Autoridad de Carreteras y Transportacion v. TransCore Atlantic, Inc.
Filing
121
OPINION AND ORDER re 65 Motion Requesting Order to Compel HTA to Comply with Discovery Obligations, and re 97 Motion for Protective Order. The Court GRANTS in part and DENIES in part TransCore's motion to compel discovery, (Docket No. 65), and DENIES PRHTA's motion for a protective order, (Docket No. 97). The Court also EXTENDS the discovery period until February 28, 2017. The date to file the proposed pretrial order, the date when the pretrial conference is scheduled and the trial date are set aside. Signed by Judge Francisco A. Besosa on 12/02/2016. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
AUTORIDAD DE CARRETERAS Y
TRANSPORTACION,
Plaintiff,
v.
Civil No. 15-1924 (FAB)
TRANSCORE ATLANTIC, INC.,
Defendant.
OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is a motion to compel discovery and a request
for
sanctions
filed
by
defendant
TransCore
Atlantic,
Inc.
(“TransCore”). (Docket No. 65.) Plaintiff Puerto Rico Highway and
Transportation Authority (“PRHTA”) opposed the motion, (Docket
No. 67).
TransCore later filed an amended informative motion,
(Docket No. 90), and PRHTA responded with a motion for a protective
order, (Docket No. 97).
TransCore opposed this motion, (Docket
No. 99), PRHTA replied, (Docket No. 104), and TransCore filed a
sur-reply, (Docket No. 107).
1
Natalia Vilá-Palacios, a second-year student at the University of
Puerto Rico School of Law, assisted in the preparation of this
Opinion and Order.
Civil No. 15-1924 (FAB)
2
Also before the Court are four motions from both parties
requesting an extension of the discovery period. (Docket Nos. 112-115.)
For the reasons that follow, the Court GRANTS in part and
DENIES in part TransCore’s motion to compel, DENIES PRHTA’s motion
protective order, and GRANTS an extension of the discovery
for a
period.
I.
A.
TRANSCORE’S MOTION TO COMPEL
Background
On December 1, 2015, TransCore sent its first discovery
request to PRHTA, which included a request for production of
documents (Docket No. 65-3) and an interrogatory (Docket No. 65-4.)
According to the Joint Proposed Discovery Plan, PRHTA had 30 days
to answer these discovery requests.
(Docket No. 46 at p. 2.)
On
December 31, 2015 - the deadline to answer TransCore’s first
discovery request - PRHTA asked for a 30-day extension.
(Docket
No. 52-4.) TransCore opposed the 30-day term but proposed a sevenday extension.
(Docket No. 52-5 at p. 3.)
Because the parties
were unable to reach an agreement (Docket No. 65 at p. 5),
TransCore informed the Court of PRHTA’s non-compliance with the
discovery requests, (Docket No. 52.)
The Court ordered PRHTA to
answer TransCore’s discovery requests by January 25, 2016. (Docket
No. 55.)
Civil No. 15-1924 (FAB)
3
Unable to meet the Court’s deadline, PRHTA requested an
additional extension to answer TransCore’s discovery requests.
(Docket No. 57.) The Court granted an extension until February 11,
2016.
(Docket No. 61.)
PRHTA did not comply with the Court’s
order and requested another extension until February 16, 2016,
(Docket No. 62), which the Court granted, (Docket No. 63).
On
February 17, 2016 - one day after the court-ordered deadline PRHTA answered TransCore’s interrogatories.
(Docket No. 65-6.)
The next day, PRHTA sent TransCore some of the documents requested
(Docket No. 65-7), but objected to the production of 49 other
documents, (Docket No. 65-8).
TransCore responded and explained
both why the answers to the interrogatories were inadequate and why
the objections to the production of documents were inappropriate.
(Docket No. 65-9.)
In order to resolve this issue, the parties
held a meet-and-confer teleconference during which PRHTA agreed to
supplement or amend several of its responses by March 1, 2016.
(Docket No. 65-10.)
upon
date
information
to
PRHTA
On March 3, 2016 - two days after the agreed
provided
TransCore,
but
some
additional
mainly
objections to TransCore’s requests.
reiterated
documents
its
and
previous
(Docket No. 65-11.)
On
April 1, 2016, TransCore moved for an order to compel and requested
Civil No. 15-1924 (FAB)
4
the imposition of sanctions.
(Docket No. 65.)
PRHTA opposed.
(Docket No. 67.)
B.
Discussion
TransCore argues that PRHTA has “failed to comply with its
discovery obligations” by providing answers to discovery requests
that
“are
littered
with
unresponsive
refusals to produce documents.”
TransCore
asks
the
Court
to
assertions
and
improper
(Docket No. 65 at pp. 1-2.)
order
PRHTA
to
comply
with
its
discovery requests and seeks the imposition of sanctions against
PRHTA due to its pattern of non-compliance with the Court’s orders.
Id. at p. 27.
PRHTA objects to TransCore’s requests and counters that,
because the terms of the contract between the parties are clear,
there is simply no need for discovery of extrinsic evidence. Rather
PRHTA maintains that the only evidence required for adjudication of
this dispute is the contract itself.
(Docket No. 67 at p. 3.)
Thus, it argues that it should not be required to produce the
requested documents or answer interrogatories unless and until the
Court rules that the language of the contract is ambiguous.
p. 4.
Id. at
Civil No. 15-1924 (FAB)
1.
5
Standard
Federal Rule of Civil Procedure 26 (“Rule 26”) states
that “[p]arties 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” and that information “need
not be admissible in evidence to be discoverable.”
26(b)(1).
Fed. R. Civ. P.
As long at it is acting within the scope of Rule 26, a
party may conduct discovery by, among other things, serving another
party with interrogatories, Fed. R. Civ. P. 33 (“Rule 33”), or by
making requests for the production of documents, Fed. R. Civ. P. 34
(“Rule 34”).
When a party resists the production of evidence, it
“bears the burden of establishing lack of relevancy or undue
burden.”
Sánchez-Medina v. UNICCO Service, Co., 265 F.R.D. 24, 27
(D.P.R. 2009) (Arenas, J.) (citing St. Paul Reinsurance Co. v.
Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000)).
The objecting party “must show specifically how each interrogatory
or request for production is not relevant or how each question is
overly broad, burdensome or oppressive.”
omitted).
Id. (quotation marks
See also Fed. R. Civ. P. 33(b)(4) (providing that “the
grounds for objecting to an interrogatory must be stated with
specificity.”) (emphasis provided); Fed. R. Civ. P. 34(b)(2)(B)
Civil No. 15-1924 (FAB)
6
(providing that objections to a request for document production
must “state with specificity the grounds” for the objection,
“including the reasons.”) (emphasis provided).
Thus, generalized
objections to an opponent’s discovery requests are insufficient.
See, e.g., Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354,
358 (D. Md. 2008) (“Boilerplate objections that a request for
discovery is overbroad and unduly burdensome . . . are improper
unless based on particularized facts.”) (citations and quotation
marks omitted); Walker v. Lakewood Condo. Owners Ass.n, 186 F.R.D.
584, 587 (C.D. Cal. 1999) (“Boilerplate, generalized objections are
inadequate and tantamount to not making any objection at all.”)
If “a party fails to answer an interrogatory submitted
under Rule 33” or “fails to produce documents . . . as requested
under Rule 34”, the opposing party may move for an order compelling
discovery.
2.
Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv).
PRHTA’s General
Requests
Before
tackling
Objection
PRHTA’s
to
TransCore’s
specific
Discovery
objections
to
TransCore’s discovery requests, the Court quickly addresses its
more general objection that the only evidence relevant in this
dispute
pp. 3-4.)
is the contract between the parties.
(Docket No. 67 at
In essence, PRHTA asserts that extrinsic evidence will
Civil No. 15-1924 (FAB)
7
only be admissible if the Court decides that the terms of the
contract are ambiguous.
Id. at p. 4.
Because the Court has yet to
rule on this particular issue, PRHTA argues, TransCore’s discovery
requests are premature and, therefore, currently irrelevant.
general
matter,
however,
“parties
are
entitled
to
a
As a
broad
discovery.” Santiago v. Fenton, 891 F.2d 373, 379 (1st Cir. 1989).
In line with this principle of broad discovery, Rule 26 provides
that “information . . . need not to be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1). Therefore, the fact that
the extrinsic evidence sought by TransCore may not be admissible at
trial is not an appropriate ground on which PRHTA may object to the
discovery of that evidence.
PRHTA’s general objection to all discovery requests is
also inappropriate in light of the Court’s original Case Management
Order issued on September 30, 2015.
(Docket No. 36.)
Through this
Order, both parties were notified of the scope of discovery and of
their various discovery obligations. See Id. at pp. 5-9. Contrary
to its argument, PRHTA cannot now flout these obligations merely
because it believes - in its sole discretion - that the contract
between the parties is unambiguous on its face.
Civil No. 15-1924 (FAB)
For
these
reasons,
8
PRHTA’s
general
objection
to
TransCore’s discovery requests is properly disregarded by the
Court.
3.
PRHTA’s Specific Objections to TransCore’s “First Set of
Interrogatories”
PRHTA objects to 16 out of the 24 questions included by
TransCore in its “First Set of Interrogatories.” [sic] See Docket
No. 65-6.
PRHTA contends that the challenged questions either:
(1) relate to privileged information, (2) are overly broad, or (3)
lack relevance.
(Docket No. 65-6.)
TransCore counters that
PRHTA’s objections are inadequate, boilerplate statements that do
not exhibit the level of specificity required by Rule 33.
No. 65 at p. 7.)
(Docket
TransCore also claims that by merely directing it
to other discovery materials or allegations found in the complaint,
PRHTA
has
failed
to
provide
satisfactory
answers
to
certain
questions in the interrogatory to which it did not object. (Docket
65 at p. 18.)
i.
The Challenged Questions in the Interrogatory
The challenged questions read:
(3) In addition to those already identified
elsewhere in the capital proceedings, list, identify and
describe all documents, tangible things and /or real and
demonstrative evidence in your possession, or in
possession of any of HTA’s agents, representatives,
Civil No. 15-1924 (FAB)
9
contractors and/or consultants which are related in any
way to this case.
(4) Indicate whether any documents related or
referring to the contentions, claims, allegations, or
denials in this case have been discarded and/or
destroyed. For all documents so identified, specify: its
title; who prepared it; to whom it was addressed and the
dates and reasons why the documents were discarded,
destroyed, or are otherwise unavailable.
(6) In addition to those already identified
elsewhere in the captioned proceedings, identify and
provide the full name, address and telephone number, of
every person that may have knowledge or discoverable
information relevant to the allegations in the Complaint
and the Answer to the Counterclaim and/or any related
defenses or issues regardless of whether HTA intends to
use him/her as witnesses during this case. Include the
following:
(a) An individualized and detailed summary of
any information or knowledge they may have regarding this
case and/or any related defenses or issues and their
participation, if any, in the events of this case;
(b) Evidence and nature of their employment or
other relationship with HTA;
(c) Identify
documents
related
to
possessions; and
and
the
describe any and all
information
in
their
(d) Identify any and all statements given by
each one of the persons identified in your answer.
(8) State with detail the basis for every one of
HTA’s allegations and defenses as stated in the Complaint
and Answer to the Counterclaim. Identify every person
that may have knowledge of the facts related to said
defenses and allegations or related issues including all
the officials, agents, employees, officers, atorneys,
accountants, consultants, contractors, experts, other
Civil No. 15-1924 (FAB)
representatives, or any other person acting on HTA’s
behalf that may have knowledge of HTA’s position
regarding
the
equipment
dispute.
Include
an
individualized and detailed summary of any information
they may have regarding such defense or allegation.
Identify all documents that support said allegations
and/or defenses.
(9) With respect to every allegation contained in
the Counterclaim denied in HTA’s Answer to the
Counterclaim, provide the following information in an
independent and separate manner:
(a)
The basis or reason for the denial;
(b) Identify every person whom HTA understands
might have knowledge of the facts supporting such denial,
regardless of whether HTA intends to use such persons as
witnesses during this case;
(c) Provide an individualized and detailed
summary of any information or knowledge they may have
regarding such denial;
(d) Identify all documents related to such
denial, or any related matter; and
(e) Provide a detailed summary of all facts
supporting such denial.
(11) Identify any documents, communications written
or oral, memoranda, notes, or computer records, or emails, concerning any meetings in which you or HTA, HTA’s
agents, officials, employees, consultants or contractors
participated concerning the events and circumstances
related to the allegations of the Complaint, the Answer
to Complaint and/or the allegations in the Answer to the
Counterclaim, where these materials are now located, the
date they were prepared, and identify every person who
prepared or has knowledge of these materials.
10
Civil No. 15-1924 (FAB)
(12) State the basis for
paragraph 7 of the Complaint.
interrogatory, please:
11
your allegation in
In answering this
(a) Explain and express the facts and identify
the documentary evidence upon which you based the above
allegation;
(b) Identify with particularity any and all
witnesses you intend to use to support the above
allegation;
(c) In relation to each of such witnesses,
please give a summary of the testimony the witness will
advance in support of the above allegation.
(14) State the basis upon which you allege in
paragraph
12 of
the
Complaint
that
TransCore’s
“interpretation of the Master Services Agreement is
legally erroneous. The PRHTA and the new provider of
these services negotiated their contract, based on the
text and what was agreed upon by PRHTA and TransCore in
the Master Service Agreement, therefore they did not
contemplate having to acquire this equipment and
materials, believing that the same are PRHTA’s property.”
In answering this interrogatory, please:
(a) Explain and express the facts and identify
the documentary evidence upon which you based the above
allegation;
(b) Identify with particularity any and all
witnesses you may or may not intend to use to support the
above allegation;
(c) In relation to each of such witnesses,
please give a summary of the testimony the witness will
advance in support of the above allegation.
(15) State the basis upon which you allege in
paragraph 23 of the Complaint that “Since the PRHTA is
the owner of all equipment, materials and infrastructure
forming part of the definition of Service Property,
Civil No. 15-1924 (FAB)
TransCore has no right to remove or take this property
with it, once its contract with the PRHTA ends on
June 30, 2015.” In answering this interrogatory, please:
(a) Explain and express the facts and identify
the documentary evidence upon which you based the above
allegation;
(b) Identify with particularity any and all
witnesses you may or may not intend to use to support the
above allegation;
(c) In relation to each of such witnesses,
please give a summary of the testimony the witness will
advance in support of the above allegation.
(16) Describe in detail and identify every person
involved and every document, invoice, inventory and/or
written, taped or electronic communication which form the
basis for your allegation in paragraph 39 of the
Complaint that “the PRHTA has made available to the
above-captioned parties all available mechanisms in order
to address and resolve this dispute extra-judicially.
Among the mechanisms that have been utilized are
correspondence via e-mail between the parties and
meetings to discuss arguments supporting each party’s
position.”
(17) Identify every person who performed any act or
had any responsibility for the performance of any act
with respect to the 2002 Request for Proposal New Toll
Collection System Acquisition & Installation, NTCS
Maintenance and Customer Service Center Management and
Operations Contract No. AC-800197.
(18) Identify every person involved and every
document, invoice, and/or written, taped or electronic
communication regarding M/CSC Monthly Payment Statement
and/or invoices submitted by TransCore to HTA pursuant to
Article 5.4 Special Provisions-NTCS Maintenance and
Customer Service Center Management & Operations Contract
No. AC-8000197.
12
Civil No. 15-1924 (FAB)
13
(19) Identify every person involved and every
document, invoice, inventory and/or written, taped or
electronic communication regarding Equipment Inventory
pursuant to Article 6.5, Special Provisions- Acquisition
& Installation Contract No. AC-8000197.
(20) Identify every person involved and every
document, invoice, inventory and/or written, taped or
electronic communication regarding Request for Payment or
invoice pursuant to Article 13.4 Special ProvisionsAcquisition & Installation Contract No. AC-8000197.
(21) Identify every person involved and every,
document, invoice, inventory and/or written, taped or
electronic communication regarding Echopass, Atento
and/or third party contracts for operations of the
Customer Service Center.
(24) Identify every person and communication (oral,
written, or electronic) that performed any act or had any
responsibility for the performance of any act with
respect to all of the invoices TransCore provided to HTA.
(Docket No. 65-4.)
ii.
Objections Based on Privilege
When a party objects to discovery requests on the
basis of privilege, “the party must, ‘(i) expressly make the claim;
and (ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed — and do so in a manner
that, without revealing information itself privileged or protected,
will enable other parties to assess the claim.’”
Rivera v. Kmart
Corp., 190 F.R.D. 298, 300 (D.P.R. 2000) (Pieras, J.) (citing Fed.
R. Civ. P. 26(b)(5)(A)).
Civil No. 15-1924 (FAB)
Here,
14
PRHTA
argues
that
it
cannot
answer
interrogatories 8, 9, 12, 14 and 15 because “matching testimony and
documents with allegations prior to trial is privileged information
or otherwise not subject to discovery.”
8, 10.)
(Docket No. 65-6 at pp. 6-
In other words, PRHTA claims that it cannot be obligated
to disclose the requested evidence (testimonial and documentary)
because that evidence may in fact be used to support its own
allegations.
The Court agrees with TransCore that this objection
is entirely frivolous and has no basis in law.
Indeed, it defies
the very purpose of discovery, which is to allow litigants access
to “any nonprivileged matter that is relevant to any party’s claim
or defense . . . .”
Fed. R. Civ. P. 26(b)(1) (emphasis provided).
Because PRHTA fails to advance any viable argument to support its
claim of privilege, the Court overrules its objection and GRANTS
TransCore’s motion to compel proper responses to interrogatories 8,
9, 12, 14 and 15.
iii. Objections Based on Overbreadth
The
interrogatory
“mere
[or
request
statement
for
by
production]
a
party
was
that
‘overly
the
broad,
burdensome, oppressive and irrelevant’ is not adequate to voice a
successful objection.”
omitted).
Sánchez–Medina 265 F.R.D. at 27 (citations
“On the contrary, the party resisting discovery must
Civil No. 15-1924 (FAB)
15
show specifically how . . . each interrogatory [or request for
production] is not relevant or how each question is overly broad,
burdensome or oppressive.”
Here,
Id.
PRHTA
claims
that
it
cannot
answer
questions 3, 4, 6, 9, and 11 because their inclusion of the phrases
“related or referring to” or “related in any way” render them
overly broad and, thus, impossible to answer.
pp. 2-8.)
(Docket No. 65-6 at
The Court again agrees with TransCore that these
objections are without legal merit.
Because PRHTA did not provide
any additional information to establish a colorable claim of
overbreadth,
the
Court
overrules
its
objection
and
GRANTS
TransCore’s request to compel proper responses to questions 3, 4,
6, 9 and 11.
iv.
Objections Based on Relevance
PRHTA refuses to answer questions 21 and 24 because
they
allegedly
disagreement
seek
between
information
the
parties.
that
is
(Docket
irrelevant
No.
to
65-6.)
the
More
specifically, PRHTA argues that information regarding third-party
operations of the disputed Customer Service Center equipment is not
pertinent to interpreting the contract between the parties.
The Court reiterates that the scope of discovery
pursuant to Rule 26 includes any nonprivileged matter that is
Civil No. 15-1924 (FAB)
16
“relevant to any party’s claim or defense.”
26(b)(1).
Fed. R. Civ. P.
Here, TransCore asserts that information regarding the
use of the CSC equipment by third parties is important because it
helps to establish PRHTA’s understanding that TransCore owned that
equipment.
(Docket No. 65 at p. 19.)
Because the information it
seeks is relevant to its own claims, TransCore’s discovery requests
are appropriate pursuant to the federal rules.
Accordingly, the
Court GRANTS TransCore’s request to compel a proper response to
questions 21 and 24.
v.
Unsatisfactory Responses to Answered Questions
“Answering interrogatories simply by directing the
proponent to rummage through other discovery materials falls short
of the obligations imposed by Rule 33.”
Mulero-Abreu v. Puerto
Rico Police Dept., 675 F.3d 88, 93 (1st Cir. 2012).
Additionally,
an “incorporation by reference of the allegations of a pleading is
not a responsive and sufficient answer to an interrogatory.”
Atlanta
Coca-Cola
Bottling
Co.
v.
Transamerica
Ins.
Co.,
61
F.R.D. 115, 120 (N.D. Ga 1972) (citations omitted).
Here, PRHTA responds to interrogatories 12, 14, 15,
17, 18, 19, 20, and 24 simply by referring TransCore either to
other discovery materials or to allegations contained in the
complaint.
(Docket No. 65-6 at pp. 8-13.)
In light of the rules
Civil No. 15-1924 (FAB)
17
discussed immediately above, these responses are wholly inadequate.
Accordingly, the Court GRANTS TransCore’s request to compel proper
responses to interrogatories 12, 14, 15, 17, 18, 19, 20, and 24.
4.
PRHTA’s Specific Objections to TransCore’s “First Request
for Production of Documents”
TransCore
claims
that
PRHTA
has
failed
to
provide
adequate responses to 13 of the 30 items appearing in TransCore’s
“First Request for Production of Documents.”
See Docket No. 65 at
p. 27.
i.
The Challenged Requests for Production
The
challenged
requests for
production
read
follows:
(1) A copy of, or a description by category and
location of, all documents, data compilations, and
tangible things in Your possession, custody or control
which refer to, relate to, or regard the allegations,
defenses, and/or affirmative defenses in the pleadings
that were not produced earlier as part of your initial
disclosures.
(6) All
documents,
including
demonstrative
evidence, you intend to use or introduce in evidence at
trial that may not have been previously disclosed.
(9) Copies of every written, taped, and/or
electronic communication between HTA, any person or
entity, and Gila, LLC its subsidiaries or affiliates,
regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
as
Civil No. 15-1924 (FAB)
(b) HTA’s
2014
Request
for
Proposal,
procurement process, negotiations and modifications;
(c)
The CSC equipment and furniture ownership
(d)
LLC; and/or
The transfer of the operation to Gila,
dispute;
(e)
Succession phase.
(10) Copies of every, written, taped and/or
electronic communication between You or any person or
entity, and Gila, LLC, its subsidiaries or affiliates,
including but not limited to any document that contains
any notes of any conversations to support your allegation
in paragraph 12 of the Complaint that “The PRHTA and the
new provider of these services negotiated their contract,
based on the text and what was agreed upon by PRHTA and
TransCore in the Master Service Agreement, therefore they
did not contemplate having to acquire this equipment and
materials, believing that the same are PRHTA’s property.
(12) Copies
of
every
written,
taped
and/or
electronic communication including but not limited to any
notes of any conversation within HTA, any public
corporation or government agency regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
(b) HTA’s
2002
Request
for
Proposal,
procurement process, negotiations and modifications;
(c) HTA’s
2007
Request
for
Proposal,
procurement process, negotiations and modifications;
(d) HTA’s
2014
Request
for
Proposal,
procurement process, negotiations and modifications;
(e)
dispute;
The CSC equipment and furniture ownership
18
Civil No. 15-1924 (FAB)
(f)
LLC; and/or
(g)
The transfer of the operation to Gila,
Succession phase.
(13) Copies of each and every document that contains
any notes of any conversations within HTA regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
(b) HTA’s
2002
Request
for
Proposal,
procurement process, negotiations and modifications;
(c) HTA’s
2007
Request
for
Proposal,
procurement process, negotiations and modifications;
(d) HTA’s
2014
Request
for
Proposal,
procurement process, negotiations and modifications;
(e)
The CSC equipment and furniture ownership
(f)
LLC; and/or
The transfer of the operation to Gila,
dispute;
(g)
Succession phase.
(14) Copies of each and every written, taped and
or/electronic communication between HTA, any person or
entity, and HTA’s former our current consultants but not
limited to Bill Brownsberger and/or E-Trans, Darell
Fleming regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
(b) HTA’s
2014
Request
for
Proposal,
procurement process, negotiations and modifications;
(c)
dispute;
The CSC equipment and furniture ownership
19
Civil No. 15-1924 (FAB)
20
(d)
Change Orders;
(e)
Amendments;
(f)
Equipment inventory;
(g)
TransCore invoices;
(h) Customer Service
Activity Performance Report;
Operations
Periodic
(i)
Atento’s Call Center;
(j)
Echopass;
(k)
The CSC equipment and furniture ownership
(l)
Succession phase; and/or
(m)
The transfer of the operation to Gila,
dispute;
LLC.
(15) Copies of each and every document that contains
any notes of any conversations between HTA, any person or
entity, and HTA’s former or current consultants,
including but not limited to, Bill Brownsberger and/or
Darrell Fleming regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
(b) HTA’s
2014
Request
for
Proposal,
procurement process, negotiations and modifications;
(c)
The CSC equipment and furniture ownership
(d)
Change Orders;
(e)
Amendments;
(f)
Equipment inventory;
dispute;
Civil No. 15-1924 (FAB)
(g)
21
TransCore invoices;
(h) Customer Service
Activity Performance Report;
Operations
Periodic
(i)
Atento’s Call Center;
(j)
Echopass;
(k)
The CSC equipment and furniture ownership
(l)
Succession phase; and/or
(m)
The transfer of the operation to Gila,
dispute;
LLC.
(16) Copies of each and every written, taped and/or
electronic communication between TransCore, any person or
entity, and HTA’s employees, officers and/or officials,
including but not limited to Felipe Luyanda-Andino,
Carlos Contreras, CarmenVillar Prados, Ariel Pérez and/or
Luis Alberto Sánchez regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
(b)
Change orders;
(c)
Amendments;
(d)
Equipment inventory;
(e)
TransCore invoices;
(f) Customer Service
Activity Performance Report;
Operations
(g)
Atento’s Call Center; and/or
(h)
Echopass;
(i)
HTA’s 2014 Request for Proposal;
Periodic
Civil No. 15-1924 (FAB)
22
(j)
The CSC equipment and furniture ownership
(k)
Succession phase; and/or
(l)
The transfer of the operation to Gila,
dispute;
LLC.
(17) Copies of each and every document that contains
any notes of any conversations between TransCore, any
person or entity, and HTA’s employees, officers and/or
officials, including but not limited to Felipe LuyandaAndino, Carlos Contreras, Carmen Villar Prados, Ariel
Pérez and/or Luis Alberto Sánchez regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
(b)
Change orders;
(c)
Amendments;
(d)
Equipment inventory;
(e)
TransCore invoices;
(f) Customer Service
Activity Performance Report;
Operations
Periodic
(g)
Atento’s Call Center; and/or
(h)
Echopass;
(i)
HTA’s 2014 Request for Proposal;
(j)
The CSC equipment and furniture ownership
(k)
Succession phase; and/or
(l)
The transfer of the operation to Gila,
dispute;
LLC.
Civil No. 15-1924 (FAB)
23
(18) Copies
of
every
written,
taped
and/or
electronic communication between HTA, TransCore, any
person or entity, and Yasmín Santiago-Zayas, Esq.
including but not limited to, documents that contain any
notes of any conversations regarding:
(a) The allegations in the Complaint and the
Answer to the Counterclaim;
(b)
HTA’s 2014 Request for Proposal;
(c)
Amendments;
(d)
Equipment inventory;
(e) Customer Service
Activity Performance Report;
Operations
Periodic
(f)
The CSC equipment and furniture ownership
(g)
Succession phase; and/or
(h)
The transfer of the operation to Gila,
dispute;
LLC.
(19) Copies
of
every
written,
taped
and/or
electronic communication between HTA, TransCore, any
person or entity, and Jorge Alberto Ruiz Alvarez,
including but not limited to, documents that contain any
notes of any conversations regarding:
(a) The allegations in the Complaint and the
Answers to the Counterclaim;
(b)
HTA’s 2014 Request for Proposal;
(c)
TransCore invoices;
(d) The CSC equipment and furniture ownership
dispute; and/or
Civil No. 15-1924 (FAB)
(e)
24
The transfer of the operation to Gila,
LLC.
(29) Copies of every, document, invoice, inventory
and/or written, taped or electronic communication
regarding TransCore’s Annual Report and inventory of the
service property pursuant to Article 3.3 of the Special
Provisions -NTCS Maintenance and Customer Service Center
and Operations.
(Docket No. 65-3.)
ii.
Objections Based on the Pending Identification of
Documents
“[A]
response
to
a
request
for
production
of
documents which merely promises to produce the requested documents
at
some unidentified
time
in
the
future,
without
offering
a
specific time, place and manner is not a complete answer as
required
by
Rule
34(b).”
Jayne
H.
Lee,
Inc.
v.
Flagstaff
Industries Corp., 173 F.R.D. 651, 656 (D. Md. 1997). “Furthermore,
the promise to continue to search for records and supplement
responses in the future, is a completely inadequate response to a
long standing discovery request.”
Kinetic Concepts, Inc. v.
ConvaTec Inc., 268 F.R.D. 226, 246 (M.D.N.C. 2010) (citations and
quotation marks omitted).
Here, PRHTA responded to items 9, 10, 12-19 and 29
with a statement that the identification of the requested documents
was “still pending.”
(Docket No. 65-5.)
This does not constitute
Civil No. 15-1924 (FAB)
25
a proper justification for a delay in the production of the
requested documents.
The Court has already granted PRHTA two
extensions to comply with TransCore’s discovery requests.
Nos. 63 and 61.)
(Docket
Because PRHTA has enjoyed a generous amount of
time in which to answer these requests for production properly, its
excuse
that
unwarranted.
these
documents
have
yet
to
be
identified
is
Accordingly, the Court GRANTS TransCore’s motion to
compel the production of documents requested in items 9, 10, 12-19
and 29 of its “First Request for Production of Documents.”
iii. Responses that Merely Refer
Discovery Materials
In
its
initial
responses
to
TransCore
to Other
TransCore’s “First
Request for Production of Documents,” PRHTA answered items 1 and 6
by directing TransCore to “all documents already produced by
PRHTA.”
(Docket
65-5
at
pp.
1-2.)
Additionally,
in
its
complementary responses, it answered items 9, 10, 12-19 and 29 by
referring TransCore “to the production and disclosures made to date
by PRHTA.”
(Docket No. 65-7.)
As discussed above, the mere
referral to other discovery materials does not constitute a proper
answer to a discovery request.
See Mulero-Abreu, 675 F.3d at 93.
Accordingly, the Court GRANTS TransCore’s motion to compel the
Civil No. 15-1924 (FAB)
26
production of documents requested in items 1, 6, 9, 10, 12-19 and
29 of its “First Request for Production of Documents.
5.
PRHTA’s Additional Objections to TransCore’s Requests for
Production
Following a meet-and-confer teleconference between the
parties,
PRHTA
agreed
to
supplement
or
amend
its
discovery
responses (Docket No. 65-10), and submitted a revised list of
documents that it would disclose.
(Docket No. 65-11.)
It also
included in that communication a list of documents that it refused
to produce on various grounds (the “Revised List of Objections”),
including:
(1)
attorney/client
product, and (3) relevance.
privilege,
(2)
(Docket No. 65-11.)
attorney
work
TransCore argues
that while PRTHA did indeed provide some additional documents and
information in this complementary production, it mostly reiterated
its prior objections to TransCore’s requests.
(Docket No. 65 at
pp. 7-8.)
i.
Objections Based on Attorney-Client Privilege
As discussed above, when a party objects to a
discovery request on the basis of privilege, it must do more than
just assert that claim.
It must also “describe the nature of the
documents, communications, or things not produced or disclosed in
a manner that, without revealing information itself privileged or
Civil No. 15-1924 (FAB)
27
protected, will enable other parties to assess the applicability of
the privilege.”
Fed.R.Civ.P. 26(b)(5).
In general, the attorney-
client privilege attaches to documents where (1) legal advice is
sought from (2) a professional legal advisor in his capacity as
such, (3) the communications relating to that purpose (4) were made
in confidence (5) by the client, and thus (6) are at his instance
permanently protected (7) from disclosure by himself or the legal
advisor (8) except if the protection has been waived. Cavallaro v.
United States, 284 F.3d 236, 245 (1st Cir. 2002).
Here, PRHTA objects to the discovery of items 5, 12,
and 27 in its Revised List of Objections on grounds of attorneyclient privilege.
(Docket No. 65-11 at p. 3.)
PRHTA, however,
makes only a minimal effort to describe the nature of those
documents.
The Court is therefore unable to determine whether the
attorney-client privilege is properly invoked with respect to these
items.
Nevertheless, because those documents may in fact be
subject to the attorney privilege, the Court will allow PRHTA the
opportunity
to
come
forward
with
demonstrating its applicability here.
additional
information
Accordingly, it DENIES
TransCore’s motion to compel items 5, 12, and 27 and ORDERS PRHTA
to provide - no later than December 16, 2016 - the information
necessary to facilitate a proper determination by the Court.
No
Civil No. 15-1924 (FAB)
28
extensions will be allowed.
that
date
will
Failure to provide the information by
constitute
a
waiver
of
the
attorney-client
privilege.
ii.
Objections Based on Work-Product Privilege
The attorney work-product privilege, codified in
Fed. R. Civ. P. R. 26(b)(3), shields from disclosure materials
prepared by attorneys “in anticipation of litigation.”
See Maine
v. United States Dep’t of Interior, 298 F.3d 60, 66 (1st Cir. 2002)
“Materials
assembled
in
the
ordinary
course
of
business,
or
pursuant to public requirements unrelated to litigation, or for
nonlitigation purposes,” on the other hand, are not protected by
the work-product
doctrine.
United
States
v.
Textron
Inc.
&
Subsidiaries, 577 F.3d 21, 30 (1st Cir. 2009) (quoting Fed. R. Civ.
P. 26 advisory committee’s note (1970)).
Here, PRHTA contends that it should not be required
to disclose items 3, 4, 7, 14-16 and 25 in its Revised List of
Objections because they constitute attorney work-product.
No. 65-11 at p. 4-5.)
(Docket
PRHTA, however, does not provide any
information to establish that the documents requested were in fact
created specifically in anticipation of litigation.
The Court
therefore requires more detailed descriptions of the documents in
order to draw a conclusion as to the applicability of the work-
Civil No. 15-1924 (FAB)
product doctrine.
29
Accordingly, it DENIES TransCore’s motion to
compel items 3, 4, 7, 14-16 and 25, and ORDERS PRHTA to provide no later than December 16, 2016 - the information necessary to
facilitate a proper determination by the Court. No extensions will
be allowed.
Failure to provide the information by that date will
constitute a waiver of the attorney work-product privilege.
iii. Objections Based on Relevance
As discussed above, Rule 34 requires that objections
to requests for production be made with specificity.
This means
that the objecting party has a duty to substantiate its claim that
a certain discovery request lacks relevance.
See Sánchez-Medina
265 F.R.D. at 27.
Here, PRHTA refuses to produce items 22-24, 34, 3941 and 49 in its Revised List of Objections on relevance grounds.
(Docket No. 65-11 at p. 5-6.)
states
its
objection
without
Once again, however, PRHTA merely
providing
explanation to support its rationale.
any
information
or
Because PRHTA utterly fails
to substantiate its conclusion that the requested documents are
irrelevant to the dispute between the parties, the Court GRANTS
TransCore’s request to compel the production of documents listed in
items 22-24, 34, 39-41 and 49.
Civil No. 15-1924 (FAB)
II.
A.
30
PRHTA’S MOTION FOR A PROTECTIVE ORDER
Background
On April 5, 2016, TransCore served a notice of its intent,
pursuant
to
Federal
Rule
of
Civil
Procedure
30(b)(6)”), to take an oral deposition of PRHTA.
at p. 2.)
individuals
30(b)(6)
(“Rule
(Docket No. 90-1
The notice informed PRHTA of its duty to designate
who
could
represent
its
organization
for
that
deposition, and requested that PRHTA identify those individuals
seven days prior to the date of the deposition.
Id.
at p. 2-3.
On May 12, 2016, TransCore served an amended version of the
deposition notice to account for a scheduling change.
p. 13.
Id. at
On May 24, 2016, PRHTA responded that, in light of certain
“concerns,” it wished to “confer” with TransCore to discuss the
“topics and time periods” of the requested deposition.
No. 90-2 at p. 3.)
confer
to
deposition.
(Docket
On May 31, 2016, the parties held a meet-and-
discuss,
among
other
things,
the
Rule
30(b)(6)
During this conference, PRHTA voiced concerns about
the time period covered by the deposition, and about the existence
of
appropriate
witnesses.
(Docket
No.
90-3
at
p.
5-6.)
Specifically, PRHTA objected to the presentation of any witness
that did not have personal knowledge of the issues identified in
the deposition notice.
Id. at p. 6.
Civil No. 15-1924 (FAB)
31
On June 2, 2016, PRHTA provided - in response to an email from
TransCore memorializing the May 31, 2016 conference - a short list
of objections to the Rule 30(b)(6) deposition. (Docket No. 90-3 at
pp. 4-5.)
TransCore responded to this list by asserting that:
(1) PRHTA’s objections, having come almost two months after PRHTA
first learned of the deposition topics, were untimely and therefore
waived, (2) PRHTA’s “remarks” were “general and boilerplate” and
therefore were insufficient to satisfy PRHTA’s legal obligation to
state its objections with specificity, and (3) TransCore was
committed
to
exercising
its
deposition of a PRHTA designee.
right
to
take
Id. at p. 3.
a
Rule
30(b)(6)
During a June 6,
2016 teleconference, the parties agreed to schedule that deposition
for June 30, 2016, (Docket No. 90-4 at p. 3-4), and on June 13,
2016, TransCore served a second amended deposition notice to
reflect that agreed upon date, (Docket No. 90-1 at p. 23).
On June 15, 2016, PRHTA confirmed that the Rule 30(b)(6)
deposition would take place on June 30, 2016 and informed TransCore
that it had identified potential witnesses for the deposition.
(Docket No. 90-4 at pp. 2-3.) PRHTA also reiterated its objections
previously made on June 2, 2016 and asked TransCore to meet again
in order to reach an agreement regarding the discoverability of the
noticed deposition topics.
Id.
Civil No. 15-1924 (FAB)
Over
the next
two
32
days,
the
parties
met
at
TransCore’s
counsel’s office to conduct other depositions in connection with
this litigation.
(Docket No. 90 at p. 4.)
TransCore claims that
during these two days PRHTA never approached TransCore to discuss
any issues related to the upcoming Rule 30(b)(6) deposition.
Id.
On June 24, 2016, TransCore asked PRHTA to provide a list of
the designated individuals, and their areas of knowledge, who would
represent PRHTA at the Rule 30(b)(6) deposition.
at p. 4-5.)
(Docket No. 90-5
PRHTA apparently did not respond to this inquiry.
On
June 28, 2016, TransCore reiterated its request and asked PRHTA to
provide the information about the designated witnesses.
p. 4.
Id. at
On June 29, 2016 - one day before the agreed upon deposition
date - PRHTA notified TransCore that it would not attend the Rule
30(b)(6) deposition in light of TransCore’s “fail[ure] to even
consider a single objection to an evidently deficient notice.” Id.
at p. 2-3.
It also informed TransCore of its intention to “seek
judicial protection” from participation in the deposition.
Id. at
p. 3.
On
July
1,
2016,
TransCore
filed
an
informative
motion
notifying the Court of PRHTA’s non-compliance with the noticed
deposition.
(Docket No. 90.)
PRHTA responded by filing a motion
for a protective order on July 7, 2016.
(Docket No. 97.)
Civil No. 15-1924 (FAB)
B.
33
Discussion
PRHTA
seeks
a
protective
order
“relieving
[it]
from
(1) producing witnesses for the 30(b)(6) deposition notified by
Transcore, and (2) from producing any further copy of any document
to Transcore.”
(Docket No. 97 at p. 16.)
It argues that a
protective order is justified because TransCore’s deposition notice
“calls for clearly impertinent discovery and fails to . . .
‘describe
with
reasonable
particularity
the
examination,’” as required by the Federal Rules.
matters
for
See Id. at p. 1
(quoting Fed. R. Civ. P. 30(b)(6)).
TransCore opposes the motion for a protective order.
No. 99.)
(Docket
It argues, among other things, that its noticed Rule
30(b)(6) deposition was appropriate in scope and that PRHTA’s
objections to its chosen discovery method were insufficiently
specific.
See Id. at p. 17, 27.
TransCore also asserts that
PRHTA’s failure to appear at the Rule 30(b)(6) deposition was “a
serious breach of its discovery obligations” and that it “should be
severely sanctioned” for that inappropriate, defiant conduct.
Id.
at p. 8, 11.
1.
Protective Order Standard
Rule 26(c) of the Federal Rules of Civil Procedure grants
the Court the discretion to issue protective orders that limit the
Civil No. 15-1924 (FAB)
34
extent and manner of discovery, in order “to protect a party or
person from annoyance, embarrassment, oppression, or undue burden
or expense.”
Fed.R.Civ.P. 26(c)(1).
The Court, however, may only
issue such an order “for good cause.”
Id.
Thus, the party seeking
a protective order bears the burden of establishing good cause and
a specific need for protection.
See Pub. Citizen v. Liggett Grp.,
Inc., 858 F.2d 775, 779 (1st Cir. 1988) (citations omitted).
“A
finding of good cause must be based on a particular factual
demonstration of potential harm, not on conclusory statements.”
Anderson v. Cyovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986); see also
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3rd Cir. 1994)
(“Broad allegations of harm, unsubstantiated by specific examples
or articulated reasoning, do not support a good cause showing.”)
(citations and
quotation marks omitted).
“Because of its nature, the deposition process provides a
means to obtain more complete information and is, therefore,
favored.”
Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121,
126 (M.D.N.C. 1989).
Thus, “for ordinary discovery, protective
orders totally prohibiting a deposition are rarely granted absent
extraordinary circumstances.”
BB & T Corp. v. United States, 233
F.R.D. 447, 448 (M.D.N.C. 2006); see also Prozina Shipping Co. v.
Thirty-Four
Automobiles,
179
F.R.D.
41,
48
(D.
Mass.
1998)
Civil No. 15-1924 (FAB)
35
(“Prohibiting the taking of depositions is an extraordinary measure
. . . [and] [t]he moving party has a heavy burden of showing
extraordinary circumstances based on specific facts that would
justify such an order.”) (internal quotations omitted); Bucher v.
Richardson Hospital Authority, 160 F.R.D. 88, 92 (N.D.Tex. 1994)
(“Protective orders prohibiting depositions are rarely granted,”
and then only if movant shows a “particular and compelling need”
for such an order); Motsinger v. Flynt, 119 F.R.D. 373, 378
(M.D.N.C.
1988) (“Absent
a
strong
showing
of
good
cause
and
extraordinary circumstances, a court should not prohibit altogether
the taking of a deposition.”)
2.
A Protective Order Completely Shielding PRHTA from
TransCore’s Rule 30(b)(6) Deposition is Unwarranted
Rule 30(b)(6) allows a party to notice the deposition of
an organization.
In so doing, the party need only “describe with
reasonable particularity the matters for examination.”
Civ. P. 30(b)(6).
Fed. R.
The named organization is then required to
designate one or more representatives to testify as to the areas
specified.
Id.
While the representatives need not have personal
knowledge of those areas, the organization has an obligation to
“prepare them so that they may give complete, knowledgeable and
Civil No. 15-1924 (FAB)
36
binding answers on behalf of the [organization].”
Marker, 125
F.R.D. at 126.
Here, TransCore has made a proper demand for a Rule
30(b)(6)
deposition.
In
essence,
TransCore
is
looking
for
information regarding “the extent of the mutual obligations between
the parties, and their respective performance, as to [the disputed
contract].”
See Docket No. 99 at p. 12.
It specifically seeks
details from PRHTA regarding the portions of the contract that
PRHTA believes definitively establish its ownership of the CSC
equipment.
Id.
Because it allegedly was unable to obtain that
information from PRHTA’s specified fact witnesses, see id. at
pp. 12-17, TransCore concluded that a Rule 30(b)(6) deposition
would be a
useful tool to gather the desired evidence.
It
therefore served a notice of its intent to utilize that discovery
method as early as April 5, 2016.
substantively
the
same
across
In that notice - which remained
several
iterations
-
TransCore
designates 43 specific topics for examination. See Docket No. 90-1
at pp. 6-11.
Although these topics are admittedly overbroad at
times, the overwhelming majority of them are arguably relevant to
TransCore’s claims and are sufficiently clear to allow PRHTA to
determine which individuals are best suited to testify on its
behalf.
Accordingly, the Court finds that, in drafting its Rule
Civil No. 15-1924 (FAB)
37
30(b)(6) deposition notice, TransCore effectively satisfied its
singular obligation to identify the topics of examination with
“reasonable particularity.”
See Mitsui & Co. (U.S.A.) v. P.R.
Water Res. Auth., 93 F.R.D. 62, 66 (D.P.R. 1981) (Perez-Gimenez,
J.) (finding that Rule 30(b)(6) notices comply with the “reasonable
particularity” requirement when they “are sufficient to inform [the
noticed organization] of the matters which will be inquired into at
the depositions so that [it] can determine the identity and number
of persons whose presence will be necessary to provide an adequate
response to any of [the opponent’s] potential questions.”)
More important than the propriety of TransCore’s demand
for a Rule 30(b)(6) deposition, however, is PRHTA’s failure to
demonstrate the requisite “good cause” for exempting it from that
discovery.
short
list
In its June 2, 2016 correspondence, PRHTA outlined a
of
concerns
that
it
harbored
about
the
noticed
deposition and the scope of its designated topics. These “remarks”
tersely stated that certain topics were “irrelevant,” that some
“[had] not been specified with reasonable particularity,” and that
still others were “unreasonably burdensome.”
at p. 5.
See Docket No. 90-3
The Court agrees with TransCore that these “boilerplate”
objections are woefully insufficient, see Walker 186 F.R.D. at 587,
and
do
not
evince
the
type
of
“extraordinary
circumstances”
Civil No. 15-1924 (FAB)
required
to
issue
a
38
protective
order
insulating
PRHTA
from
participation in a Rule 30 deposition.2
Because TransCore’s noticed deposition was appropriate,
and because PRHTA has failed to demonstrate the level of “good
cause” necessary to grant a protective order shielding it from that
discovery,
2
PRHTA’s
motion
requesting
that
specific
relief
is
PRHTA also objects to the Rule 30(b)(6) deposition on the grounds
that certain noticed topics “may be tended through stipulations or
written requests.” (Docket No. 90-3 at p. 5.) This objection,
however, is without merit and can be dismissed out of hand. It is
not for PRHTA to decide which tools TransCore should or should not
utilize in conducting its own discovery. See e.g., BB & T Corp. v.
U.S., 233 F.R.D. 447, 448 (M.D.N.C. 2006) (“The Federal Rules of
Civil Procedure favor unhampered discovery and, normally, the
choice of discovery methods should be left to the parties.”)
Moreover, courts are generally unwilling to interfere with a
party’s decision to conduct a Rule 30(b)(6) deposition, even when
other, more efficient, discovery options might be available. See,
e.g., U.S. E.E.O.C. v. Caesars Entm’t, Inc., 237 F.R.D. 428, 433-35
(D. Nev. 2006) (noting that the use of Rule 30(b)(6) depositions is
“not novel,” and that - absent a strong showing of burdensomeness it is inappropriate to deny a party its choice of discovery methods
by, for example, requiring it to use interrogatories in lieu of a
Rule 30(b)(6) deposition.); Dongguk Univ. v. Yale Univ., 270 F.R.D.
70, 74 (D. Conn. 2010) (remarking that a party should not be
prevented from conducting a Rule 30(b)(6) deposition “just because
the topics proposed are similar to those contained in documents
provided or interrogatory questions answered.”); Marker, 125 F.R.D.
at 126 (noting that the Federal Rules of Civil Procedure do not
permit a party served with a Rule 30(b)(6) deposition notice “to
elect to supply the answers in a written response to an
interrogatory.”) Thus, the fact that alternative methods of
discovery could theoretically be employed by TransCore to gather
the information it seeks does not, by itself, establish “good
cause” to protect PRHTA from participation in the Rule 30(b)(6)
deposition.
Civil No. 15-1924 (FAB)
DENIED.
39
The Court ORDERS PRHTA to comply with its discovery
obligations by producing the appropriate witnesses who - after
being adequately prepared by the organization - are capable of
giving meaningful, informative and complete responses to the topics
listed in TransCore’s deposition notice.
3.
A Blanket Protective Order Shielding PRHTA from any
Further Requests for Production is Also Inappropriate
PRHTA also seeks a protective order “forbidding the
production of any further document by PRHTA to Transcore.” (Docket
No. 97 at p. 16.)
PRHTA appears, in other words, to be asking the
Court to grant it a blanket release from its discovery obligations
arising from TransCore’s requests for production.
In support of
this request, PRHTA reiterates its general, overarching objection
that, because there is “no issue of contractual ambiguity” in the
litigation
discovery
between
of
the
parties,
“anything
but
duly
there
is simply
executed
no
need for
contractual
evidence that is already available to both parties.
Id.
text,”
at p. 5.
This argument, however, is unavailing and does not establish the
type of “good cause” needed to grant PRHTA’s requested relief.
First of all, the Court has yet to determine whether the disputed
contract
between
the
parties
is
indeed
unambiguous.
It
is
therefore premature for PRHTA to affirm confidently that any and
Civil No. 15-1924 (FAB)
40
all information produced through discovery will be inadmissible
here.
Second, and as discussed above, Rule 26 does not require
that relevant information be admissible to be discoverable.
Thus,
although the extrinsic evidence sought by TransCore may ultimately
be unnecessary and inadmissible in the resolution of this case,
that
fact
does
not
prevent
TransCore
from
obtaining
that
information now through the discovery process.
Because PRHTA has a continuing obligation to cooperate in
discovery that falls within the boundaries established by Rule 26,
its motion for a blanket protective order shielding it from all
further requests for production is DENIED.
4.
PRHTA Should be Sanctioned for Deliberately Abandoning
the Scheduled 30(b)(6) Deposition
Having
determined
that
PRHTA
is
not
entitled
to
a
protective order pursuant to Rule 26(c), the Court must now decide
whether PRHTA should be sanctioned for its failure to appear at the
Rule 30(b)(6) deposition that had been scheduled for June 30, 2016.
The Court holds that it should.
Federal
Rule
of
Civil
Procedure
37(d)(“Rule
37(d)”)
provides that a court has the power to order sanctions when “a
party . . . or a person designated under Rule 30(b)(6) . . . fails,
after being served with proper notice, to appear for that person’s
Civil No. 15-1924 (FAB)
deposition.”
41
Fed. R. Civ. P. 37(d)(1)(A)(i).
Pursuant to this
rule, a court may award a variety of sanctions but “must” require
the
noncompliant
party,
its
attorney,
or
both
“to
pay
the
reasonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.”
37(d)(3).
is
not
Fed. R. Civ. P.
Furthermore, “[a] failure described in Rule 37(d)(1)(A)
excused
on
the
ground
that
the
discovery
sought
was
objectionable, unless the party failing to act has a pending motion
for a protective order under Rule 26(c).”
37(d)(2).
Fed. R. Civ. P.
Thus, where a party objects to attending a properly
noticed Rule 30(b)(6) deposition, it must seek judicial protection
from participation in advance of the date set for the discovery.
See Mitsui & Co., Inc., 93 F.R.D. at 67.
Here, there is no doubt that PRHTA’s conduct falls within
the purview of Rule 37(d).
As early as April 5, 2016, PRHTA had
notice of TransCore’s intent to conduct a Rule 30(b)(6) deposition.
(Docket No. 90-1 at p. 11.)
During a June 6, 2016 teleconference,
it agreed that June 30, 2016 would be an acceptable date for that
deposition.
(Docket No. 90-4 at p. 3-4.)
On June 15, 2016 it not
only confirmed that date but also informed TransCore that it had
identified potential witnesses for the deposition.
Despite this
Civil No. 15-1924 (FAB)
42
early notice and confirmatory correspondence with TransCore, PRHTA
simply
and
deposition.
suddenly
decided
not
to
appear
at
the
scheduled
Although PRHTA emphasized that its non-appearance was
grounded in certain objections to the discoverability of the
noticed topics, it did not bother to seek a protective order on the
basis of those objections until July 7, 2016 - a full week after
the deposition date had passed.
In light of that - unnecessary -
delay in seeking judicial protection, PRHTA’s stated objections
cannot, pursuant to Rule 37(d)(2), justify its actions here.
Because
PRHTA’s
uncooperative
conduct
triggers
the
proscriptions of Rule 37, sanctions are appropriately imposed.
Accordingly, the Court ORDERS PRHTA to pay all reasonable expenses,
including attorneys fees, incurred by TransCore in connection with
the failed June 30, 2016 deposition.
PRHTA is warned that, should
it repeat its recalcitrant behavior at a future Rule 30(b)(6)
deposition, the sanctions imposed against it by the Court will be
much more severe in nature.
III.
MOTIONS FOR MODIFICATION OF DISCOVERY SCHEDULE
Federal
Rule
of
Civil
Procedure
16(b)
states
that
“[a]
schedule may be modified only for good cause and with the judge’s
consent.”
Fed. R. Civ. P. 16(b)(4).
Here, both parties have filed
for extensions of the discovery period in order to comply with
Civil No. 15-1924 (FAB)
43
discovery requests that are still pending.
(Docket Nos. 112-115.)
In light of this mutual interest in lengthening the discovery
period
-
and
taking
into
consideration
the
new
discovery
obligations generated by this opinion - the Court finds that there
is
good
cause
to
modify
the
discovery
schedule.
The
Court
therefore GRANTS the parties’ requests and EXTENDS the discovery
period until February 28, 2017.
No additional extensions will be
allowed.
IV.
CONCLUSION
For the reasons discussed above, the Court GRANTS in part and
DENIES in part TransCore’s motion to compel discovery, (Docket
No. 65), and DENIES PRHTA’s motion for a protective order, (Docket
No. 97).
1.
The Court ORDERS PRHTA to:
Properly respond to TransCore’s Interrogatories 3, 4, 6,
8, 9, 11, 12, 14, 15, 17-21 and 24.
2.
Provide proper responses to items 1, 6, 9, 10, 12-19 and
29 contained in TransCore’s “First Request for Production of
Documents.”
3.
Disclose documents 22-24, 34, 39-41 and 49 from its
“Revised List of Objections.”
4.
Provide - no later than December 16, 2016 - additional
information so that the Court can make a proper determination as to
Civil No. 15-1924 (FAB)
44
whether the attorney-client privilege applies to items 5, 12, and
27 from PRHTA’s “Revised List of Objections.”
5.
Provide - no later than December 16, 2016 - additional
information so that the Court can make a proper determination as to
whether the work-product privilege applies to items 3, 4, 7, 14-16
and 25 from PRHTA’s “Revised List of Objections.”
6.
Produce - and prepare, as necessary - representatives to
testify on behalf of PRHTA in a future Rule 30(b)(6) deposition.
7.
Pay TransCore the costs, fees and expenses it incurred as
a result of the failed Rule 30(b)(6) deposition.
TransCore SHALL
submit a memorandum of these costs no later than December 16, 2016.
The Court ORDERS PRHTA to comply with this order (except for
items 4 and 5, which have their own due date) by January 31, 2017
or be subject to the sanctions available to the Court pursuant to
Federal Rule of Civil Procedure 37(b)(2)(A)(i)-(vii), including
waiver of any privilege and the striking of its answer and an entry
of default against PRHTA.
The Court also EXTENDS the discovery period until February 28,
2017.
Finally, the parties SHALL meet and provide for the Court’s
consideration a proposed schedule leading up to and including a
trial date.
The date to file the proposed pretrial order, the date
Civil No. 15-1924 (FAB)
45
when the pretrial conference is scheduled and the trial date are
set aside.
IT IS SO ORDERED.
San Juan, Puerto Rico, December 2, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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