Lindholm et al v. BMW of North America, LLC

Filing 37

Opinion and Order granting in part and denying in part 17 Motion to Compel. Signed by U.S. District Judge Roberto A. Lange on 2/5/2016. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

BRUCE LINDHOLM, individually and as
personal representative of the ESTATE OF
ALEXANDER NELS LINDHOLM, and
VANOOSHEH LINDHOLM, individually,

FILED
FEB 0 5 2016

~~

3:15-CV-03003-RAL

Plaintiffs,

OPINION AND ORDER GRANTING IN
PART AND DENYING IN PART
PLAINTIFF'S MOTION TO COMPEL
DISCOVERY

vs.
BMW OF NORTH AMERICA, LLC,
Defendant.

I. INTRODUCTION

Bruce Lindholm, individually and as personal representative of the Estate of Alexander
Nels Lindholm, and Vanoosheh Lindholm (collectively "Plaintiffs") filed a Motion to Compel
Discovery and for an Award of Attorney's Fees and Costs, Doc. 17, along with certification of
good faith affidavits from counsel, Docs. 19, 20, in compliance with Federal Rule of Civil
Procedure 37(a) and D.S.D. Civ. LR 37.l. Plaintiffs move for an order compelling BMW of
North America, LLC ("Defendant") to respond to certain of Plaintiffs' requests for production of
documents and interrogatories and to make additional initial disclosures. Plaintiffs also move for
an order under Rule 37(a)(5) awarding Plaintiffs attorney's fees.
below, Plaintiffs' motion is granted in part and denied in part.

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For the reasons explained

II. FACTS PERTINENT TO MOTION
This products liability and wrongful death action centers on an incident that occurred on
July 5, 2013. Docs. 1, 1-1, 1-2. According to Plaintiffs' complaint, Alexander N. Lindholm
("Alex") performed maintenance work on his 1997 BMW 540i in Pierre, South Dakota, and
utilized the car's jack according to the car manual's directed use to elevate the vehicle. Doc. 1-1
at 2. Plaintiffs allege that, while Alex was under the vehicle, the jack "functionally failed and a
plastic piece of the jack fractured, causing the vehicle to fall and crush Alex." Doc. 1-1 at 2.
Plaintiffs allege that "Alex subsequently died from asphyxia due to the weight of the vehicle
crushing his chest." Doc. 1-1 at 2.
Both parties exchanged initial disclosures, Docs. 18-3, 18-4, and Plaintiffs served
Defendant with interrogatories and requests for production of documents on June 29, 2015, Doc.
18-5. Several of Plaintiffs' interrogatories-numbered 4, 5, 6, 7, 8, 9, 10, 11, 14, and 15sought information about the alleged defective design of the jack and subject vehicle. Doc. 18-5
at 7-10. In addition, Plaintiffs sought to discover various documents relevant to the allegations
in their Complaint. Doc. 18-5 at 11-18. Defendant objected to certain discovery requests
claiming that the information requested is not in its possession or control. Doc. 18-6 at 6-10.
Defendant made stock and repeated objections that the requests are vague, overbroad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Doc.
18-6 at 6-10. Plaintiffs argue that the requests are tailored to specific and relevant information at
issue in the case, are not unduly burdensome, and may be obtained through Defendant's regular
course of business as a distributor of BMW vehicles in the United States. Doc. 18 at 9; Doc. 26
at 3.

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III. APPLICABLE STANDARDS OF DISCOVERY
The Federal Rules of Civil Procedure concerning discovery "are to be broadly and
liberally construed in order to fulfill discovery's purposes of providing both parties with
'information essential to the proper litigation of all relevant facts, to eliminate surprise, and to
promote settlement."' Marook v. State Farm Mut. Auto. Ins., 259 F.R.D. 388, 394 (N.D. Iowa
2009) (quoting Rolscreen Co. v. Pella Prods., 145 F.R.D. 92, 94 (S.D. Iowa 1992)). Thus, a
party generally may obtain discovery regarding any nonprivileged matter that is relevant to any
claim or defense. See Fed. R. Civ. P. 26(b)(l). The scope of permissible discovery is broader
than the scope of admissibility. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
Nonetheless, there must be at least a "threshold showing of relevance" before parties "are
required to open wide the doors of discovery," and discovery must be proportional to the needs
of the case. Id.; see Fed. R. Civ. P. 26(b)(l). Once the requesting party has made its threshold
showing that the evidence sought is relevant, the burden shifts to the resisting party who must
"show specific facts demonstrating that the discovery is not relevant, or how it is overly broad,
burdensome, or oppressive." Kirschenman v. Auto-Owners Ins., 280 F.R.D. 474, 481 (D.S.D.
2012). The mere statement that an interrogatory or request for production was overly broad,
burdensome, oppressive, or irrelevant is not adequate to prevail on such an objection. Lillibridge
v. Nautilus Ins. Co., No. CIV. 10-4105-KES, 2013 WL 1896825, at *5 (D.S.D. May 3, 2013).
The party alleging undue burden must demonstrate that the burden of producing the requested
information would outweigh its beneficial value. St. Paul Reinsurance Co. v. Commercial Fin.
Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).

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IV. DISCUSSION
A. Preliminary Issues
Rule 37 of the Federal Rules of Civil Procedure governs the issuance of an order
compelling discovery. Fed. R. Civ. P. 37. Under Rule 37 and Local Rule 37.1 of the Civil Local
Rules of Practice for the United States District Court of the District of South Dakota, Plaintiffs'
counsel certified that they contacted Defendant's counsel prior to filing the instant motion to
compel and attempted in good faith to resolve the parties' discovery disputes. Docs. 19, 20.
Defendant does not dispute this, but responded that it did not have control over the requested
material. Thus, the requirements of Rule 37 and Local Rule 37.1 have been met with respect to
the good faith effort to resolve the dispute prior to the filing of the motion. See Robinson v.
Potter, 453 F.3d 990, 995 (8th Cir. 2006).
Defendant filed two response briefs to Plaintiffs' motion; the first response brief was
filed on December 7, 2015, and the second, supplemental brief was filed on December 11, 2015.
Docs. 22, 25. Plaintiffs urge this Court to disregard Defendant's second brief in its entirety
because it was filed after the time limits proscribed in Civil Local Rule 7.1 (b) for a response
brief. Doc. 26 at 1-2. Defendant filed the second brief after Plaintiffs deposed Peter Baur
("Baur"), Defendant's Manager of Product Analysis, on December 4, 2015.

Doc. 25 at 1.

Defendant filed the second brief believing Baur's testimony to be relevant to its opposition to the
motion, "but his deposition transcript was not available at the time that [Defendant] filed its
[first] Response." Doc. 25 at 1 n.l. Indeed, Baur was deposed just three days before Defendant
filed its initial response brief. Under these circumstances, this Court would have granted leave
for Defendants to enlarge its deadline to respond or to supplement its response brief. Moreover,
there is no prejudice to Plaintiffs from the second brief in that Plaintiffs filed a reply brief on

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December 18, 2015, after the second response brief, and highlighted portions of Baur's
deposition different from those portions used in Defendant's second brief. Doc. 25 at 2-5; Doc.
26 at 4-5. Thus, this Court will consider Defendant's second, supplemental brief in ruling on
this motion.
B. Analysis of the Requests for Production of Documents at Issue
Under Rule 34 of the Federal Rules of Civil Procedure, a party may request that another
party produce documents for inspection and copying. Fed. R. Civ. P. 34(a). If the responding
party "fails to produce documents or fails to respond that inspection will be permitted--0r fails
to permit inspection-as requested" the requesting party may move a court for an "order
compelling an answer, designation, production, or inspection." Fed. R. Civ. P. 37(a)(3)(B)(iv).
"[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4).
Rule 34 applies to such documents "in the responding party's possession, custody, or
control." Fed. R. Civ. P. 34(a)(l). "[C]ontrol is defined as the legal right, authority, or ability to
obtain upon demand documents in the possession of another." In re Hallmark Capital Corp., 534
F. Supp. 2d 981, 982 (D. Minn. 2008) (internal quotation marks and quotation omitted); see also
Hill v. Auto Owners Ins. Co., No. 5:14-CV-05037-KES, 2015 WL 1280016, at *7 (D.S.D. Mar.
20, 2015) ("The rule that has developed is that if a party 'has the legal right to obtain the
document,' then the document is within that party's 'control' and, thus, subject to production
under Rule 34." (quotation omitted)); 8B Charles A. Wright et al., Federal Practice & Procedure

§ 2210 n.4-5 (3d ed. 2010) (collecting cases defining control). A party does not need to have
legal ownership or actual possession of documents to be required to produce them under Rule 34.
See, e.g., Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007) (stating

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that the question is whether the litigant has "access and the practical ability to possess
documents"); New York ex rel. Boardman v. Nat'l R.R. Passenger Corp., 233 F.R.D. 259, 267
n.9 (N.D.N.Y. 2006) ("A party may be required to produce documents even if it only controls the
persons who are able to obtain the documents."); Bifferato v. States Marine Corp. of Del., 11
F.R.D. 44, 46 (S.D.N.Y. 1951) (noting that "[t]he true test is control and not possession"). "The
party seeking the production of documents bears the burden of proving that the opposing party
has the control required under Rule 34." Kickapoo Tribe of Indians of Kickapoo Reservation in
Kansas v. Nemaha Brown Watershed Joint Dist. No. 7, 294 F.R.D. 610, 613-14 (D. Kan. 2013);
see also Myers v. Blumenthal, No. 8:14CV57, 2014 WL 4264788, at *6 (D. Neb. Aug. 28, 2014)
(same); Wright, supra,§ 2210 (same).
Defendant argues that the information requested by Plaintiffs is not in its possession or
control because it is the importer, distributor, and marketer of certain BMW products within the
United States and does not design, test, or manufacture vehicles or vehicle components. Doc. 22
at 2. Apparently Bayerische Motoren Werke AG ("BMW AG"), a European entity organized
under the laws of the Federal Republic of Germany, manufactured the vehicle, and Storz
Company ("Storz"), another non-party, manufactured the jack.

Doc. 22 at 2.

Defendant

contends that it does not have the legal right to obtain information or documents from BMW AG
because Defendant is an indirect subsidiary 1 that is a separate legal entity from BMW AG.
Doc. 22 at 2-3, 6. Additionally, Defendant is not owned by BMW AG, is not BMW AG's agent,
has separate officers and directors from BMW AG, and the information sought would not be
available in its regular course of business as an affiliate who distributes vehicles in the United
States. Doc. 22 at 7-14. Defendant presented excerpts of a deposition from Baur, where Baur
1

The record lacks information on just how Defendant is "an indirect subsidiary" and what the
precise relationship is between Defendant and BMW AG.
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testified that if the information sought was requested, there is no requirement that BMW AG
would have to disclose that information; if BMW AG did disclose information, Baur testified
that it would be because BMW AG decided on its own to honor the request. Doc. 25 at 4-5.
Plaintiff counters that Defendant should be compelled to respond to discovery and make
the requested disclosures because the information may be obtained through Defendant's regular
course of business with BMW AG. Doc. 26 at 3--6. Plaintiff highlighted different portions of
Baur's deposition where Baur testified that he telephones or emails various individuals at BMW
AG on a daily basis; has had contact with at least one individual, Christian Dallmayr, an engineer
in the product analysis department in Munich, about the instant case; and has received scanned
documents from BMW AG in the past which may have included engineering plans of vehicles or
vehicle parts if approved by BMW AG's legal department. Doc. 26 at 4-6. Plaintiff argues that
this testimony illustrates that it would not be unduly burdensome for Defendant to ask for or
receive the requested information because Defendant has contact with BMW AG as part of its
regular course of business. Doc. 26 at 6. "Whether or not a request is 'approved' by BMW
AG's legal department," Plaintiffs contend "is an issue that may leave [Defendant] with limited
options as far as certain defenses" but does not overcome the broad scope of discovery and
relevancy of the information requested. Doc. 26 at 6.
This case presents the not-entirely unfamiliar situation where a corporate defendant is
related to another corporate non-party and it is the non-party who has possession of the materials
requested in discovery. Because the facts of each such case vary greatly, courts in determining
whether the party from whom the documents are sought has sufficient control over the non-party
consider several factors, "including the corporate structures of the entities involved and the
financial relationship between them, the overlap of directors and officers, the non-party's

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connection to the transaction at issue, the issue of whether the non-party will receive the benefit
of a favorable litigation outcome, and the ability of the party from whom documents are sought
to obtain the documents upon demand." Playboy Entm't Grp., Inc. v. United States, No. CIV. A.
96-94-JJF, 1997 WL 873550, at *3 (D. Del. Dec. 11, 1997); see also Glaxo, Inc. v. Boehringer
Ingelheim Corp., No. 3:95-CV-01342 (GLG), 1996 WL 710836, *3 (D. Conn. Oct. 7, 1996)
(noting that control is found between sister corporations if one is the alter ego of the other);
Camden Iron & Metal, Inc. v. Marubeni Am. Corp., 138 F.R.D. 438, 443-444 (D.N.J. 1991)
(listing "access to documents when the need arises in the ordinary course of business" as factor
to determine control (quotation omitted)). In United States International Trade Commission v.
ASAT, Inc., the United States Court of Appeals for the District of Columbia Circuit
acknowledged that it would be "impracticable" to hold that "all wholly owned subsidiaries
engaged in sales and servicing" were "controlling their parent company's documents." 411 F.3d
245, 255 (D.C. Cir. 2005). Rather, "there must be a nexus between the [documents sought] and
[the party's] relationship with its parent companies, taking into account, among other things, [the
party's] business responsibilities." Id.; see also Gerling Int'l Ins. Co. v. Comm'r of Internal
Revenue, 839 F.2d 131, 140 (3d Cir. 1988) (collecting cases that found sufficient control even
where corporate entities are separate if the parent company has the power to elect a majority of
the board of directors for the subsidiary).
Here, Plaintiffs have not met their burden of demonstrating that Defendant has sufficient
control to require BMW AG to comply with Plaintiffs' document requests. See Kickapoo Tribe
of Indians of Kickapoo Reservation in Kansas, 294 F.R.D. at 613-14 (requesting party has
burden to show that opposing party has "control" of documents for purposes of production under
Rule 34). In this case, Defendant is a legal entity separate from and not owned by BMW AG.

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There is no agency relationship between Defendant and BMW AG, each has its own separate
officers and directors, and there is no obligation on BMW AG to supply documents upon request
from Defendant. See Power Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc., 233 F.R.D.
143, 145-46 (D. Del. 2005) (concluding subsidiary was not obligated to obtain documents from
foreign parent, notwithstanding vendor relationship between the two, because entities were
separate and information was not utilized in the normal course of business).
Some cases have found that certain subsidiaries have adequate control of the parent's
documents under Rule 34 where the subsidiary serves as a marketer, distributor, or servicer of
the parent's product.

See, e.g., Choice-Intersil Microsystems, Inc. v. Agere Sys., Inc., 224

F.R.D. 471, 472-73 (N.D. Cal. 2004); Afros S.P.A. v. Krauss-Maffei Corp., 113 F.R.D. 127,
129-32 (D. Del. 1986); Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 919-20
(S.D.N.Y. 1984). Those cases are factually distinguishable, however, because those subsidiaries
had a closer connection to its parent corporation than Plaintiff has shown Defendant to have with
BMW AG. See Choice-Intersil Microsystems, Inc. 224 F.R.D. at 472-73 (finding subsidiary had
access and control over documents possessed by German corporate office because subsidiary
was wholly owned by corporate office, variety of documents were shared in mutual databases,
and subsidiary was able to retrieve important documents from corporate parent); Afros S.P.A.,
113 F.R.D. at 129-32 (finding relationship between subsidiary, who is exclusive seller for
parent, and parent "very close" because subsidiary was wholly owned by parent, parent's board
had substantial oversight, key decisions rested with parent, and documents were previously
provided and within subsidiaries reach); Cooper Indus., Inc., 102 F.R.D. at 919-20 (finding
documents, including service manuals and blueprints, in possession of British manufacturer were
in defendant's custody because defendant was the United States distributor for the manufacturer,

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defendant represented itself as manufacturer's affiliate, requested documents were available in
ordinary course of business because requested documents related to products that defendant
works with every day, and when plaintiff attempted to obtain documents from manufacturer
defendant told plaintiff that all requests should go through defendant first).
Plaintiffs argue that Baur' s testimony proves that Defendant has access to the requested
materials in its regular course of business as set forth by Glenz v. Sharp Electronic Corp., No.
08-3652 (FSH)(MAS), 2010 WL 2758729 (D.N.J. July 12, 2010). Although Baur's testimony
establishes that Defendant could ask for and possibly receive engineering plans, thus showing
disclosure is not "inconceivable" under Glenz, the fact remains that BMW AG is not required to
disclose that information. Id. at *3. A mere possibility that a request may be complied with does
not equate to control under Rule 34. Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1426
(7th Cir. 1993) ("[T]he fact that a party could obtain a document if it tried hard enough ... does
not mean that the document is in its possession, custody, or control; in fact it means the
opposite."); Wright, supra, § 2210 ("[C]ourts should be alert to the possibility that despite goodfaith efforts parties may prove unable to obtain materials from nonparties."); cf. Camden Iron &
Metal, Inc., 138 F.R.D. at 443--444 (holding that wholly owned subsidiary had sufficient control
to obtain information from parent corporation because parent corporation was intimately
involved with contract at issue, documents were part of regular course of business between two
companies, and subsidiary had "easy and customary access" to parent's documents involving the
transaction at issue). Therefore, the Court denies Plaintiffs' motion with respect to the request
for documents in the possession of BMW AG.

However, Defendant's stock and repeated

objections to requests being vague, overbroad, and not reasonably calculated to lead to the

IO

discovery of admissible evidence are overruled and, if Defendant relied on any of those
objections to withhold documents, any such documents must be produced forthwith.
C. Analysis of Interrogatories at Issue
Plaintiffs' motion also seeks an order from this court compelling Defendant to answer
interrogatories numbered 4, 5, 6, 7, 8, 9, 10, 11, 14, and 15, which seek to discover information
about the alleged design defect of the jack and subject vehicle. Rule 37(a)(3)(B)(iii) allows a
party seeking discovery to move a court for an "order compelling an answer, designation,
production, or inspection" if the responding party "fails to answer an interrogatory submitted
under Rule 33." Fed. R. Civ. P. 37(a)(3)(B)(iii). "A party answering interrogatories is required
to provide information that is available to it and can be produced without undue labor and
expense." Miller v. Pruneda, 236 F.R.D. 277, 282 (N.D. W. Va. 2004). The party objecting to
interrogatories bears the burden of showing that the information sought is not reasonably
available to it. See Wright, supra, § 2174. "If the answering party lacks necessary information
to make a full, fair and specific answer to an interrogatory, it should so state under oath and
should set forth in detail the efforts made to obtain the information." Essex Builders Grp., Inc. v.
Amerisure Ins., 230 F.R.D. 682, 685 (M.D. Fla. 2005) (quotation omitted); see also Wright,
supra, § 2177 & n.5 ("If a party is unable to give a complete answer to an interrogatory, it should
furnish any relevant information that is available.").

Defendant objected to certain of the

interrogatories on similar grounds as the objections to the requests for production of documents;
that is, it asserted that the information is not within its control and that the requests are vague,
overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of
admissible evidence. Doc. 18-6 at 6-10.

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"The majority interpretation of Rule 33 requires that a corporation furnish such
information as is available from the corporation itself or from sources under its control."
Westinghouse Credit Corp. v. Mountain States Mining & Milling Co., 37 F.R.D. 348, 349 (D.
Colo. 1965) (citations omitted); see also Am. Int'l Specialty Lines Ins. Co. v. NWI-I, Inc., 240
F.R.D. 401, 413 (N.D. Ill. 2007) ("Rule 33 imposes a duty to provide full answers to
interrogatories, including all the information within the responding party's knowledge and
control."). For the same reasons discussed in the preceding section, Defendant has provided
facts supporting that it does not have control generally over information from BMW AG,
although it certainly has control over whatever it has received from BMW AG as a part of its
business relationship with that entity. Glenz, 2010 WL 2758729, at *4 (finding interrogatory
was properly objected to by defendant where defendant could not access information requested
from another entity through ordinary course of business); Am. Int'l Specialty Lines Ins. Co., 240
F.R.D. at 413 (denying motion to compel because defendants had no control over non-parties);
United States v. Asarco, Inc., 471 F. Supp. 2d 1063, 1065 (D. Idaho 2005) (finding company was
not required to respond to interrogatory where information dealt with non-party outside of
company's knowledge). However, Defendant still must set forth what effort it made to obtain
information sought by an interrogatory. Essex Builders Grp., Inc., 230 F.R.D. at 685. Defendant
avoided giving any meaningful answer to interrogatories 4, 5, 6, 7, 8, 9, 10, 11, 14, and 15, and
should either provide a substantive answer if it knows or indicate that it does not know the
identities of any person involved in such product development, design, or engineering or material
or communications related thereto as sought by the interrogatories. Defendant may have twentyone days to supplement its interrogatory answers to better answer the interrogatories.
Defendant's stock and repeated objections to the interrogatories being vague, overbroad, and not

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reasonably calculated to lead to the discovery of admissible evidence are overruled. Further,
Defendant's complete refusal to abide by a reasonable definition of the word "identify,"2 Doc.
18-5 at 6 (instructing what "identify" means), renders the interrogatory answers incomplete,
Wright, supra, § 2177 ("[I]nterrogatories should be answered directly and without evasion in
accordance with information that the answering party possesses after due inquiry.").
D. Analysis of Initial Disclosures

Next, Plaintiff protests that Defendant did not disclose the name and contact information
for BMW AG or Storz in its initial disclosures despite its knowledge of that information.
Doc. 18 at 2-3. Plaintiff requests that Defendant "be precluded from hiding behind another
entity as the failure to disclose was not 'substantially justified' and is certainly not harmless ..
. ." Doc. 18 at 7. If a party fails to make initial disclosures as required by Rule 26(a), the "other
party may move to compel disclosure and for appropriate sanctions."

Fed. R. Civ. P.

37(a)(3)(A). Rule 37(c)(l) states that "[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) ... the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless." Additional and alternative sanctions may also be imposed under Rule
37(c)(l)(A}-(C).

Fed. R. Civ. P. 37(c)(l)(A}-(C).

The latter part of Rule 26(a)(l)(A)(i),

however, only requires a party to provide initial disclosures of contact information for those
individual likely to have discoverable information "that the disclosing party may use to support
its claims or defenses, unless the use would be solely for impeachment."

2

Fed. R. Civ. P.

Plaintiffs' instruction on how to identify a person simply sought "his/her name," "his/her last
known business and residence address and telephone number," and information on the person's
employment or title at the relevant time. Doc. 18-5 at 6. This is not an unreasonable definition
of "identify" and should be answered, save for the residence address or residence phone of those
people who are employed with Defendant or an affiliate of Defendant.
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26(a)(l)(A)(i). Defendant asserts that its initial disclosure did not include information about
BMW AG or Storz because it has no intention of using that information for its claims or
defenses. Doc. 22 at 14-15. Thus, given Defendant's stated intentions, it was not required to
name BMW AG or Storz or their representatives in its initial disclosures, but may be precluded
from calling any such witnesses or using such information at trial.

However, that is for

consideration on a later motion in limine or at trial, rather than a ruling now.
E. Sanctions

Finally, Plaintiffs move for an order under Rule 37(a)(5) awarding Plaintiffs' attorney's
fees for Defendant's failure to properly and timely respond to discovery and necessitating the
filling of this motion. If a motion to compel discovery is granted in part and denied in part, a
district court "may issue any protective order authorized under Rule 26(c) and may, after giving
an opportunity to be heard, apportion the reasonable expenses for the motion." Fed. R. Civ. P.
37(a)(5)(C). The district court has broad discretion in imposing discovery sanctions.

Good

Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794, 798 (8th Cir. 2003); see also Nat'l
Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976) (noting abuse of
discretion standard). Because a legitimate question of control was presented and because this
Court has overruled certain of Defendant's objections, an award of sanction is not appropriate
under these circumstances for either party.
V. CONCLUSION

Therefore, it is hereby
ORDERED that Plaintiffs Motion to Compel Discovery and for an Award of Attorney's
Fees and Costs, Doc. 17, is granted in part and denied in part and Defendant is directed to

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supplement its interrogatory answers and review and possibly supplement its responses to
requests for production of documents within twenty-one (21) days of the date of this order.

DATED this

5""- day of February, 2016.
BY THE COURT:

R9rt9.E~=

UNITED STATES DISTRICT JUDGE

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