Koshani v. Barton et al (TWP2)

Filing 91

MEMORANDUM AND ORDER: The trial set for November 6, 2018, is hereby CANCELED and CONTINUED to February 19, 2019. Signed by Magistrate Judge H Bruce Guyton on 9/19/18. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SHAFIQULLAH KOSHANI,
Plaintiff,
v.
ERIC WAYNE BARTON and VANQUISH
WORLDWIDE, LLC,
Defendants.

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No. 3:17-CV-265-TWP-HBG

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), the Rules of this Court,
and Standing Order 13-02.
Now before the Court are the following Motions: (1) Plaintiff’s Motion for Leave to File
Under Seal Exhibit K-S to the Motion to Compel [Doc. 69], (2) Plaintiff’s Motion to Compel [Doc.
71], (3) Plaintiff’s Motion to Compel Responses to His Second and Third Sets of Interrogatories
and Requests for Production of Documents [Doc. 81], and (4) Defendants’ Motion to Extend
Discovery Deadline, Continue Trial Date and Modify Scheduling Order [Doc. 84] (“Motion to
Extend”). The parties appeared before the undersigned for a motion hearing on September 10,
2018. Attorney Tillman Finley appeared on behalf of Plaintiff. Attorney Michael Malone and
Garrett Swartwood appeared on behalf of Defendants. Accordingly, for the reasons further
explained below, Plaintiff’s Motion for Leave to File Under Seal [Doc. 69] is DENIED AS
MOOT, Plaintiff’s Motions to Compel [Docs. 71, 81] are GRANTED IN PART AND DENIED
IN PART, and Defendants’ Motion to Extend [Doc. 84] is GRANTED.

I.

BACKGROUND
The Complaint in this case was filed on June 20, 2017, and later amended [Doc. 41] on

February 9, 2018. The Amended Complaint alleges that the action arises from Defendants’ refusal
to comply with their contractual, fiduciary, and other legal obligations to Plaintiff resulting from
a joint venture partnership established by Plaintiff and Defendant Barton to conduct business
together in Afghanistan. [Doc. 41 at ¶ 1]. Plaintiff alleges that instead of honoring their
commitments and legal obligations to Plaintiff, Defendants acted as if the partnership between
Plaintiff and Defendant Barton did not exist and appropriated Plaintiff’s contributions and
investment in the partnership and all business opportunities in Afghanistan for their own benefit.
[Id.].
Specifically, the Amended Complaint states that in 2010, Plaintiff and Defendant Barton
agreed to form a joint venture partnership to provide services for profit in Afghanistan and that
they established a partnership and registered their business with the Afghan government, calling
their company “Vanquish Worldwide.” Plaintiff and Defendants proceeded to pursue a substantial
contract for the provision of line haul services to the United States and coalition forces in
Afghanistan, the National Afghan Trucking (“NAT”) contract. [Id.].
The Amended Complaint states that instead of submitting a proposal on behalf of the
parties’ joint venture partnership, Vanquish Worldwide, Defendant Barton submitted that proposal
for the trucking contract in the name of his own American company with a nearly identical name,
Vanquish Worldwide L.L.C. (“Vanquish”). [Id. at ¶ 3]. The United States awarded the contract
to Defendant Vanquish. [Id. at ¶ 4]. After Plaintiff discovered the deception, Plaintiff insisted
that they proceed with the venture as partners as they had originally agreed. [Id.]. Defendants
agreed, and the parties signed a Profit Sharing Agreement by which they reiterated their agreement

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to conduct business operations together in Afghanistan and that all operations would be contracted
under the name of the parties’ joint venture partnership, Vanquish Worldwide. [Id.].
The Amended Complaint states that after the operation was established and Defendant
Vanquish began receiving payments under the contract, Defendants froze Plaintiff out of the
business, returning to him a portion of the funds that he had invested but refused to return the
balance of Plaintiff’s capital investment and to remit to him his share of the profits obtained from
the contract. [Id. at ¶ 5].
Plaintiff brings this action to enforce his rights against Defendants Barton and Vanquish
under the parties’ partnership and the profit sharing agreement and the laws of Afghanistan. [Id.
at ¶ 6]. Specifically, Plaintiff seeks to recover his rightful share of the profits on the NAT contract
and other business opportunities in Afghanistan that Defendants usurped for themselves in breach
of their obligations to Plaintiff, to recover for Defendants’ appropriation and use of Plaintiff’s
substantial investments and contributions to their business operations in Afghanistan, and to obtain
an accounting of Defendants’ business operations in Afghanistan. [Id.].
II.

ANALYSIS
The Court has considered the parties’ filings, in addition to the oral arguments presented

at the hearing. For the reasons explained below, Plaintiff’s Motion for Leave to File Document
Under Seal [Doc. 69] is DENIED AS MOOT, Plaintiff’s Motions to Compel [Docs. 71, 81] are
GRANTED IN PART, and Defendants’ Motion [Doc. 84] is GRANTED.
Federal Rule of Civil Procedure 26(b)(1) provides as follows:
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 and
proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the parties' resources,
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the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely
benefit.
Courts have explained that the “scope of discovery under the Federal Rules of Civil
Procedure is traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D.
240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir.
1998)). Courts have cautioned, however, that “[d]iscovery requests are not limitless, and parties
must be prohibited from taking ‘fishing expeditions’ in hopes of developing meritorious claims.”
Bentley v. Paul B. Hall Reg'l Med. Ctr., No. 7:15-CV-97-ART-EBA, 2016 WL 7976040, at *1
(E.D. Ky. Apr. 14, 2016). “[T]he [C]ourt retains the final discretion to determine whether a
discovery requests is broad or oppressive.” Id. (citing Surles v. Greyhound Lines, Inc., 474 F.3d
288, 305 (6th Cir. 2007)).
Given the above guidance, the Court will now turn to the instant Motions. The Court will
address the Motions in the order in which they were filed.
A.

Plaintiff’s Motion to Seal [Doc. 69]

Plaintiff requests to file under seal excerpts of Exhibit K to his Motion to Compel.
Specifically, these excerpts are from the deposition of Anna Love, the Chief Financial Officer of
Vanquish. [Doc. 70]. Plaintiff filed certain portions of Love’s deposition under seal because
Defendants designated such portions as “Outside Counsel Eyes Only.” Defendant did not respond
to the Motion.1

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Defendants are directed to the Memorandum and Order Regarding Sealing Confidential
Information [Doc. 6]. The Memorandum and Order states, “In the event a party moves to file
under seal information which has been designated as confidential by someone else . . ., the party
who has designated the information as confidential will have fourteen days from service of the
motion to seal to file: (a) a response indicating whether the party supports the motion to seal, and
(b) if the response is in the affirmative, any declarations or other papers supporting such response.
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During the hearing, Defendants stated that they do not request that the deposition be filed
under seal. Accordingly, given Defendants’ representation, Plaintiff’s Motion to Seal [Doc. 69] is
DENIED AS MOOT. The Clerk is DIRECTED to unseal Doc. 70.
B.

Plaintiff’s Motion to Compel [Doc. 71]

Plaintiff’s Motion to Compel seeks discovery responses to its interrogatories and requests
for document production. Plaintiff also requests that the Court reopen Defendant Barton’s
deposition. Further, Plaintiff argues that Defendant Vanquish failed to produce a prepared Rule
30(b)(6) witness. Defendants respond in opposition, arguing that the discovery requests are
irrelevant and overbroad in time and scope.
During the hearing, Defendants argued that Plaintiff’s discovery requests should be
temporally limited. Specifically, Defendants stated that the contracts at issue were only for three
years, and thus, any documents created after December 18, 2015, are irrelevant. Plaintiff asserted
that Defendants raised the same argument in their motion for summary judgment. Plaintiff
submitted that Defendants’ position is a merits argument that should not limit discovery at this
time. Further, Plaintiff argued that the contracts at issue continued after 2013 and that his
Amended Complaint alleges that the parties were supposed to share the profits from all the work
performed in Afghanistan.
The Court finds Defendants’ request to limit the temporal scope of the discovery requests
not well taken. Plaintiff has specifically alleged in his Amended Complaint that he is entitled to a
share of the profits on the NAT contract and other business opportunities in Afghanistan. [Doc.
41 at ¶ 6]. While the undersigned observes that Defendants have raised the same argument in
their motion for summary judgment, the Court has not ruled on that motion, and the undersigned
declines to limit discovery that is relevant to the allegations set forth in the Amended Complaint.

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Defendants also argue that Plaintiff requested Vanquish’s records as a whole company, as
opposed to information regarding Defendant Vanquish’s work in Afghanistan. Specifically, with
respect to this argument, Defendants object to the general ledger accounting data; financial
statements and reports; payments, compensation, loans, or other transfers to Defendant Barton; tax
returns; and assets, accounts, and loans. With the exception of the tax returns, the Court finds such
discovery SHALL be limited to Defendants’ business operations in Afghanistan. The Court finds
that this limitation allows Plaintiff to seek discovery that is relevant to the allegations in the
Amended Complaint and is proportional to the needs to this case. See Fed. R. Civ. P. 26(b). The
parties also dispute whether the production of Defendant Vanquish’s general ledger is sufficient
because it did not include receivables, liabilities, and funding associated with the contracts at issue.
Plaintiff explains why he needs such information (i.e., to understand how Defendant Vanquish
accounted for such items and to understand and interpret the project-specific entries). Defendants
have not rebutted Plaintiff’s statement. Accordingly, the general ledger SHALL include such
information. Further, Defendants SHALL provide the definitions of the various general ledger
accounts.
With respect to the tax returns, the Court finds Defendant Vanquish’s tax returns are
relevant, and Defendant Vanquish SHALL produce them to Plaintiff. The Court agrees with
Plaintiff that tax returns provide assurances regarding the accuracy of the information already
produced. At this time, however, the Court will not order Defendant Barton to produce his tax
returns. After reviewing Defendant Vanquish’s tax returns, if Plaintiff still believes that Defendant
Barton’s tax returns are necessary, the Court will revisit the issue via a telephonic conference with
the parties. Accordingly, Defendant Vanquish SHALL produce the requested tax returns to

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Plaintiff. Defendants may mark such records, and any other financial information produced, as
“confidential” pursuant to the protections of the Protective Order.
Plaintiff further asserts that Defendant Vanquish failed to produce a prepared Rule 30(b)(6)
witness. Specifically, Plaintiff asserts that the witness was not prepared to testify as to the revenues
on the NAT contract, Vanquish’s gross margins, or profits. Defendant Vanquish asserts that it did
provide a prepared Rule 30(b)(6) witness and that counsel simply stopped short of asking followup questions.
The Court observes that during the deposition, the Rule 30(b)(6) witness testified that she
could calculate the revenues on all of the NAT contracts thus far, “[w]ith a calculator and this
spreadsheet.” [Doc. 70 at 3]. She also testified that the company generates financial statements,
which would show the revenues for the NAT contracts for every year from 2012 to present. [Doc.
72-11 at 18]. In addition, she testified that she provided counsel a way to calculate gross margin
information. [Id. at 26]. The Court agrees with Plaintiff that the witness was not fully prepared
for her deposition. While she testified she could make such calculations, she never testified as to
the specific numbers as requested. Accordingly, the Court ORDERS Defendant Vanquish to
supplement its answers with respect to Topics 4 and 6 in the Notice of Deposition [Doc. 72-10].
Further, Plaintiff requests that Defendant Barton’s deposition be reopened. Defendants
agree to reopen Defendant Barton’s deposition but assert it should be limited to the loan
modification agreement, which was recently produced. Given that Plaintiff did not have adequate
discovery responses from Defendants when Defendant Barton’s deposition was taken, the Court
finds it appropriate to reopen Defendant Barton’s deposition and allow Plaintiff to question
Defendant Barton about the loan modification agreement and any discovery that was requested but

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not produced prior to his deposition. The Court will not order Defendants to pay for the costs of
this deposition given the genuine discovery disputes summarized above.
Finally, Plaintiff requests attorney’s fees for filing the instant Motions. If the court grants
a motion to compel or the discovery is provided after the motion was filed, the court must issue an
award of the reasonable expenses incurred in making the motion, unless the movant failed to confer
in good faith before filing the motion, the opposing party’s objection was substantially justified,
or other circumstances make an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5). The Court
declines to award attorney’s fees at this time because the parties genuinely disputed whether
Defendants’ responses were deficient and the proper scope of discovery. See Fed. R. Civ. P. 37(a)
Advisory Committee Notes to 1970 Amendment (where “the dispute over discovery is genuine,
though ultimately resolved one way or the other by the court . . . the losing party is substantially
justified in carrying the matter to court.”). Further, the Court observes that Plaintiff offered no
evidence as to his costs incurred and whether such costs were reasonable. The Court, however,
ADMONISHES Defendants that future discovery deficiencies that result in motion practice may
warrant an award of attorney’s fees.
C.

Plaintiff’s Motion to Compel Responses to Second and Third Sets of
Interrogatories and Requests for Production of Documents [Doc. 81]

In Plaintiff’s Motion to Compel, he asserts that Defendant Vanquish failed to serve
anything in response to the third set of interrogatories. In addition, Plaintiff states that Defendant
Vanquish served non-specific boilerplate objections to the second set of interrogatories but later
agreed to supplement its responses to certain interrogatories within a week. Plaintiff states that
Defendant Vanquish supplemented a month later and improperly responded to contention
interrogatories by referencing documents rather than answering the questions directly and
inexplicably omitted any supplemental response to one of the interrogatories at issue. Plaintiff
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states that Defendants promised to produce all responsive documents to a number of Plaintiff’s
document requests, but Defendants did not produce any documents. Plaintiff argues that sanctions
are proper.
Defendant Vanquish states that it responded to the third set of document requests on August
16, 2018, and that the responses were late because counsel inadvertently omitted the deadline from
the docketing system. Defendants state that much of the discovery relates to Defendant Vanquish’s
financial information, which is the subject of Plaintiff’s other Motion to Compel. In addition,
Defendants assert that Defendant Vanquish has responded fully to the second set of interrogatories
and that the interrogatories are not contention interrogatories.

Defendants assert that they

produced documents responsive to Plaintiff’s second requests for production of documents.
Defendants state that they provided numerous documents on June 15, 2018, prior to the Rule
30(b)(6) witness’s deposition, and that they made a supplemental production on August 17, 2018,
which includes all contracts in Afghanistan and all subcontracts under the NAT contract.
The Court finds that Defendants SHALL respond to Plaintiff’s discovery requests that are
subject to this Motion with the limitation set forth above. See supra Section II.B. Defendants
SHALL set forth their position with respect to the contention interrogatories. The Court agrees
with Plaintiff that providing an expansive range of documents is not a proper method to respond
to interrogatories. The Court declines to order sanctions at this time for the reasons set forth above.
Accordingly, Plaintiff’s Motion to Compel Responses to Second and Third Sets of Interrogatories
and Requests for Production of Documents [Doc. 81] is GRANTED IN PART AND DENIED
IN PART.

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D.

Defendants’ Motion to Extend Discovery Deadline, Continue Trial Date and
Modify Scheduling Order [Doc. 84]

Defendants request that the Court continue the trial and certain deadlines contained in the
Scheduling Order. In support of their Motion, Defendants stated that on July 18, 2018, they filed
their Answer and Affirmative Defenses to Amended Complaint and Counterclaim and that on
August 1, 2018, Plaintiff filed his Answer. Defendants state that the discovery deadline expires
on August 8, 2018, and that they need additional time to conduct discovery into their counterclaims
and Plaintiff’s responses and affirmative defenses to those counterclaims.
Plaintiff responded in opposition [Doc. 87], asserting that Defendants were not diligent in
pursuing discovery and have not shown good cause for their failure to do so. Plaintiff asserts that
with respect to his Answer and responses to discovery, Defendants do not explain what additional
discovery is needed. Plaintiff further argues that bringing permissive counterclaims this late
should not be permitted as a means to manufacture a continuance. Defendants filed a Reply [Doc.
89], arguing that they disagree with some of the statements of law made by Plaintiff.
The Court has considered the parties’ positions and finds a trial continuance warranted.
The Court has previously expressed concern that the parties would not be able to complete
discovery prior to the trial date. See [Doc. 76]. The Court also expressed concern that it would
not have sufficient time to rule on any Daubert motions prior to the trial date. [Id.]. Further, given
the parties’ discovery disputes (as outlined above), it is clear that they need additional time to
prepare for trial. Accordingly, Defendants’ Motion to Extend [Doc. 84] is well taken, and it is
GRANTED. During the hearing, the parties stated that they were available for trial on February
19, 2019. The trial set for November 6, 2018, is hereby CANCELED and CONTINUED to
February 19, 2019. The Court further ORDERS as follows:
1. All discovery shall be completed ninety (90) days before trial;
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2. Plaintiff shall disclose his expert on October 24, 2018;
3. Defendants shall disclosure their experts on or before
November 23, 2018; and
4. All Daubert motions shall be filed on or before December 14,
2018.
All other unexpired deadlines, from the date of Defendants’ Motion, shall be recalculated
to the new trial date. Accordingly, Defendants’ Motion to Extend Discovery Deadline, Continue
Trial Date and Modify Scheduling Order [Doc. 84] is GRANTED.
III.

CONCLUSION
Accordingly, for the reasons set forth above, the Court finds as follows:
1. Plaintiff’s Motion for Leave to File Under Seal Exhibit K-S to the
Motion to Compel [Doc. 69] is DENIED AS MOOT;
2. Plaintiff’s Motion to Compel [Doc. 71] is GRANTED IN PART
AND DENIED IN PART;
3. Plaintiff’s Motion to Compel Responses to His Second and Third
Sets of Interrogatories and Requests for Production of Documents
[Doc. 81] is GRANTED IN PART AND DENIED IN PART; and
4. Defendants’ Motion to Extend Discovery Deadline, Continue Trial
Date and Modify Scheduling Order [Doc. 84] is GRANTED.
Defendants SHALL have fourteen (14) days from entry of this Memorandum and Order

to provide the discovery as ordered above. The Court expects the parties to work together to
reschedule the deposition of Defendant Barton.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

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