McNeese Photography LLC et al v. Access Midstream Partners LO et al
ORDER granting 160 Third Motion to Compel. The Court directs the parties to complete the agreed upon procedure within 60 days. Signed by Honorable Timothy D. DeGiusti on 9/11/2017. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
Case No. CIV-14-503-D
On September 5, 2017, the Court heard oral argument on Plaintiff’s Third
Motion to Compel [Doc. No. 160].1 At issue in the Motion is whether Defendant is
obligated to produce “the general ledger detail for all accounts (and sub-accounts)
that could reflect payments for advertising, printing, promotion, public relations,
safety education, investor relations, branding, etc., for the periods from June 1, 2012
through September 30, 2015.” See Mot. at 1.
Counsel for Plaintiff admits that the referenced general ledger documents
were not specifically requested in any prior request for production of documents, but
are related to other previous document requests and necessary to assess the adequacy
of production pursuant to those requests. Further, Plaintiff’s counsel referred to an
Defendant responded to the Motion [Doc. No. 163], and Plaintiff filed a reply [Doc.
agreed framework, announced by counsel in open court as a resolution to Plaintiff’s
Second Motion to Compel [Doc. No. 69], as further evidence of entitlement to the
documents sought through the instant Motion. Defendant contends, inter alia, that
the Motion is a tardy attempt to re-open discovery that closed long ago, and it has
fulfilled any obligations regarding the Second Motion to Compel which also
addressed this issue.
The Court has reviewed the parties’ briefs, materials provided and referenced
during the hearing, the case record, and the hearing proceedings on the Second
Motion to Compel held on July 1, 2016, and rules as follows.
Although it is doubtful that the general ledger documents sought by Plaintiff’s
Motion were fairly included within any prior discovery requests, they were expressly
made subject to an agreement between counsel in connection with an attempted
resolution of Plaintiff’s Second Motion to Compel. In connection with that motion,
the parties, through counsel, agreed to a framework that required Defendant to
produce a chart of accounts from Defendant’s general ledger. After a joint review of
the chart, the parties were to identify specific accounts that could relate to invoices
paid for advertising potentially related to infringing works. Detail from the general
ledger would then be produced for the identified accounts, and from this production,
Plaintiff’s counsel would designate items for the production of corresponding
invoices. The parties agreed the relevant timeframe would be June 1, 2012 through
September 30, 2015.
Defendant produced the chart of accounts and subsequently produced a
spreadsheet reflecting numerous entries for one of those accounts, “G&A Advertising Expense.” Defendant subsequently filed a Notice stating that the issues
related to the Second Motion to Compel had been fully resolved [Doc. No. 130].
Plaintiff attempted to take issue with the Notice [Doc. No. 132], but Plaintiff’s filing
was rejected by the Court for failure to follow discovery dispute procedures
previously imposed [Doc. No. 133]. Despite the Court’s Order rejecting Plaintiff’s
filing disputing Defendant’s Notice, Plaintiff did not effectively attempt to bring to
the Court’s attention any lingering discovery issues relating to the Second Motion to
Compel for approximately nine (9) months, when he filed the instant Motion on June
2, 2017. The record does reflect that there were some e-mail messages and
correspondence between the parties in the interim addressing the production of
general ledger materials.
Although the diligence of the parties in addressing this issue leaves much to
be desired, the fact remains that the parties agreed to a framework for the production
of general ledger details that has not been fully performed. During the hearing,
Plaintiff provided a copy of the chart of accounts on which eight (8) specific
accounts were highlighted.2 Accordingly, the Court directs the parties to complete
the procedure upon which they agreed with respect to each of the identified eight
accounts, and will allow the parties sixty (60) days in which to do so. The Court
cautions the parties that nothing in this Order is intended to expand discovery or
production beyond the eight specified accounts and the production related thereto
contemplated in the parties’ agreement. General discovery in this case is closed.
IT IS SO ORDERED this 11th day of September 2017.
The selected accounts (with description) are: (1) 8001675 (G&A – EMPLY
TRAINING AND SEMINAR); (2) 80001726 (G&A – BENEFITS
ADMINISTRATION); (3) 80001900 (G&A – BOARD OF DIRECTORS
MEETING); (4) 80002050 (G&A – ADVERTISING EXPENSE): (5) 80002250
(G&A – SHAREHOLDER RELATIONS); (6) 80003521 (G&A – PRINTING); (7)
80004404 (G&A – EXPENSE ALLOCATION); and (8) 80004405 (G&A –
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