Davis v. Crescent Electric Supply Company et al

Filing 122

MEMORANDUM OPINION AND ORDER granting 101 Motion to Compel. Signed by U.S. District Judge Lawrence L. Piersol on 4/21/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

PILED
APR 2 1 2016

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CLERK
LISA A. DAVIS,
Plaintiff,

vs.
CRESCENT ELECTRIC COMPANY,
("CESCO") a Delaware Corporation;
JAMES M. SULLIVAN, CESCO 015
Branch Manager; MARTINS.
BURBRIDGE, President/CEO; JAMES R.
ETHEREDGE, Sr. Vice Pres./CFO;
CHRISTOPHER P. BRESLIN,
Sr. Vice Pres./COO; DANIEL E.
PHILIPPI, Vice Pres.-Human Resources;
JAMES M. SWEENEY AND
AS SOCIATES, INC., an Iowa Corporation;
LIBERTY MOTORS, INC. ("LIBERTY"),
a South Dakota Domestic Business;
. LARRY L. PATNOE, Liberty President;
and DONALD E. PATNOE, Liberty
President/Treasurer,
Defendants.

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CIV 12-5008

MEMORANDUM OPINION AND
ORDER ON PLAINTIFF'S MOTION
TOCOMPEL

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Plaintiff Lisa Davis (Davis) has filed a motion to compel discovery pursuant to Federal
Rule of Civil Procedure 37(a). For the following reasons, the motion will be granted.

BACKGROUND
The facts of this case were thoroughly explained in this Court's Memorandum Opinion
and Order on Plaintiffs Motion for Sanctions. As such, the Court will only recite the facts
directly pertinent to this pending motion to compel. Discovery in this case was to be completed
by March 19, 2015. Doc. 66. The motion deadline was April 16, 2015. Id. On August 15, 2015,
counsel for Davis sent a letter via email to counsel for CESCO requesting production of the
"PST computer files that contain all the emails that were sent and received by the owners of the

associated email account." Plaintiffs Brief in Support of Motion to Compel, Doc. 105, at 3-4.
Davis retained Michael N. Wakshull, a forensic document examiner, and wishes for him to
examine the files that Defendants would disclose were an order to compel issued from this Court.
On August 17, 2015, counsel for CESCO rejected Davis's request for production. Citing
the prejudice that would befall CESCO were Defendants to produce the requested computer files,
Defendants stated, "Without an Order allowing discovery and agreement on the terms of an
examination, we will not provide the requested PST files." Id., Doc. 105-2, at 3. This motion to
compel followed.
There is no dispute that, in its initial disclosures in discovery, CESCO provided Davis
with a copy of the email at issue here.
DISCUSSION

"The district court has broad discretion to compel or deny discovery, and [an appellate
court] will therefore leave undisturbed a district court's ruling unless [it is found] that [the
district court] made a clear error of judgment or applied the wrong legal standard." Jackson v.

Corrections Corp. of America, 606 Fed.Appx 945, 950 (11th Cir. 2015) (citing Josendis v. Wall

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to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306-07 (11th Cir. 2011)). As such, a district

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court retains "'a range of choice' in such matters," and a reviewing court "will not second-guess
the district court's actions unless they reflect a 'clear error of judgment."' Holloman v. Mail-Well

Corp., 443 F.3d 832, 837 (11th Cir. 2006) (quoting United States v. Kelly, 888 F.2d 732, 745
(11th Cir. 1989)).
Motions to compel discovery disclosures are governed by Federal Rule of Civil
Procedure 37. "A party requesting the discovery is entitled to move for [an order] compelling
disclosure after having made a good faith effort to resolve the dispute by first conferring with the
other party." Black Hills Molding, Inc. v. Brandom Holdings, LLC, 295 F.R.D. 403, 409 (D.S.D.
2013). Under this district's local rules, "A party filing a motion concerning a discovery dispute
shall file a separate certification describing the good faith efforts of the parties to resolve the
dispute." D.S.D. LR 37.1. The scope of what is discoverable under Federal Rule of Civil
Procedure 26(b) is extremely broad. See 8 Charles Alan Wright, et al., Federal Practice and
Procedure § 2007, 118-24 (3d ed. 2010). "To that end, either party may compel the other to
disgorge whatever facts he has in his possession." Id. at 120 (quoting Hickman v. Taylor, 329
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U.S. 495. 507, 67 S.Ct. 385, 91 L.Ed 451 (1947)). If an undue delay has been caused by the
moving party, the court may reject a motion to compel as untimely. Gault v. Nabisco Biscuit Co,
184 F.R.D. 620, 622 (D. Nev. 1999) (quoting SA Wright, Miller & Marcus, Federal Practice
and Procedure: Civil 2d § 2285 (1994 & Supp. 1998)). If such delay results in substantial

injustice to the nonmoving party, "'the court may hold that the requesting party has waived the
right to compel response and disclosure."' Id. (quoting The Rutter Group, Federal Civil
Procedure Before Trial,

if 11.753 (1998)). "A motion to compel may be filed after the close of

discovery." Id. See Barnes v. District of Columbia, 289 F.R.D. 1, 6 (D.D.C. 2012) ("Courts may,
if appropriate, consider motions to compel filed after discovery has closed.") (citation omitted).
"Federal Rule of Civil Procedure 26 permits discovery of anything relevant to a claim or
defense at issue in the case." Brandom Holdings, LLC, 295 F.R.D. at 411. "Relevancy is to be
broadly construed for discovery issues and is not limited to the precise issues set out in the
pleadings." Id. Thus, "'[r]elevancy ... encompass[ es] any matter that could bear on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in the case."'
Id. (quoting EEOC v. Woodmen of the World Life Ins. Soc'y, No. 08:03-CV-165, 2007 WL

1217919, at *1 (D. Neb. Mar. 15, 2007) (internal quotations and citation omitted)). According to
the Advisory Committee's note to the 2000 amendments to Rule 26(b)(l),
The Committee intends that the parties and the court focus on the actual claims
and defenses involved in the action .... The rule change signals to the court that it
has the authority to confine discovery to the claims and defenses asserted in the
pleadings, and signals to the parties that they have no entitlement to discovery to
develop new claims or defenses that are not already identified in the pleadings ...
. When judicial intervention is invoked, the actual scope of discovery should be
determined according to the reasonable needs of the action. The court may permit
broader discovery in a particular case depending on the circumstances of the case,
the nature of the claims and defenses, and the scope of the discovery requested.
Fed.R.Civ.P. 26(b)(l) Advisory Committee's Notes, 2000 Amendment. Ultimately, "[c]ourts
consider the prior efforts of the parties to resolve the dispute, the relevance of the information
sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to
compel." Barnes, 289 F.R.D. at 5-6 (citations omitted).
Here, by the time Davis's current attorney-of-record began handling Davis's case,
discovery had closed. The Order, Doc. 92, issued on July 13, 2015, made clear that Davis could

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file a motion to compel further discovery once attorney Gonzalez familiarized himself with the
case. Doc. 92 at 2 n. 1 ("The court does not interpret Ms. Davis' motion to continue as a motion
to compel. If a discovery dispute persists after attorney Gonzalez familiarizes himself with the
case and the parties complete good faith efforts to resolve the dispute (D.S.D. LR 37.1), Ms.
Davis retains the ability to file a motion to compel at that time."). Attorney Gonzalez contacted
defense counsel on August 15, 2015 in an effort to resolve the claimed email dispute without
resorting to court intervention. It was only after Defendants rejected Gonzalez's request that
Gonzalez sought court intervention. In addition, Davis's motion to compel was filed on August
24, 2015. This Court does not find that the time between the July 13 Order and Davis's motion to
compel to be an example of undue delay. Given that Defendants produced over 30,000 pages of
documents in discovery, including a copy of the email at issue here, the amount of time taken to
review those documents and then draft and file the motion to compel is reasonable. While
Defendants argue that the motion to compel is untimely and, in effect, is a request to reopen
discovery, a court is not prohibited from granting a motion to compel despite the fact that
discovery has closed. See Barnes, 289 F.R.D. at 20 ("This Court truly wishes, in the spirit of its
April 27, 2012 Order, [], that discovery for the liability phase would be finished by now.
However, the Court finds reason to partially grant plaintiffs' Motion to Compel, despite the fact
that it was filed after the close of fact discovery."). The information Davis seeks through her
motion to compel is not, Defendants point out, information that was sought by Davis when
discovery was open and not provided by Defendants. See id. ("Plaintiffs claim the information
they seek relates to three previous document requests."). In any event, Davis seeks the
information based on a disclosure that was provided during discovery, i.e., the claimed email in
question. Given the unique claims being asserted by Davis-that Defendants fabricated the email
in question-the Court finds that the additional discovery requested is warranted.
Defendants further object on the ground that the information sought by Davis was not
requested in compliance the formal rules established by Federal Rule of Civil Procedure 34. Rule
34 provides a procedure for production of electronically stored information by an opposing party.
Rule 37 provides that the requesting party may move for an order to compel discovery after there
has been a failure to respond to a request. The Court rejects, however, the argument that Davis's
motion to compel should be denied only because of the form of the initial request. The "'meet
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and confer' requirement, satisfied in this instance, requires counsel to communicate in good
faith with each other-via telephone, letter correspondence, or email-to attempt to resolve any
discovery disputes prior to the filing of a motion to compel." 0 'Malley v. NaphCare Inc., 311
F.R.D. 461, 464 (S.D. Ohio 2015).
Defendants also object that the information sought is not relevant. '"Relevant information
need not be admissible at the trial[, however,] if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.'" Id. (quoting Fed.R.Civ.P. 26(b)(l)). In Garcia v.
Berkshire Life Ins. Co. ofAmerica, the plaintiffs argued, in opposition to a motion for sanctions,

that a questionable email had no relevance to any issue in the case. No. 04-cv-01619-LTBBNB, 2007 WL 6757307, at *7 (D. Co. Nov. 29, 2007). The email was presented to the court in
Garcia at a hearing to determine "plaintiff's explanation for why attorney fees should not [have

been] assessed against her in connection with [an] order granting in part a motion to compel
discovery." Id. at *6. Finding the email to be relevant to the action, the Garcia court disagreed. It
held, "The great significance of the [] e-mail string is that it demonstrates that the plaintiff's
willingness to lie knows no bounds. [The plaintiff] is willing equally to ... submit false evidence
in open court. The plaintiff's conduct is destructive of the justice system and is intolerable." Id.
at *7.
Here, this Court noted in the Conclusion of the previous Memorandum Opinion and
Order ruling on Davis's motion for sanctions that the claimed email in question is peripheral to
the issues in this case. The Court also expressed concerns regarding Federal Rule of Evidence
403 and how that Rule might affect the claimed email's presentation at trial. At any rate, the
claimed fake email and its origins is relevant here insofar as it affects the integrity of this Court
and the justice system at large. As noted in the previous Order ruling on Davis's motion for
sanctions, submitting a false discovery document--0r fabricating evidence-"has been referred to
as 'the most egregious misconduct' which justifies a finding of fraud upon the Court."
Interpreter Services, Inc. v. BTB Technologies, Inc., No. CIV 10-4007, 2011 WL 6935343, at *8

(D.S.D Dec. 29, 2011) (quoting In re Coordinated Pretrial Proceedings in Antibiotic Antitrust
Actions (Antitrust Actions), 538 F.2d 180, 195 (8th Cir. 1976), abrogation on other grounds
recognized by Briscoe v. County of St. Louis, Missouri, 690 F.3d 1004, 1011 n. 2 (8th Cir.

2012)). While the Court does not rule on whether or not the claimed email is in fact fabricated,
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its origins are relevant to this action. Defendants maintain that allowing for the discovery
requested will present undue burden as they will be forced to hire their own expert to examine
the email and rebut Davis. The Court acknowledges that this process will surely prolong this
litigation, but Defendants are nonetheless free to hire their own expert in opposition to Davis.

IT IS ORDERED that Plaintiff Lisa A. Davis's motion for an order to compel discovery,
Doc.101, is granted.

Dated this 21st day of April, 2016.
BY THE COURT:

ATTEST:

JOSEPH~
BY:

5UfVl1Yl

Deputy

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