WILLIFORD v. RICE ENERGY, INC.

Filing 71

ORDER granting in part and denying in part 63 Motion to Compel Discovery. Signed by Judge Arthur J. Schwab on 2/9/2018. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BURTON WILLIFORD, individually and on
behalf of all others similarly situated,
17cv0945
ELECTRONICALLY FILED

Plaintiffs,
v.
RICE ENERGY, INC,
Defendant.

MEMORANDUM ORDER
Before the Court is Plaintiffs’ Motion to Compel Discovery. Doc. no. 63. Defendant
filed a Response to same (doc. no. 68) and Plaintiffs filed a Reply. Doc. no. 69. For the reasons
set forth herein, the Plaintiffs’ Motion will be GRANTED in part and DENIED in part.
The scope of discovery as defined in Federal Rule of Civil Procedure 26(b)(1) is limited
only by relevance, and relevance is construed broadly to include “[a]ny matter that bears on, or
that reasonably could lead to other matter that court bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978); see also Fed.R.Civ. P.
26(b0(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case . . .”).
Turning to the instant matter, Plaintiffs first ask this Court to strike one of Defendant’s
“general objections” to its interrogatory answers and response to its document requests. In this
“general objection” Defendant states the following:
3.
The fact that Defendant has responded to or objected to the
Interrogatories, or any part thereof, may not be taken as an admission of
any fact set forth in or assumed by the Interrogatories or that such answer
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constitutes relevant evidence. The fact that Defendant has answered part
or all of any of the Interrogatories shall not be construed to be a waiver by
Defendant of any objections to part or all of any of the Interrogatories.
Nothing contained herein shall be construed as an implied admission of
any fact.
Doc. no. 64-1. Plaintiffs’ primary contention is the first sentence of the above paragraph which
suggests that no fact stated by Defendant in response to an interrogatory or document request can
be taken as an “admission.”
The Court concurs with Plaintiffs’ interpretation of Defendant’s first sentence, finding
that it suggests that no matter what Defendant states in any response to any discovery request, it
cannot be held accountable for such statements. However, if a relevant statement of fact is made
by Defendant in any response, and should Plaintiffs seek to use that statement as an admission,
or use that fact to question a witness during a deposition, the decision as to whether any of
Defendant’s relevant statements in its written discovery responses equates to an admission would
rest with this Court. No qualifier nor caveat Defendant places in its “general objections” to
written discovery can negate or reverse the impact of providing verified responses which state
facts that, once verified, upon which the opposing party may accept as admissions – if those
statements of fact rise to the level of an admission. See Fed.R.Civ.P. 33 (b)(5). Simply put,
although the Court agrees with the Plaintiffs’ interpretation of Defendant’s general objection, the
legal issue raised by that objection is not yet ripe, and thus this Court cannot issue a ruling.
However, should Defendant attempt to disavow, renounce, or disclaim a relevant fact established
by and/or set forth in one or more of its written and verified discovery responses, then Plaintiffs
should, at that juncture, appropriately request that this Court rule.
Second, the gravamen of Plaintiffs’ Motion to Compel surrounds Defendant’s more
specific objection to several requests wherein Defendant asserts that it contracted with “a

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reputable third party company for a service (not its personnel),” and that “documents
responsive . . . would have been between the third party vendors and Plaintiff, the opt-in
Plaintiffs, or the other Putative Class Members,” so that “said documents would be in the
possession of said third party vendors and/or . . . Plaintiffs.” See doc. no. 64 p. 3. Defendant
also notes in its Response to Plaintiff’s Motion to Compel that in other similar cases, counsel for
these Plaintiffs, has requested documents directly from the third party vendors via subpoena.
Defendants query why Plaintiffs are now demanding that Defendant produce these documents.
See doc. no. 68. Plaintiffs’ Reply argues that Defendant produced a contract which provided
Defendant with the right to inspect much more than personnel records, specifically, “all financial
books, supporting records, or any other documentation of a business or technical nature . . . and
shall include access to information . . . from personnel . . . .” Doc. no. 69. Plaintiffs further
contend that Defendant’s purported contractual right to inspect documents from third party
vendors places Defendant squarely within Fed.R.Civ.P. 34(a)(1) requiring Defendant to produce
same. Id.
Applying Rule 34(a)(1) to this case, Defendant, herein, must produce items that are
within Defendant’s “possession, custody, or control.” If Defendant possesses, has custody of, or
actually has “control” over any of the documents Plaintiffs seeks, it is required, by law, and now
this Order, to produce those documents. To assist the Parties, particularly Defendant, in
determining what is meant by “control,” the Court notes that first, it is not a bar to the discovery
of relevant material that the same material may be in the possession of the requesting party or
obtainable form another source. See Fort Washington Resources, Inc. v. Tannen, 153 F.R.D. 78,
79 (E.D. Pa. 1994) (“Defendant must produce the requested documents regardless of their
existence in the possession of Plaintiff or of their accessibility through the sub-contractors.”)

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Second, the Court would remind the Parties that a Party’s failure to disclose any information
required by Rule 26 can become subject to sanctions (including, but not limited to, attorney's
fees, reasonable expenses, informing the jury of the failure to disclose, or preclusion of such
information as evidence at trial) under Federal rule of Civil Procedure 37. Simply put, should it
be determined that a Party has not produced documents over which she/he/it had “control,” that
Party can, and will, be sanctioned by this Court at the opposing Party’s request and upon proof of
same.
ORDER OF COURT
AND NOW, this 9th day of February, the Court DENIES Plaintiff’s Motion to Compel
without prejudice as to Defendants’ general Objection found in paragraph 3 at doc. no. 64-1.
However, should Defendant attempt to disclaim a relevant fact established by and/or set forth in
one or more of its discovery responses, then Plaintiffs should, at that juncture, appropriately
request that this Court to rule on Plaintiffs’ motion.
The Court GRANTS Plaintiff’s Motion Compel Discovery and hereby ORDERS
Defendant to produce by February 16, 2018, any responsive documents in their possession,
custody, or control. Should Defendant lack possession, custody, or control over one or more
type(s) of document requested by Plaintiffs, an affirmative statement expressing same, made
under oath by an appropriate officer of Defendant, must be added to Defendant’s Response(s) to
Plaintiffs’ Request(s).
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

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All ECF Registered Counsel of Record

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