Machinery Solutions, Inc. v. Doosan Corporation et al
ORDER granting in part and denying in part 69 Motion to Compel. Signed by Honorable J Michelle Childs on 3/30/2017.(asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Machinery Solutions, Inc.,
Doosan Infracore America Corporation
and Ellison Technologies, Inc.,
Civil Action No. 3:15-cv-03447-JMC
This matter is before the court on Plaintiff Machinery Solutions, Inc.’s (“MSI”) motion to
compel discovery. (ECF No. 69.)
FACTUAL AND PROCEDURAL BACKGROUND
On May 13, 2016, MSI served Defendants Doosan Infracore America Corporation
(“Doosan”) and Ellison Technologies, Inc. (“Ellison”), (collectively, “Defendants”) with
requests for production pursuant to Federal Rule of Civil Procedure 34. On June 27, 2016,
Defendants each responded to MSI’s requests for production. (ECF Nos. 69-1, 69-2.) MSI
asserts that Defendant Doosan “responded with 6 general objections which were to be
incorporated into each response and 75 additional objections to the 30 requests spelled out in the
[MSI]’s requests,” in addition to a general objection for attorney-client and work-product
privileges for all requests. (ECF No. 69 at 1-2.) Defendant Ellison responded similarly with 4
general objections applicable to each response and 32 specific objections. (ECF No. 69-2.)
As of the filing of MSI’s motion, although both Defendants indicated that they would
continue to supplement their responses, neither Defendant had produced a privilege log, which
has frustrated MSI as it has no way of determining whether Defendants’ responses are adequate.
(ECF No. 69 at 2-3.) MSI also seeks information related to contracts (including drafts and
correspondence) between Defendants, public announcements about the joint venture between
Defendants, communications between Defendants or their parent or sister companies regarding
altering the distribution system or dealers, communications between Defendants or related
parties regarding the purchase of inventory or ownership interest with existing Doosan dealers,
investment of funds, documents supporting statements in Doosan’s opposition to MSI’s motion
for temporary injunction, records related to the education or training of Ellison employees related
to Doosan products, personnel files of certain Doosan employees, etc. (Id. at 4-11.)
Generally, Defendants respond that MSI failed to consult appropriately before filing the
motion or at least as to whether the documents produced after the motion was filed address
MSI’s concerns, that MSI’s discovery responses are lacking, and that MSI’s requests are overly
broad and not proportional to discovery. (ECF Nos. 70 at 1-2, 71 at 1-2.) Defendant Doosan
further asserts both Defendants produced over 9,000 documents to MSI, which were beyond the
scope of the initial objections by the parties. (ECF No. 71 at 4.) MSI filed a reply addressing the
relevance and proportionality factors for the specific document requests at issue. (ECF No. 73.)
Amended Rule 26 of the Federal Rules of Civil Procedure provides 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 considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.
26(b)(1). Furthermore, “information within this scope of discovery need not be admissible in
evidence to be discoverable.” Id.
Under Rule 26(b)(5), a party desiring to withhold “information otherwise discoverable”
on the basis that the information “is privileged or subject to protection as trial-preparation
material” must provide an index of the withheld documents. Fed. R. Civ. P. 26(b)(5). “To
comply with the requirements set forth in Rule 26(b)(5)(A), a party seeking protection from
producing documents must produce a privilege log that ‘identifies each document withheld,
information regarding the nature of the privilege/protection claimed, the name of the person
making/receiving the communication, the date and place of the communication, and the
document’s general subject matter.’” AVX Corp. v. Horry Land Co., Inc., C/A No. 4:07-cv3299-TLW-TER, 2010 WL 4884903, at *3 (D.S.C. Nov. 24, 2010) (quoting Victor Stanley, Inc.
v. Creative Pipe, Inc., 250 F.R.D. 251, 264 (D. Md. 2008)).
In the instant case, Defendants made a general objection to MSI’s requests on either the
basis of attorney-client or work-product privilege. (See ECF Nos. 69-1, 69-2, 70 & 71.) To the
extent that Defendants have objected on these bases, Defendants are required to produce an
appropriate privilege log. See Fed. R. Civ. P. 26(b)(5). As to MSI’s other concerns regarding
Defendants’ failure to provide adequate responses, given that Defendants produced documents
after the filing of MSI’s motion (ECF No. 69), the court directs MSI to review those documents
and determine whether Defendants have responded adequately to MSI’s discovery requests. The
court further notes that it has set a hearing for April 11, 2017 at 2:00 p.m. for all pending motions
not yet ruled on at the time of the hearing.
In light of the foregoing, the court GRANTS Plaintiff MSI’s motion to compel (ECF No.
69) insofar as it requests Defendants to provide a privilege log and adequate responses to
discovery requests, but DENIES the motion without prejudice insofar as Defendants have
produced adequate discovery responses to any of MSI’s requests. Defendants are ordered to
produce an appropriate privilege log for the documents requested in MSI’s motion to compel
(ECF No. 69) and ORDERS Defendants to produce a privilege log on or before April 7, 2017.
MSI is ordered to provide a letter to the court by April 10, 2017, at 12:00 p.m. identifying any
outstanding concerns about Defendants’ document production related to ECF No. 69, which will
be addressed at the hearing on April 18, 2017. The court will rely upon the arguments the
parties have previously set forth in their motion and responses, and any arguments made
in oral argument.
IT IS SO ORDERED.
United States District Judge
March 30, 2017
Columbia, South Carolina
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