a diligent search for documents
responsive to Request for Production No. 11. If the Defendant is unable
to locate responsive documentation, a detailed explanation of its search
efforts will be provided to Plaintiff. Further, Defendant will provide an
explanation as to why it is not in possession of the fuel records when
those costs are claimed on Mr. Eastman’s 2007 through 2012 Schedule
C forms.

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Defendant is required to provide supplementation of its responses to
these discovery requests on or before September 9, 2013.

SO ORDERED this 26th day of August, 2013.

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