Black Hills Molding, Inc. v. Brandom Holdings, LLC

Filing 38

ORDER granting in part and denying in part defendant's 26 Motion to Compel and to Deem Requests to Admit Admitted; and granting plaintiff's 33 Motion to Declare Plaintiff's Responses to Requests for Admission Timely. Signed by US Magistrate Judge Veronica L. Duffy on 11/19/13. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BLACK HILLS MOLDING, INC.,
)
CIV. 12-5051
)
Plaintiff,
)
ORDER GRANTING IN PART
)
AND DENYING IN PART
vs.
)
DEFENDANT’S MOTION TO
)
COMPEL AND GRANTING
BRANDOM HOLDINGS, LLC,
)
PLAINTIFF’S MOTION TO
)
DEEM ITS ADMISSIONS
Defendant.
)
TIMELY
)
[DOCKET NOS. 26 & 33]
INTRODUCTION
This diversity action is before the court on plaintiff Black Hills Molding’s
complaint against defendant Brandom Holdings, LLC alleging breach of
contract and promissory estoppel. See Docket No. 1-1. Pending is Brandom
Holdings’ motion to compel plaintiff to respond to certain discovery requests.
See Docket No. 26. Plaintiff resists this motion and filed a separate motion
requesting that this court deem plaintiff’s responses as timely. See Docket No.
33. The Chief District Judge, the Honorable Jeffrey L. Viken, referred these
motions to this magistrate judge for resolution pursuant to 28 U.S.C.
§ 636(b)(1)(A) (2006).
BACKGROUND & PROCEDURAL HISTORY
On June 13, 2012, plaintiff Black Hills Molding, Inc. (“Black Hills
Molding”), a corporation incorporated in the State of South Dakota, served a
complaint on Brandom Holdings, LLC (“Brandom”), a corporation incorporated
1

in the State of Texas, alleging breach of contract and promissory estoppel. See
Docket 1-1. The complaint was initially filed in state court for the State of
South Dakota. Id. However, defendant Brandom removed the complaint to the
United States District Court for the District of South Dakota based on the
Court’s diversity of citizenship jurisdiction. See Docket 1; 28 U.S.C. §1441(a)
(2006). As set forth below, the parties have become embroiled in a discovery
dispute concerning the timeliness, sufficiency, and the appropriateness of
court-ordered sanctions as it relates to Black Hills Molding’s responses to
Brandom’s discovery requests.
On May 28, 2013, counsel for Brandom contacted counsel for Black Hills
Molding requesting discovering of the six categories of documents pertinent to
the present dispute, which Black Hills Molding stated it possessed in its
January 18, 2013, initial disclosures. See Docket No. 28-4. On May 30, 2013,
counsel for Brandom Holdings served on Black Hills Molding its first set of
interrogatories, requests for production (“RFPs”), and requests for admission
(“RFAs”). See Docket No. 28-1. Brandom’s May 30, 2013 discovery requests
consisted of ten interrogatories,1 fifteen RFPs, and nine RFAs. Id. Following
Black Hills Molding’s failure to respond to the discovery requests, Brandom
Holding’s local counsel requested the same via telephone on June 6 and 7,
2013, and in writing on June 7 and 13, 2013. Id.
With the exception of interrogatory four and seven, regarding the
identification of inventory, each of Brandom’s ten interrogatories took the same
two-prong form: a question was posed to Black Hills Molding, followed by a
subpart (a) requesting Black Hills to “[s]tate all facts that support your
contention,” and a subpart (b) requesting Black Hills Molding to “[i]dentify all
documents that support your contention.” See Docket No. 28-1.
2
1

On June 25, 2013, counsel for Brandom, by letter, requested that Black
Hills Molding supplement its initial disclosures. See Doc. 28-4. Notably,
Brandom’s letter stated that it was “a follow-up to my voice mail and e-mail
messages to you as of today regarding Plaintiff’s failure to produce documents
identified in Plaintiff’s initial disclosures and my good faith attempt to resolve
this dispute as required by local rule 37.1.” Id. (emphasis added). In this
letter, Brandom’s counsel proposed delaying the deposition of Black Hills
Molding’s corporate representative until July 9-11, 2013, in an effort to allow
Black Hills Molding adequate time to provide Brandom with the requested
discovery in advance of the deposition. See id.
On June 26, 2013, Brandom’s counsel served a Second Amended Notice
of a Federal Rule of Civil Procedure 30(b)(6) deposition on Black Hills Molding,
which was scheduled for July 11, 2013. See Docket 28-5. Brandom Holding’s
30(b)(6) deposition was coupled with a subpoena duces tecum, instructing the
corporate representative of Black Hills Molding to “bring with them to the
deposition all documents (a) that they review between now and their deposition
to prepare to testify on the foregoing subjects, or (b) that contain information
responsive to the foregoing subjects.” Id.
On June 28, 2013, counsel for Black Hills Molding requested that it be
given until the close of business on July 2, 2013, a three-day extension,2 to
Pursuant to the District Court’s scheduling order, Black Hills Molding
was allowed thirty days to respond to Brandom’s May 30 discovery requests,
see Docket No. 22, which imposed a June 29, 2013 deadline by which Black
Hills Molding, absent an extension agreed upon by Brandom, was required to
respond to Brandom’s May 30 discovery requests.
3
2

respond to Brandom’s May 30 discovery requests. See Docket No. 28-6.
Brandom granted the extension, and, on July 2, 2013, Black Hills Molding
provided Brandom with 534 pages of documents sent via email. See Docket
No. 29; see also Docket No. 28-7.
However, it was not until July 3, 2013, one day after the expiration of the
three-day extension, that Black Hills Molding served its responses to
Brandom’s May 30 discovery requests on Brandom. See Docket No. 28-7.
Specifically, Black Hills Molding admitted to RFAs one, two, and four; denied
RFAs three, five, six, seven, and eight with an explanation; and denied RFA
nine without an explanation. See Docket No. 28-7.
With respect to the interrogatories, Black Hills Molding responded by
referring Brandom to the entirety of its July 2 email disclosures3 on fourteen of
the twenty-one total sub-questions posed. See Docket No. 28-7. Black Hills
Molding’s responses, with the exception of those offered in sub-question (a) of
both interrogatory eight and nine, provide little—if any support—or context for
the response given. See, e.g., Docket No. 28-7. Similarly, Black Hills Molding
responded to every one of Brandom’s RFPs by answering: “[s]ee BH Molding 1534,”4 “[w]e are still looking for these,”5 “[t]hese will be provided when the
invoices are prepaid,”6 or “[s]ee BH Molding 534.”7 See Docket No. 28-7. Black
Hills Molding’s responses to Brandom’s ten interrogatories were signed only by
In these instances, Black Hills Molding interrogatory responses took the
form of, “ANSWER: See BH Molding 1–534.” Docket No. 28-7.
4 Brandom Request for Production 1–7, 9–13.
5 Brandom Request for Production 8.
6 Brandom Request for Production 14.
7 Brandom Request for Production 15.
4
3

its counsel. See Docket No. 28-7. No agent of Black Hills Molding signed its
responses to Brandom’s interrogatories.
On July 11, 2013, pursuant to the second amended deposition notice,
see Docket No. 28-5, Brandom began the deposition of David Mallams, the
corporate representative of Black Hills Molding. Docket No. 28-8. However,
Brandom suspended the deposition of David Mallams8 after only ninety
minutes and refused to depose Greg Mallams. Id. Brandom, in its motion to
compel and without objection from Black Hills Molding, asserted that Mr.
David Mallams failed to bring the documents requested in the subpoena duces
tecum. Id.
On July 16, 2013, following the failed July 11 deposition attempt,
counsel for Brandom contacted Black Hills Molding via letter with a stated
purpose of providing a “good-faith attempt to resolve this dispute as required
by Local Rule 37.1.” Docket No. 28-8. In this letter, Brandom proposed a
three-step process whereby Black Hills Molding would supplement its
interrogatory responses and document production efforts by July 30, 2013, the
suspended deposition of Black Hills Molding’s corporate representatives would
be reconvened by prior to August 31, 2013, and both Black Hills Molding and
Brandom would file an agreed upon motion to extend the court’s discovery
motion filing deadline from July 31, 2013 to September 30, 2013. See id.

The court notes that it is interpreting “Mr. Mullins,” see Docket No. 29,
page 5, to be the same person as “Mr. David Mallams” who defendant identified
earlier, on the same page, to be Black Hills Molding’s corporate representative.
Id.
5
8

Brandom’s July 16 letter to Black Hills Molding was Brandom’s final
attempt to resolve the discovery dispute without court intervention. Id. To
that end, Brandom informed Black Hills Molding that unless it agreed to the
proposed terms by July 18, 2013 at 5:00 p.m. Central Time, Brandom would
file a motion to compel discovery from Black Hills Molding. Id.
On July 18, 2013, Black Hills Molding responded to Brandom’s July 16
letter. Black Hills Molding’s response was limited to the six deficiencies
Brandom alleged regarding its initial disclosures. Notably, Black Hills Molding
claimed that “some” of its disclosed documents were responsive both as initial
disclosures and as responses to specific discovery requests. See Docket No.
28-9. In response to Brandom’s first alleged initial disclosure deficiency, Black
Hills Molding stated that the 534 pages of emails, which it provided to
Brandom via email on July 2, 2013, containing correspondence between Black
Hills Molding and either Brandom Holdings, LLC or Brandom Southwest, LP,9
were dual purposed and should be considered both as part of Black Hills
Molding’s initial disclosures and as responsive to Brandom’s specific requests
for documents. Id.
In response to Brandom’s second alleged initial disclosure deficiency,
Black Hills Molding stated that the aforementioned 534 pages of emails “also
reflect Holdings and Southwest’s purchase of cabinetry components.” Id. In
response to Brandom’s third alleged initial disclosure deficiency, Black Hills
Brandom Southwest, LP had a pre-existing relationship with Black Hills
Molding, until October 15, 2009 when Brandom Holdings, LLC purchased
Brandom Southwest, LP, at which point Brandom Holdings, LLC continued to
transact business with Black Hills Molding.
6
9

Molding provided new invoices from Black Hills Molding to either Brandom
Holdings, LLC or Brandom Southwest, LP. Id. (referencing “BH Moldings 542
through 560”). Black Hills Molding also noted “that Tammy’s computer
contained some of the invoices but those were deleted prior to this litigation
beginning.” Id. Additionally, Black Hills Molding provided Brandom with a
copy of the “Non-circumvention & Sales Agreement.” Id.
On July 25, 2013, Brandom filed a motion compelling Black Hills
Molding to respond fully and completely to its discovery requests, to make its
corporate representative available to be deposed at a mutually agreeable time
and location, and seeking the reasonable attorney’s fees it incurred in filing its
motion to compel. See Docket No. 26. Brandom also sought an order of the
court deeming its RFAs to be admitted by Black Hills Molding because those
responses were one day late. Id. Shortly thereafter, on August 14, 2013, Black
Hills Molding filed a motion resisting Brandom’s motion to compel discovery
and moving the court to deem its July 3, 2013, responses to the defendant’s
RFAs as timely. See Docket No. 33.
DISCUSSION
A.

Meet-and-Confer Requirement
Under Federal Rule of Civil Procedure 37(a)(4), a party’s “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). A party requesting the
discovery is entitled to move for a motion compelling disclosure after having

7

made a good faith effort to resolve the dispute by first conferring with the other
party. A motion to compel answers to interrogatories or requests for the
production of documents is governed by Federal Rule of Civil Procedure 37.
That rule provides, in pertinent part:
On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court
action.
FED. R. CIV. P. 37(a)(1).
Likewise, the local rules in this district require the movant to identify the
efforts already taken to resolve the dispute without court involvement.
Specifically, “[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.” See D.S.D. LR 37.1.
Prior to seeking an order from this court compelling discovery,
Brandom’s counsel repeatedly and in good faith contacted the counsel of Black
Hills Molding seeking discovery without court intervention. Brandom has
contacted Black Hills Molding no less than seven times, including in-person
conversations, telephone, email, and letter, in an effort to gain access to the
discovery material that is the basis of this motion. See Docket No. 28. In fact,
Brandom’s June 25, 2013, and July 16, 2013, letters to Black Hills Molding
specifically reference that the letters represented Brandom’s “good faith
attempt to resolve this dispute as required by Local Rule 37.1.” Docket No. 28-

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4; see also Docket No. 28-8. Brandom waited until July 25, 2013, seven days
after the expiration of the deadline that Black Hills Molding was given to accept
Brandom’s proposed resolution, before filing this motion to compel discovery.
See Docket No. 28-8, 26.
To date, Black Hills Molding has not addressed, and apparently takes no
issue with, Brandom’s representations regarding its attempts to contact it and
resolve the discovery dispute without court intervention. Accordingly, the court
finds that Brandom has satisfied the good faith, meet-and-confer prerequisite
to filing the instant discovery motion. See FED. R. CIV. P. 37(a)(1); D.S.D LR
37.1.
B.

Standard Applicable to Discovery in Federal Court
1.

General Scope

Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery
in civil cases pending in federal court:
Unless otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense—including the existence, description, nature, custody,
condition, and location of any documents or other tangible things
and the identity and location of persons who know of any
discoverable matter. For good cause, the court may order
discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)(C).
FED. R. CIV. P. 26(b)(1). Rule 26 contains specific limitations relative to
electronic discovery and other objections to providing discovery:
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(B)

Specific Limitations on Electronically Stored Information. A party need not
provide discovery of electronically stored information from sources that
the party identifies as not reasonably accessible because of undue
burden or cost. On motion to compel discovery or for a protective order,
the party from whom discovery is sought must show that the information
is not reasonably accessible because of undue burden or cost. If that
showing is made, the court may nonetheless order discovery from such
sources if the requesting party shows good cause, considering the
limitations of Rule 26(b)(2)(C). The court may specify the conditions for
the discovery.

(C)

When Required. On motion or on its own, the court must limit the
frequency or extent of discovery otherwise allowed by these rules or by
local rule if it determines that:
(i)

the discovery sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient,
less burdensome, or less expensive;

(ii)

the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or

(iii)

the burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at
stake in the action, and the importance of the discovery in
resolving the issues.

See FED. R. CIV. P. 26(b)(2)(B) and (C).
The scope of discovery under Rule 26(b) is extremely broad. See 8
Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE
AND

PROCEDURE § 2007, at 118–24 (3d ed. 2010). The reason for the broad

scope of discovery is that "[m]utual knowledge of all the relevant facts gathered
by both parties is essential to proper litigation. 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 U.S. 495, 507 (1947)). The Federal Rules

10

distinguish between discoverability and admissibility of evidence. FED. R. CIV.
P. 26(b)(1), 32, and 33(a)(2). Therefore, the rules of evidence assume the task
of keeping out incompetent, unreliable, or prejudicial evidence at trial.
However, these considerations are not inherent barriers to discovery.
Discoverable information need not be admissible at trial; rather, “discovery of
such material is permitted if reasonably calculated to lead to the discovery of
admissible evidence.” See FED. R. CIV. P. 26(b)(1) Advisory Committee’s Notes,
2000 Amendment.
2.

Relevancy

As stated above, Federal Rule of Civil Procedure 26 permits discovery of
anything relevant to a claim or defense at issue in the case. The Advisory
Committee’s note to the 2000 amendments to Rule 26(b)(1) provides guidance
on how courts should define the scope of discovery in a particular case:
Under the amended provisions, if there is an objection that
discovery goes beyond material relevant to the parties’ claims or
defenses, the court would become involved to determine whether
the discovery is relevant to the claims or defenses and, if not,
whether good cause exists for authorizing it so long as it is relevant
to the subject matter of the action. The good-cause standard
warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the
actual claims and defenses involved in the action. The dividing
line between information relevant to the claims and defenses and
that relevant only to the subject matter of the action cannot be
defined with precision. A variety of types of information not
directly pertinent to the incident in suit could be relevant to the
claims or defenses raised in a given action. For example, other
incidents of the same type, or involving the same product, could be
properly discoverable under the revised standard. . . . In each
instance, the determination whether such information is
discoverable because it is relevant to the claims or defenses
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depends on the circumstances of the pending 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.
See FED. R. CIV. P. 26(b)(1) Advisory Committee’s Notes, 2000 Amendment.
The same Advisory Committee’s note further clarifies that information is
discoverable only if it is relevant to the claims or defenses of the case or, upon
a showing of good cause, to the subject matter of the case. Id. Relevancy is to
be broadly construed for discovery issues and is not limited to the precise
issues set out in the pleadings. “Relevancy . . . 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.’” E.E.O.C. v. Woodmen of the World
Life Ins. Soc’y, No. 08:03-CV-165, 2007 WL 1217919, at *1 (D. Neb. Mar. 15,
2007) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
The party seeking “discovery must make a threshold showing of
relevance before production of information, which does not reasonably bear on
the issues in the case, is required.” Id. (citing Hofer v. Mack Trucks, Inc., 981
F.2d 377, 380 (8th Cir. 1993)). “Mere speculation that information might be
useful will not suffice; litigants seeking to compel discovery must describe with
a reasonable degree of specificity, the information they hope to obtain and its

12

importance to their case.” Id. (citing Cervantes v. Time, Inc., 464 F.2d 986,
994 (8th Cir. 1972)). With these standards in mind, the court turns to the
discovery requests made by Brandom to Black Hills Molding that are the
subject of this dispute.
3.

Plaintiff Waived the Right to Object to Defendant’s
Discovery Requests

Under Federal Rule of Civil Procedure 33(b)(4), if not timely asserted,
objections to discovery requests are waived, unless the court finds good cause
to excuse the failure to object. See, e.g., Janis v. Nelson, No. 09-5019, 2009 WL
5216898, at *8 (D.S.D. Dec. 30, 2009); Delaney v. Ashcraft, No. 05-6045, 2006
WL 2080023, at *1 (W.D. Ark. July 25, 2006). Neither Black Hills Molding nor
its counsel objected to any of the interrogatories or RFPs propounded by
Brandom. Furthermore, the time during which Black Hills Molding could have
made objections has lapsed, and there is an absence of good cause appearing
in the record to excuse the plaintiff’s failure to timely object. See Docket No.
28. Accordingly, to the extent the plaintiff had objections to Brandom’s
discovery requests, the plaintiff has waived the right to object. FED. R. CIV. P.
33(b)(4).
Black Hills Molding has also failed to sign its responses to Brandom’s
interrogatories in accordance with Federal Rule of Civil Procedure 33(b)(3) and
(5). FED. R. CIV. P. 33(b)(5). Under the Federal Rule of Civil Procedure,
interrogatories must be signed, under oath, by the party itself, not the party’s
lawyer. See FED. R. CIV. P. 33(b)(3) and (5) (the party must answer each
13

interrogatory separately and fully in writing under oath—the attorney signs
only as to objections that are interposed). Therefore, plaintiff’s responses to
interrogatories are invalid on procedural grounds, regardless of the substance
of the answers given. The court now turns to the substance of the specific
discovery requests made by Brandom Holdings.
4.

Plaintiff’s Interrogatories and Request for Production

Brandom Holding’s interrogatories and RFPs requested responses to ten
interrogatories and fifteen RFPs. Docket No. 28-1. Black Hills Molding failed
to object to any of Brandom’s interrogatories or RFPs. See Docket No. 28-7. As
previously noted, the plaintiff has largely failed to address any of
the interrogatories or RFPs. Most often, Black Hills Molding merely refers
Brandom to the entirety of its document production. See Docket No. 28-7.
Despite the defendants’ lack of objection to the discovery requests, the court is
obliged to discuss the relevancy and scope of Brandom’s discovery
requests with respect to the standards set forth above. As stated above, the
scope of discovery under Rule 26(b) is extremely broad. See supra. With this
in mind, each of Brandom’s discovery requests is identified and the sufficiency
of each of Black Hills Molding’s corresponding responses is evaluated in turn.
a. Brandom Holdings’ Interrogatories
i.

Interrogatories 1-3

INTERROGATORY NO.1: If you contend that Brandom Holdings,
LLC is a party to Exhibit A, please:
(a) State all facts that support your contention; and

14

[ANSWER: BH Molding 1–534.]
(b) Identify all documents that support your contention.
[ANSWER: BH Molding 1–534.]
INTERROGATORY NO. 2: If you contend that Brandom Holdings,
LLC is bound by the terms of Exhibit A, please:
(a) State all facts that support your contention; and
[ANSWER: See complaint and BH Molding 1–534.]
(b) Identify all documents that support your contention.
[ANSWER: See BH Molding 1–534.]
INTERROGATORY NO. 3: If you contend that Brandom Holdings,
LLC assumed the obligations of Brandom Southwest, LP under
Exhibit A, please:
(a) State all facts that support your contention; and
[ANSWER: Yes see the emails from Phyliss Brennen, David
Harvick and Joe Parziale wherein they question what
Brandom Holdings is obligated for.]
(b) Identify all documents that support your contention.
[ANSWER: See BH Molding 1–534.]
Brandom’s first, second, and third interrogatories seek to elicit
information regarding Black Hills Molding’s assertion that Brandom is a party
to or is bound by the July 10, 2006, Non-circumvention & Sales Agreement.
Interrogatories one, two, and three are contention interrogatories. A contention
interrogatory should not be conflated with a fact-based interrogatory. A factbased interrogatory seeks to identify witnesses and documents bearing on the
allegations. In re Grand Casinos, Inc., Sec. Litig., 181 F.R.D. 615, 618 (D.
15

Minn. 1998).
A contention interrogatory, on the other hand, “may ask another party to
indicate what it contends, to state all the facts on which it bases its
contentions, to state all the evidence on which it bases its contentions, or to
explain how the law applies to the facts.” Id. (quoting McCarthy v. Paine
Webber Group, Inc., 168 F.R.D. 448, 450 (D. Conn. 1996) (internal quotation
marks omitted)). “As to requests for opinions or contentions that call for the
application of law to fact, they can be most useful in narrowing and sharpening
the issues, which is a major purpose of discovery.” FED. R. CIV. P. 33, Advisory
Committee Notes. 1970 Amendment. A court found that “[i]nterrogatories
seeking to elicit what a party’s contentions will be at the time of trial are not
objectionable, as responses to these questions will help narrow the issues to be
tried.” Leksi, Inc. v. Fed. Ins. Co., 129 F.R.D. 99, 107 (D.N.J. 1989) (citing
Anderson v. United Airlines, Inc., 49 F.R.D. 144, 148 (S.D.N.Y. 1969)).
Moreover, another court found that a contention interrogatory requires a
response where the interrogatory “eliminates unnecessary testimony, avoids
wasteful preparation, narrows the issues, leads to relevant evidence or
generally expedites fair disposition of the lawsuit and serves any other
substantial purpose sanctioned by discovery.” McClain v. Mack Trucks, Inc.,
85 F.R.D. 53, 59 (E.D. Pa. 1979) (citing Leumi Fin. Corp. v. Hartford Accident
& Indemnity, Co., 295 F. Supp. 539 (S.D.N.Y. 1969)). Therefore, although a
party has an obligation to identify witnesses and documents bearing on the

16

suit, that party’s discovery obligations are not yet satisfied where relevant
contention interrogatories remain unanswered.
The information Brandom seeks in interrogatories 1-3 is relevant to the
claims of Black Hills Molding. Whether or not Brandom is contractually
obligated under the Non-circumvention & Sales Agreement bears on Brandom’s
defensive strategies at trial, as well as the evidence it is required to produce to
rebut Black Hills Molding’s allegations. Black Hills Molding is also not overly
burdened by requiring answers responsive to Brandom’s first, second, and
third interrogatories. The court requires more from Black Hills Molding than a
reference to the entirety of its document production. Therefore, Brandom’s
motion to compel a response to its first, second, and third interrogatories is
granted. Black Hills Molding is also ordered to sign amended interrogatory
responses in accordance with Federal Rule of Civil Procedure 33(b)(3) and (5).
ii.

Interrogatories 4-5

INTERROGATORY NO. 4: If you contend that Black Hills Molding,
Inc. purchased inventory in reliance on statements made by
Brandom Holdings, LLC, including drawer stocking plans, please:
(a) Identify the inventory;
[ANSWER: See BH Molding 528.]
(b) State all facts that support your contention; and
[ANSWER: See BH Molding 1–534.]
(c) Identify all documents that support your contention.
[ANSWER: See BH Molding 1–534.]
INTERROGATORY NO. 5: If you contend that Brandom Holdings,
17

LLC directed Black Hills Molding, Inc. to purchase the inventory
made the basis of this suit, please:
(a) State the facts that support your contention; and
[ANSWER: See BH Molding 1–534.]
(b) Identify all documents that support your contention.
[ANSWER: See BH Molding 1–534.]
Brandom’s fourth and fifth interrogatories are contention interrogatories
seeking to elicit information regarding the statements or directions of Brandom
that Black Hills Molding relied upon when purchasing the inventory in
question. Additionally, interrogatories four and five direct Black Hills Molding
to identify the inventory it purchased in reliance on Brandom’s alleged
statements and directions.
Information bearing on the statements and directions that Black Hills
Molding relied upon in purchasing the inventory that forms the basis of this
suit is directly relevant to Brandom’s defense to Black Hills Molding’s claims.
In order for Brandom to mount a cogent defense to either of Black Hills
Molding’s breach of contract claim or promissory estoppel claim, it must be
provided with the alleged statements and directions, as well as the inventory
purchased in reliance on those statements. Brandom, without knowledge of
the specific statements and actions giving rise to the claims or the alleged
inventory purchased, would be handicapped in its ability to mount a defense to
Black Hills Molding’s allegations. More is required of Black Hills Molding than
merely referring Brandom, in most cases, to the entirety of its document

18

production. Black Hills Molding must provide specific, responsive answers to
Brandom’s fourth and fifth interrogatories. This requirement is not unduly
burdensome to Black Hills Molding. Accordingly, Brandom’s motion to compel
responses to interrogatories four and five is granted. Black Hills Molding is
also ordered to sign amended interrogatory responses in accordance with
Federal Rule of Civil Procedure 33(b)(3) and (5).
iii.

Interrogatories 6-8

INTERROGATORY NO. 6: If you contend that Brandom Holdings,
LLC has not paid Black Hills Molding, Inc. for product ordered by
Brandom Holdings, LLC from Black Hills Molding, Inc., please:
(a) State the facts that support your contention; and
[ANSWER: See BH Molding 1–534.]
(b) Identify all documents that support your contention.
[ANSWER: See BH Molding 1–534.]
INTERROGATORY NO. 7: For the inventory made the basis of this
suit, please:
(a) Identify the date(s) on which the inventory was ordered; and
[ANSWER: See BH Molding 532 and 533.]
(b) Identify whether the inventory was ordered by Brandom
Southwest, LP or Brandom Holdings, LLC.
[ANSWER: Ordered by Brandom Holdings.]
INTERROGATORY NO. 8: If you contend that Black Hills Molding,
Inc. has mitigated or attempted to mitigate its alleged damages in
this suit, please:
(a) State the facts that support your contention; and
[ANSWER: Yes to date Black Hills Molding has sold 647
19

pieces of item BF725RL7¼” height by x 4’ long 1-E. random
Length material.]
(b) Identify all documents that support your contention.
[ANSWER: When the invoices are prepaid we will provide
them.]
Brandom’s sixth, seventh, and eighth interrogatories are contention
interrogatories seeking to elicit information bearing on the Black Hills
Molding’s alleged damage calculations. Under Federal Rule of Civil Procedure
26(a)(1)(A)(iii),
a computation of each category of damages claimed by the
disclosing party—who must also make available for inspection and
copying . . . the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each computation
is based, including material bearing on the nature and extent of
injuries suffered.
FED. R. CIV. P. 26(a)(1)(A)(iii).
With respect to the sixth interrogatory, Brandom is seeking information
bearing on the amount and methods by which Black Hills Molding is
calculating its alleged damages. Such information is directly relevant to
Brandom’s determination of how Black Hills Molding is calculating its alleged
damages in the instant suit. In order for Brandom to independently verify or
accurately calculate the damages Black Hills Molding suffered, it must be made
aware of the methods by which Black Hills Molding is calculating its injury.
Black Hills Molding’s answer referring Brandom to the entirety of its document
production is not responsive to the interrogatory. Moreover, Black Hills is not
be unduly burdened by the task of collecting and disclosing the same—it will

20

ultimately have to clear this hurdle at trial in any event. Accordingly,
Brandom’s motion to compel Black Hills Molding’s response to interrogatory six
is granted. Black Hills Molding is also ordered to sign an amended
interrogatory response in accordance with Federal Rule of Civil Procedure
33(b)(3) and (5).
Interrogatory seven, like interrogatory six, seeks to elicit information
bearing on the method by which Black Hills Molding calculates its alleged
damages. Brandom, through the identification of the dates on which the
inventory in question was ordered and the specification of which Brandom
business entity is alleged to have placed the order, is attempting to identify the
specific inventory that Black Hills Molding claims as the basis of its damage
calculation. This information is relevant to the identification of the means by
which Black Hills Molding is computing its damages, which is discoverable
under Federal Rule of Civil Procedure 26(a)(1)(A)(iii).
Black Hills Molding’s response referring Brandom to two shipping labels,
see Docket No. 28-10, page 5–6, while helpful with respect to those two specific
shipments, fails to adequately identify the purchase orders documented on
Black Hills Molding March 1, 2012 Invoice. See Docket No. 28-11. Moreover,
the referenced shipping labels provide only the date on which the inventory was
shipped, not the date on which it was ordered, which the interrogatory
requested. See Docket No. 28-1, page 6. This distinction is self-evident,
Brandom is seeking verification that the purchase order in fact exists, not

21

merely that Black Hills Molding shipped inventory to it. Black Hills Molding is
not unduly burdened by this request. Accordingly, Brandom’s motion to
compel Black Hills Molding’s response to interrogatory seven is granted. Black
Hills Molding is also ordered to sign an amended interrogatory response in
accordance with Federal Rule of Civil Procedure 33(b)(5).
With respect to interrogatory eight, Brandom raises no objection to the
Black Hills Molding’s response therein. See Docket No. 29. Accordingly, the
court will require no further action with regard to interrogatory eight, except to
remind Black Hills Molding of its ongoing duty to supplement its disclosures
when the relevant invoices are prepaid or when other steps to mitigate are
taken. See FED. R. CIV. P. 26(e)(1)(A). However, Black Hills Molding is required
to sign an amended interrogatory response in accordance with Federal Rule of
Civil Procedure 33(b)(3) and (5).
iv.

Interrogatory 9-10

INTERROGATORY NO. 9: If you contend that Black Hills Molding,
Inc. provided Brandom Holdings, LLC with a copy of the Brandom
Southwest LP Non-circumvention & Sales Agreement dated July
10, 2006, attached hereto as Exhibit A, prior to March 12, 2012,
please:
(a) State the facts that support your contention; and
[ANSWER: No Black Hills Molding never provided Brandom
Holdings with a copy of the Non-circumvention & Sales
Agreement, Brandom never asked for such an agreement.
However, Matt Collins the purchase manager in 2009 and
his father Andy Collins were both with Brandom Southwest
and thereafter Brandom Holdings. Matt Collins was the
purchase manager during the transition from Southwest to
Holdings and Andy Collins, the person who signed the Noncircumvention & Sales Agreement was the President of
22

Southwest and is now believed to be a shareholder of
Holdings.]
(b) Identify all documents that support your contention.
[ANSWER: See BH Molding 1–534 and Non-circumvention
and Sales Agreement.]
INTERROGATORY NO. 10: If you contend that Black Hills Molding,
Inc. informed Brandom Holdings, LLC about the existence of the
Brandom Southwest LP Non-circumvention & Sales Agreement
dated July 10, 2006, attached hereto as Exhibit A, prior to March
12, 2012, please:
(a) State the facts that support your contention; and
[ANSWER: See BH Molding 1–534.]
(b) Identify all documents that support your contention
[ANSWER: See BH Molding 1–534.]
Brandom’s ninth and tenth interrogatories seek to elicit information from
Black Hills Molding regarding whether Brandom Holdings, LLC or its
predecessor, Brandom Southwest, LP, were either informed of or provided a
copy of the Brandom Southwest LP Non-circumvention & Sales Agreement.
Information regarding whether Brandom is contractually obligated to purchase
the inventory in question bears directly on Brandom’s choice of defense and
proof required to rebut the alleged breach of contract claim. Therefore, the
interrogatories are relevant and within the scope of discovery.
With respect to interrogatory nine, Brandom raises no objection to the
Black Hills Molding’s response therein. See Docket No. 29. Accordingly, the
court will require no further action with regard to interrogatory nine, except

23

that Black Hills Molding must sign an amended interrogatory responses in
accordance with Federal Rule of Civil Procedure 33(b)(3) and (5).
With respect to interrogatory ten, Black Hills Molding referred Brandom
to the entirety of its document production. This is an overly broad and
unresponsive answer to the interrogatory. Moreover, Black Hills Molding is not
unduly burdened by the task of responding to and providing supporting
documentation that it informed Brandom of the July 10, 2006, Brandom
Southwest LP Non-circumvention & Sales Agreement prior to March 12, 2013.
Accordingly, Brandom’s motion to compel Black Hills Molding’s response to
interrogatory ten is granted. Additionally, Black Hills Molding is ordered to
sign the amended interrogatory response in accordance with Federal Rule of
Civil Procedure 33(b)(3) and (5).
b. Brandom Holding’s Requests for Production
i.

Request for Production 1

REQUEST FOR PRODUCTION NO. 1: Please produce all
documents identified in your responses to Defendant Brandom
Holdings, LLC’s First Set of Interrogatories.
[ANSWER: See BH Molding 1–534.]
Brandom’s first RFP seeks the production of the documents identified by
Black Hills Molding in its responses to Brandom’s interrogatories. Black Hills
Molding responded by referring Brandom to the entirety of its document
production. This is not a sufficient response as the court has already found
each of Brandom’s ten interrogatories to be relevant to the issues of the case.

24

See supra Part 4.a.i–iv. As such, following Black Hills Molding responding to
Brandom’s interrogatories in accordance with this order, any document
identified in the amended response to an interrogatory must be identified and
provided to Brandom if it has not already been produced. Black Hills Molding
is not unduly burdened by the task of producing these documents. Therefore,
Brandom’s motion to compel information responsive to RFP one is granted. If
Black Hills Molding cannot produce the requested documents, it must
conclusively state that it does not possess them.
ii.

Request for Production 2-3

REQUEST FOR PRODUCTION NO. 2: Please produce all
documents comprising or reflecting communications between
Black Hills Molding, Inc. and Brandom Southwest, LP for the
period of 2006 through 2009.
[ANSWER: See BH Molding 1–534.]
REQUEST FOR PRODUCTION NO. 3: Please produce all
documents comprising or reflecting communications between
Black Hills Molding, Inc. and Brandom Holdings, LLC for the
period of 2009 through the inception of this litigation.
[ANSWER: See BH Molding 1–534.]
In RFP two and three, Brandom seeks the production of all documents
comprising or reflecting communications between Black Hills Molding and
Brandom Southwest, LP from 2006 through 2009 and between Black Hills
Molding and Brandom Holdings, LLC from 2009 through the inception of the
current litigation. Communications between Brandom and Black Hills Molding

25

are clearly relevant to claims and defenses of the present dispute. See FED. R.
CIV. P. 26(b)(1).
Here, Black Hills Molding referred Brandom to the entirety of its
document production, which “consist[s] only of an incomplete set of emails, all
dated between 2009 and 2012.” Docket No. 29 (The court notes that Black Hills
Molding made no objection to this characterization of its document production
in its response brief.). Although certain documents within the referenced
amalgamation of emails are responsive to the RFPs, Black Hills Molding’s
response is deficient and must be supplemented.10 Black Hills Molding is not
unduly burdened by the production of these documents. Therefore, Brandom’s
motion to compel documents responsive to RFP two and three is granted. If
Black Hills Molding cannot produce the requested documents, it must
conclusively state that it does not possess them.
iii.

Request for Production 4-7

REQUEST FOR PRODUCTION NO. 4: Please produce all
documents comprising or reflecting orders of product from Black
Hills Molding, Inc. by Brandom Southwest, LP for the period of
2006 through 2009.
[ANSWER: See BH Molding 1–534.]
REQUEST FOR PRODUCTION NO. 5: Please produce all
documents comprising or reflecting payment for orders of product
For example, the court has already found that Black Hills Molding’s
answers to interrogatories four, five, seven, and ten to be unresponsive. See
supra Part 4.a.i–iv. A responsive answer to these interrogatories will likely
include information, communications, or documents not contained in Black
Hills Molding’s initial 534 page disclosure. To the extent additional
communications between Black Hills Molding and Brandom Holdings, LLC and
Brandom Southwest, LP are found and/or referenced, they must be produced.
26
10

from Black Hills Molding, Inc. by Brandom Southwest, LP for the
period of 2006 through 2009.
[ANSWER: See BH Molding 1–534.]
REQUEST FOR PRODUCTION NO. 6: Please produce all
documents comprising or reflecting orders of product from Black
Hills Molding, Inc. by Brandom Holdings, LLC for the period of
2009 through the inception of this litigation.
[ANSWER: See BH Molding 1–534.]
REQUEST FOR PRODUCTION NO. 7: Please produce all
documents comprising or reflecting payment for orders of product
from Black Hills Molding, Inc. by Brandom Holdings, LLC for the
period of 2009 through the inception of this litigation.
[ANSWER: See BH Molding 1–534.]
In RFP four, five, six, and seven, Brandom seeks the production of
documents from Black Hills Molding regarding Brandom’s orders and
payments for orders from 2006 through the inception of the current litigation,
whether those orders or payments were made by Brandom Southwest, LP or by
Brandom Holdings, LLC. In each RFP, Black Hills Molding referred Brandom
to the entirety of its document production. See Docket No. 28-7, pg. 6–7.
Again, this information is relevant to the claims and defenses of the suit. See
FED. R. CIV. P. 26(b)(1). Brandom is seeking to obtain information relevant to
Black Hills Molding’s allegation that Brandom is obligated to purchase the
excess inventory plaintiff purchased for Brandom.
Black Hills Molding is not unduly burdened by the production of these
documents. Therefore, Brandom’s motion to compel documents responsive to
RFP four, five, six and seven is granted. If Black Hills Molding cannot produce
27

the requested documents, it must conclusively state that it does not possess
them.
iv.

Request for Production 8

REQUEST FOR PRODUCTION NO. 8: Please produce all internal
emails of Black Hills Molding, Inc. from 2006 through the
inception of this litigation that include any reference to Brandom
Southwest, LP.
[ANSWER: We are still looking for these.]
RFP eight seeks all Black Hills Molding internal emails making any
reference to Brandom Southwest, LP. Black Hills Molding responded by
notifying Brandom that it is still looking for the emails in question. Black Hills
Molding did not object to this request as unduly burdensome. See Docket No.
28-7, page 7. Over four months has elapsed since Black Hills Molding provided
this response. The court finds that sufficient time has passed for Black Hills
Molding to locate the relevant emails. Therefore, Brandom’s motion to compel
information responsive to RFP eight is granted. If Black Hills Molding cannot
produce the requested documents, it must conclusively state that it does not
possess them.
v.

Request for Production 9-10

REQUEST FOR PRODUCTION NO. 9: Please produce all
documents comprising, related to, or reflecting drawer stocking
plans from Brandom Southwest, LP to Black Hills Molding, Inc.
[ANSWER: See BH Molding 1–534.]
REQUEST FOR PRODUCTION NO. 10: Please produce all
documents comprising, related to, or reflecting drawer stocking
plans from Brandom Holdings, LLC to Black Hills Molding, Inc.

28

[ANSWER: See BH Molding 1–534.]
In RFP nine and ten, Brandom seeks the production of documents
concerning the drawer stocking plans that Black Hills Molding used for
Brandom, including both Brandom Southwest, LP and Brandom Holdings,
LLC. This information is relevant both to Brandom’s defense of Black Hills
Molding’s claims and in identifying the basis by which Black Hills Molding is
calculating its damages. See FED. R. CIV. P. 26(a)(1)(A)(iii) and (b)(1).
Black Hills Molding responded by referring Brandom to the entirety of its
document production. Information regarding the drawer stocking plans of
Black Hills Molding may bear on whether Brandom was in fact obligated to
purchase the inventory, and, if Brandom was obligated to purchase the
inventory, the extent thereof. Black Hills Molding is not unduly burdened by
the production of these documents. Accordingly, Brandom’s motion to compel
information responsive to RFP nine and ten is granted. If Black Hills Molding
cannot produce the requested documents, it must conclusively state that it
does not possess them.
vi.

Request for Production 11

REQUEST FOR PRODUCTION NO. 11: Please produce all internal
emails of Black Hills Molding, Inc. from 2006 through the
inception of this litigation that include any reference to Brandom
Holdings, LLC.
[ANSWER: See BH Molding 1–534.]
In RFP eleven, Brandom seeks the production of documents representing
all of Black Hills Molding’s internal emails containing any to reference
29

Brandom Holdings, LLC from 2006 through the inception of the current
litigation. Black Hills Molding responded by referring Brandom to the entirety
of its document production.
Black Hills Molding internal emails referencing Brandom are relevant
under Federal Rule of Civil Procedure 26(b)(1) because the disclosure of such
emails is “reasonably calculated to lead to the discovery of admissible
evidence.” FED. R. CIV. P. 26(b)(1). Moreover, Black Hills Molding did not object
to this request as unduly burdensome. See Docket No. 28-7, page 7. Thus,
Brandom’s motion to compel information responsive to RFP eleven is granted.
If Black Hills Molding cannot produce the requested documents, it must
conclusively state that it does not possess them.
vii.

Request for Production 12-13

REQUEST FOR PRODUCTION NO. 12: Please produce all
documents related to the Brandom Southwest LP Noncircumvention & Sales Agreement dated July 10, 2006, attached
hereto as Exhibit A.
[ANSWER: See BH Molding 1–534.]
REQUEST FOR PRODUCTION NO. 13: Please produce all
documents in which Black Hills Molding, Inc. communicated to
Brandom Southwest [sic], LLC the existence of the Brandom
Southwest LP Non-circumvention & Sales Agreement dated July
10, 2006, attached hereto as Exhibit A.
[ANSWER: See BH Molding 1–534.]
In RFP twelve and thirteen, Brandom seeks the production of documents
related to the Brandom Southwest LP Non-circumvention & Sales Agreement.
Under Federal Rule of Civil Procedure 26(b)((1), “[p]arties may obtain discovery

30

regarding any nonprivileged matter that is relevant to any party’s claim or
defense.” FED. R. CIV. P. 26(b)(1). The Brandom Southwest LP Noncircumvention & Sales Agreement is at the crux of the current litigation.
Accordingly, any documents related to it or communicating its existence to
Brandom are relevant to both Black Hills Molding’s breach of contract and
promissory estoppel claims, as well as Brandom’s defense of the same. Black
Hills Molding is not unduly burdened by the production of such documents.
Therefore, Brandom’s motion to compel documents responsive to RFP twelve
and thirteen is granted. If Black Hills Molding cannot produce the requested
documents, it must conclusively state that it does not possess them.
viii. Request for Production 14-15
REQUEST FOR PRODUCTION NO. 14: Please produce all
documents reflecting your mitigation or attempted mitigate [sic] of
the alleged damages made the basis of this suit.
[ANSWER: These will be provided when the invoices are
prepaid.]
REQUEST FOR PRODUCTION NO. 15: Please produce all
documents supporting your computation of damages.
[ANSWER: See BH Molding 534.]
In RFP fourteen, Brandom seeks the production of documents reflecting
the mitigation or mitigation attempts made by Black Hills Molding with respect
to the damages alleged in this suit. Black Hills Molding responded that any
such documents “will be provided when the invoices are prepaid.” Docket No.
28-7. Importantly, a party must disclose “the documents or other evidentiary

31

material . . . on which each computation is based, including material bearing
on the nature and extent of injuries suffered.” FED. R. CIV. P. 26(a)(1)(A)(iii)
(emphasis added). Moreover, under Federal Rule of Civil Procedure 26(e)(1) (A),
a party “must supplement or correct its disclosure or response: in a timely
manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect.” FED. R. CIV. P. 26(e)(1)(A) (emphasis
added).
Documents reflecting the mitigation or attempted mitigation efforts of
Black Hills Molding bear on the extent of the damages it actually suffered with
respect to the instant suit. Over four months have passed since Black Hills
Molding provided this response, and it has not supplemented its answer.
Black Hills Molding is not unduly burdened by the production of these
documents. Therefore, Brandom’s motion to compel documents responsive to
RFP fourteen is granted. If Black Hills Molding cannot produce the requested
documents, it must conclusively state that it does not possess them.
With respect to RFP fifteen, Brandom seeks the production of documents
supporting Black Hills Molding’s computation of damages. Black Hills Molding
responded by referring Brandom to a single page of its document production.
Docket No. 28-7, page 8. As previously noted, the basis by which Black Hills
Molding computes its alleged damages is relevant to the current suit and
should have been disclosed to Brandom as a part of Black Hill’s Molding’s
initial disclosures. See FED. R. CIV. P. 26(a)(1)(A)(iii). Black Hills Molding is not

32

unduly burdened by the production of these documents. To the extent Black
Hill’s Molding’s disclosure of the basis of its damage computation is deficient,
Brandom’s motion to compel documents responsive to RFP fifteen is granted. If
Black Hills Molding cannot produce the requested documents, it must
conclusively state that it does not possess them.
Additionally, to the extent that categories one through six of the initial
disclosures, as identified by Brandom in its motion to compel discovery
responses, see Docket No. 29, pg. 9, seek relevant information not already
requested in the above interrogatories and RFPs, Brandom’s motion to compel
is granted. If Black Hills Molding cannot produce the requested documents, it
must conclusively state that it does not possess them.
C.

Timeliness of Plaintiff’s Response to Defendant’s Requests for
Admission
For the reasons set forth below, the court finds that Black Hills Molding

denied Brandom’s third, fifth, sixth, seventh, eighth, and ninth RFA.
Under Federal Rule of Civil Procedure 36(a)(3),
“[a] matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the requesting
party a written answer or objection addressed to the matter and
signed by the party or its attorney. A shorter or longer time for
responding may be stipulated to under Rule 29 or be ordered by
the court.
FED. R. CIV. P. 36(a)(3); see also Quasius v. Schwan Food Co., 596 F.3d 947,
950 (8th Cir. 2010). “When a matter is admitted, it is ‘conclusively established’
for purposes of the action, ‘unless the court, on motion permits the admission

33

to be withdrawn or amended.’” Quasius, 596 F.3d at 947 (quoting FED. R. CIV.
P. 36(b)).
However, the Eighth Circuit has generously interpreted a party’s ability
to amend and withdraw its admissions “on motion” under Rule 36(b). See id.
at 951–52. Specifically, the Eighth Circuit has held that, “[t]o allow a late filing
of answers (to a request for admissions) is the equivalent of allowing a party to
withdraw admissions made by operation of Rule 36(a).” Warren v. Int’l Bhd. of
Teamsters, Chauffers, Warehousemen & Helpers, 544 F.2d 334, 339 (8th Cir.
1976) (quoting Pleasant Hill Bank v. United States, 60 F.R.D. 1, 3 (W.D. Mo.
1973) (comparing the late filing of responses to requests for admission when
they were provided in conjunction with similar earlier denials (Warren) with a
motion to file out of time answers to requests for admissions (Pleasant Hill)—
both were admitted as timely)).
“Because the district court has the power to allow a longer time [for a
response] . . . the court, in its discretion, may permit the filing of an answer
that would otherwise be untimely.” Gutting v. Falstaff Brewing Corp., 710 F.2d
1309, 1313 (8th Cir. 1983) (citing Moosman v. Joseph P. Blitz Inc., 358 F.2d
686, 688 (2d Cir. 1966); Pleasant Hill Bank, 60 F.R.D. at 2–3; 8B CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, supra ' 2257, at 340–48).
Thus, the court is not automatically required to deem all matters admitted.
Gutting, 710 F.2d at 1312 (citations omitted); see also Manatt v. Union Pac.
R.R. Co., 122 F.3d 514, 517 (8th Cir. 1997) (citations omitted). Rather, “[t]he

34

court may permit withdrawal or amendment when the presentation of the
merits of the action will be subserved thereby and the party who obtains the
admission fails to satisfy the court that withdrawal or amendment will
prejudice him in maintaining his action or defense on the merits.” Warren v.
Int’l Bhd. of Teamsters, Chauffers, Warehousemen & Helpers, 544 F.2d 334,
340 (8th Cir. 1976) (quoting Pleasant Hill Bank, 60 F.R.D. at 3) (internal
quotation marks omitted); see also FED. R. CIV. P. 36(b). With regard to the
second prong, “[t]he prejudice contemplated by the rule ‘relates to the difficulty
a party may face in proving its case’ because of the sudden need to obtain
evidence required to prove the matter that had been admitted.” Gutting, 710
F.2d at 1314 (quoting Brook Vill. N. Assocs. v. Gen. Electric Co., 686 F. 2d 66,
70 (1st Cir. 1982)).
In this case, Black Hills Molding failed to serve Brandom with its
responses to Brandom’s RFAs by the close of business on July 2, 2013, the
mutually agreed upon, extended deadline for Black Hills Molding to respond.
See Docket No. 28-6. Black Hills Molding served Brandom with its responses
to the RFAs on July 3, 2013, one day after the stated deadline. Docket No.
28-7. Black Hills Molding also, in its reply to Brandom’s motion to compel,
requested this court to deem its responses to the RFAs as timely. Docket No.
33. This court finds that Black Hills Molding, by operation of Federal Rule of
Civil Procedure 36(a)(3), has admitted to each of the RFAs by failing to serve its
responses on Brandom within the agreed upon time.

35

However, in light of the Eighth Circuit’s liberal interpretation of “on
motion” under Federal Rule of Civil Procedure 36(b), see supra, this court will
construe Black Hills Molding’s day-late response to Brandom’s RFAs, in
conjunction with its subsequent request that its responses be deemed timely,
as a motion before the court to withdraw its admission to Brandom’s third,
fifth, sixth, seventh, eighth, and ninth RFAs.11
As previously mentioned, the court is permitted to allow a party to
withdraw or amend its RFA responses “when the presentation of the merits of
the action will be subserved thereby and the party who obtains the admission
fails to satisfy the court that withdrawal or amendment will prejudice him in
maintaining his action or defense on the merits.” Pleasant Hill Bank v. United
States, 60 F.R.D. 1, 3 (W.D. Mo. 1973).
First, the court, by allowing Black Hills Molding to withdraw its
admission to the third, fifth, sixth, seventh, eighth, and ninth RFA, is
preserving the “presentation of the merits in issue.” Id. The court, should it
refuse to grant Black Hills Molding’s withdrawal of admission to the third,
seventh, eighth, and ninth RFA, would undercut the plaintiff’s ability to
demonstrate the merits of its breach of contract claim. Similarly, if the court
denied Black Hills Molding request to withdraw its admission to the fifth, sixth,
eighth, and ninth RFA, plaintiff’s ability to demonstrate the merits of its
promissory estoppel claim would be substantially impeded. The court finds
The court notes that Black Hills Molding admitted to Brandom’s first,
second, and fourth RFAs, so it need not consider whether Black Hills Molding
made a motion to withdraw its admission with respect to these RFAs. See
Docket No. 28-7.
36
11

that “an unjustified suppression of the merits” of Black Hills Molding’s claim
would result if it refused to grant plaintiff’s request to withdraw and amend the
aforementioned RFA responses. Id. at 4.
Second, the court finds that Brandom is not prejudiced by Black Hills
Molding’s subsequent withdrawal and amendment of its RFA responses. Black
Hill’s Molding served its RFA responses on Brandom one day after the
expiration of the agreed upon deadline. It is unlikely that Brandom faced a
new “sudden need to obtain evidence required to prove the matter that had
been admitted” following this de minimus one-day delay. See Gutting v. Falstaff
Brewing Corp., 710 F.2d 1309, 1314 (8th Cir. 1983). This is especially true
when these RFAs were carefully drafted to elicit information bearing on the
crux of Black Hills Molding’s breach of contract and promissory estoppel
claims, which Brandom has had notice of since June 12, 2012. See Docket No.
1-1. Accordingly, the court grants Black Hills Molding’s request to withdraw
and amend its responses to Brandom’s third, fifth, sixth, seventh, eighth, and
ninth RFAs with its July 3, 2013 responses.
D.

Reconvening the Defendant’s 30(b)(6) Deposition
The Federal Rule of Civil Procedure 30(b)(6) Deposition between Brandom

and Black Hills Molding’s corporate representative, in conjunction with a
subpoena duces tecum will be reconvened. The first Rule 30(b)(6) deposition
between Brandom and Black Hills Molding’s corporate representative was
originally scheduled for June 28, 2013, but it was postponed until after the

37

discovery deadline to allow Black Hills Molding’s counsel time to furnish
discovery to Brandom in advance of the deposition. See Docket No. 28-6.
On June 26, 2013, Brandom issued a properly noticed Second Amended
Notice of a Rule 30(b)(6) Deposition with an appropriate subpoena duces tecum
scheduled for July 11, 2013. Docket No. 28-5. The subpoena duces tecum
requested that the corporate representative for Black Hills Molding bring all
documents reviewed in advance of the deposition, as well as all documents
containing information bearing on the stated subjects. See supra. However, at
the July 11, 2013 deposition, the Black Hills Molding corporate representative
failed to bring with him any of the documents required by the subpoena duces
tecum. See Docket 29, page 15.
After approximately ninety minutes of questioning, Brandom’s counsel
suspended the deposition. Id. Brandom’s counsel stated that it was
significantly hindered in its ability to fully depose Black Hills Molding’s
corporate representative due to the representative’s failure to supply the
requested documents, in accordance with the subpoena duces tecum. Id.
The court orders the Federal Rule of Civil Procedure 30(b)(6) deposition
between Brandom and Black Hills Molding’s corporate representative(s)
reconvened at a mutually agreeable time and location, and the Black Hills
Molding corporate representative(s) are ordered, under a subpoena duces
tecum, to bring all documents to the deposition that were originally requested

38

by Brandom in its Second Amended Notice of Rule 30(b)(6) Deposition. Docket
No. 28-5.
E.

Sanctions in the Form of Attorney’s Fees and Expenses
Federal Rule of Civil Procedure 37(a)(5) provides, in pertinent part, as

follows:
If the motion [to compel discovery] is granted—or if the disclosure
or requested discovery is provided after the motion was filed—the
court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. But the court must not order this
payment if:
(i)

the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without
court action;

(ii)

the opposing party’s nondisclosure, response, or
objection was substantially justified; or

(iii)

other circumstances make an award of expenses
unjust.

See FED. R. CIV. P. 37(a)(5)(A) (emphasis added).
The responsibility of a court to assess expenses, including attorney’s
fees, is mandatory—the rule uses the word “must”—unless one of three
exceptions applies. Id. The first exception does not apply as counsel for
Brandom has certified to the court that it made good faith efforts to resolve this
matter without the court’s intervention prior to filing the motion. See Docket
Nos. 28-4, 28-8. Brandom’s counsel repeatedly, through in-person, letter,
telephonic, and electronic communications, contacted counsel for Black Hills
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Molding with their discovery requests and proposed plans to resolve the
discovery dispute prior to filing the instant motion to compel. See Docket No.
28.
Counsel for Black Hills Molding has engaged in a pattern of providing
evasive and incomplete responses12 to discovery requests in this case. See
Docket No. 28. Notably, the vast majority of Brandom’s May 30, 2013,
discovery requests remain unanswered. See Docket No. 28-7. Additionally,
Brandom’s July 16, 2013 request to Black Hills Molding that it supplement its
initial disclosures has gone largely unheeded. See Docket Nos. 28-8, 28-9.
Black Hills Molding has provided no indication to the court regarding the
reasons it failed to appropriately respond to many of Brandom’s discovery
requests, which were served on May 30, 2013. Moreover, Black Hills Molding
has failed to adequately supplement its January 18, 2013, initial disclosures.
See Docket No. 28-8. Therefore, the court finds no substantial justification for
Black Hills Molding’s nondisclosure.
An award of expenses is not unjust under Federal Rule of Civil Procedure
37(a)(5)(A)(iii). Black Hills Molding has failed to provide answers responsive to
Brandom’s obviously relevant discovery requests. The information that
Brandom has requested bears directly on many of the potential defenses it
could raise in response to the claims brought by Black Hills Molding.

See FED. R. CIV. P. 37(a)(4) (“[A]n evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer, or
respond.”).
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12

Accordingly, Brandom’s motion for reasonable expenses and attorney’s fees
incurred in filing this motion to compel is granted.
The court reminds Black Hills Molding that a failure to comply with this
discovery order may result in sanctions under Federal Rule of Civil Procedure
37(b)(2)(A), which can include the dismissal of claims or the entering of orders
deeming certain matters admitted for purposes of trial or ordering certain
evidence inadmissible at trial.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the defendant’s motion to compel responses to its
interrogatories, RFPs, RFAs, and initial disclosures [Docket No. 26] is granted
in part and denied in part as described below:
(1) As to the interrogatories, plaintiff shall immediately serve amended
responses to all of defendants’ interrogatories in accordance with the
above discussion. These amended responses must be signed, under
oath, by the party itself in accordance with Federal Rule of Civil
Procedure 33(b)(3) and (5). In addition, the substantive answers to
the specific interrogatories discussed in the body of this opinion must
be provided.
(2) In regards to the RFPs, defendant’s motion to compel is granted in its
entirety. If the plaintiff does not possess the requested documents, it
must conclusively state as much.

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(3) In regards to defendant’s motion to compel information that
supplements plaintiff’s initial disclosures, that motion is granted, to
the extent plaintiff has not already provided the information via its
amended responses to defendant’s interrogatories or RFPs.
Plaintiff shall disclose its complete responses to the foregoing by no later than
thirty days from the date of this order. It is further
ORDERED that defendant’s motion to deem as admitted the plaintiff’s
responses to defendant’s RFAs is denied. It is further
ORDERED that plaintiff’s motion to have its responses to RFA three, five,
six, seven, eight, and nine deemed denied [Docket No. 33] is granted. Each of
plaintiff’s July 3, 2013, responses to defendants RFAs stands as stated by
plaintiff. It is further
ORDERED that the Federal Rule of Civil Procedure 30(b)(6) Deposition,
with a subpoena duces tecum as to the corporate representative of Black Hills
Molding, be reconvened at a mutually agreeable time and location. It is further
ORDERED that the defendant shall be entitled to reasonable attorney’s
fees and costs for bringing this motion to compel. Defendant shall file an
affidavit with proof of service setting forth the time reasonably spent on this
motion, the hourly rate requested for attorney’s fees, and costs, as well as any
factual matters pertinent to the motion for attorney’s fees within fourteen (14)
calendar days of this order. Plaintiff shall file any and all objections to the
allowance of fees within fourteen (14) calendar days after receipt of service of

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defendant’s motion and affidavit. Plaintiff may, by counter affidavit, controvert
any of the factual matters contained in defendant’s motion and may assert any
factual matters bearing on the award of attorney’s fees. D.S.D. LR 3054.1(C).
Defendant shall have seven (7) calendar days thereafter to file a reply.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. § 636(b)(1)(A) (2006). Failure to file timely objections will
result in the waiver of the right to appeal questions of fact. See FED. R. CIV. P.
72(a). Objections must be timely and specific in order to require review by the
district court. See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990) (per curiam);
Nash v. Black, 781 F.2d 665 (8th Cir. 1986).
Dated November 19, 2013.
BY THE COURT:
/s/

Veronica L. Duffy

VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE

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