Watson Carpet & Floor Covering, Inc. v. Mohawk Industries, Inc. et al

Filing 252

ORDER: For the reasons stated above, the undersigned Magistrate Judge finds that Watson's motion to compel 100 should be DENIED. It is so ORDERED. Signed by Magistrate Judge John S. Bryant on 9/20/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WATSON CARPET & FLOOR COVERING,
INC.,

)
)
)
Plaintiff,
)
)
v.
)
)
MOHAWK INDUSTRIES, INC., et al., )
)
Defendants
)

No. 3:09-0487
Judge Sharp/Bryant
Jury Demand

MEMORANDUM AND ORDER
Plaintiff Watson Carpet & Floor Covering, Inc. (“Watson”)
has filed its motion to compel discovery (Docket Entry No. 100)
seeking

an

order

requiring

Defendant

Mohawk

Industries,

Inc.

(“Mohawk”) to serve an additional response to Request No. 3 in
Plaintiff’s sixth request for production of documents. This request
seeks records called “comparison sales reports” “for all regions in
Defendant’s company from 2003 through 2012.” In response, Mohawk
has objected to this request on the grounds that it is “over broad
and unduly burdensome in both time and geographic scope,” but
Mohawk further states that it “will produce documents related to
the potentially relevant time period and geographic area to the
extent such documents exist.”
In its memorandum in support of its motion, Watson states
that Mohawk has already produced comparison sales reports for the
dealers in the Nashville area for the years 2003 through 2012, and
that Watson “is satisfied with the time frame for which the reports
have been produced, and does not seek an order compelling the

production of such reports for earlier years” (Docket Entry No. 115
at 2). Watson does, however, seek an order compelling Mohawk to
produce such comparison sales reports for all its other sales
districts throughout the United States for the years 2003 through
2012. Watson further argues that Mohawk’s objection based upon the
undue burden of producing the requested reports lack merit because
certain of Mohawk’s witnesses testified in depositions that the
data necessary to create these reports can be derived from Mohawk’s
archive and backup data tapes by means of certain modifications in
its record-keeping computer system (Docket Entry No. 115 at 4-6).
In response, Mohawk opposes Watson’s motion to compel on
four grounds: (1) the subject comparison sales reports are not
within Mohawk’s “possession, custody, or control,” and the scope of
Rule 34 does not require Mohawk to create reports that do not
currently exist; (2) the geographic scope of Watson’s request is
“vastly over broad”; (3) the time and expense required to create
the reports that Watson seeks would be unduly burdensome; and (4)
Watson has admitted that the comparison sales report for the
Nashville

sales

area

that

Mohawk

has

already

produced

are

sufficient.
Rule 34(a)(1) of the Federal Rules of Civil Procedure
provide that a party responding to a request for production must
produce

documents

possession,

or

custody,

information
or

“in

control.”

2

the

Courts

responding
have

party’s

consistently

interpreted the scope of Rule 34(a)(1) to be limited to materials
within the possession, custody or control of the parties upon whom
the request is made. Oates v. Target Corp., 212 WL 6608752 at *2
(E.D. Mich. Dec. 18, 2012); Beil v. Lakewood Eng’g and Mfg. Co., 15
F.3d

546,

552

production

(6th

cannot

Cir.

require

1994).
the

Specifically,

responding

a

parties

request
to

for

“create”

documents that are not already in existence. Alli v. Estate of
Savitz, 2008 WL 3915147 at *2 (E.D. Mich. Aug. 20, 2008) (citing
Rockwell Int’l Corp. v. H. Wolfe Iron and Metal Co., 576 F. Supp.
511, 513 (W.D. Pa. 1983); Retail Ventures, Inc. v. National Union
Fire Ins. Co., 2000 U.S. Dist. LEXIS 83425 at *6-7, 2007 WL 3376831
(S.D. Ohio Nov. 8, 2007).
It appears from the record that there is no dispute that
the additional comparison sales report that Watson seeks by its
motion do not presently exist, but would need to be created by
extracting historical data from archive and backup data storage
maintained by Mohawk.1 Watson argues that deposition testimonies of
Mohawk witnesses demonstrate that the requested documents could be
created relatively quickly and inexpensively by trained information
technology personnel familiar with Mohawk’s computer system. Mohawk

1

Mohawk states in its response in opposition that in an unsuccessful
attempt to avoid a discovery dispute it did, with considerable effort,
recreate and produce to Watson the comparison sales reports for the
Nashville market area for the years 2003 through 2010. However, Mohawk
asserts that the cost in time and expense of recreating such reports for
the entire United Sates, including 50+ sales districts, would be unduly
burdensome.

3

strenuously contests this conclusion, and argues that the requested
reports could only be created, if at all, after substantial
expenditures of time and money by Mohawk’s IT personnel.
The undersigned Magistrate Judge finds, in consideration
of the authorities cited above, that Rule 34 does not require
Mohawk to create these requested reports when they do not presently
exist and, therefore, that Watson’s motion to compel production
must be DENIED. In addition, the undersigned Magistrate Judge finds
from the motion papers of the parties that the argument for which
Watson seeks these additional comparison sales reports - that
Mohawk’s professed reason for declining to sell Portico carpet to
Watson is pretextual - can be made from the comparison sales report
for the Nashville market area that have already been produced by
Mohawk to Watson.
For the reasons stated above, the undersigned Magistrate
Judge finds that Watson’s motion to compel (Docket Entry No. 100)
should be DENIED.
It is so ORDERED.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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