Communications Unlimited Contracting Services, Inc. v. COMDATA INC.

Filing 93

MEMORANDUM AND ORDER: Comdata's motion to compel is GRANTED IN PART. Issues not addressed by this order have been resolved by the parties, and the motion to compel is FOUND MOOT IN PART as to those claims. Signed by Magistrate Judge Alistair Newbern on 2/7/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CUCS UNLIMITED CONTRACTING
SERVICES, INC.,
Case No. 3:17-cv-01158
Plaintiff/Counter-Defendant,
Judge Eli J. Richardson
Magistrate Judge Alistair E. Newbern

v.
COMDATA INC.,
Defendant/Counter-Plaintiff.

MEMORANDUM AND ORDER
Plaintiff/Counter-Defendant CUCS Unlimited Contracting Services, Inc. (CUCS), a
company whose technicians drive to various locations to install cable, contracted with
Defendant/Counter-Plaintiff Comdata Inc. (Comdata) to implement a fuel card system in which
CUCS would control how much it paid each technician for fuel by providing them with pre-loaded
Master Card Corporate Cards. (Doc. No. 14, PageID# 64–65.) Through Comdata’s web-based
system, CUCS sought to establish a weekly budget for fuel spending on each card. After the system
had been running for about a year, and over 700 such cards issued, CUCS discovered that what it
thought was a weekly budget for each card had actually been made a daily budget, such that “if
[CUCS] thought it was granting an employee the right to spend $80 in gas for the week, the
technician was able to spend $80 per day - or a total of $560 for the week.” (Id. at PageID# 67, ¶¶
15, 18.) CUCS alleges that it suffered over $195,000 in damages before the error was corrected
and has sued Comdata for breach of contract and warranty, fraud, conversion, and unjust
enrichment. (Id. at PageID# 67–74.) Comdata has filed a counterclaim requesting a declaratory

judgment that it did not breach the contract and seeking to enforce its terms. (Doc. No. 27, PageID#
137–38.)
After receiving permission from the Court (Doc. No. 43), Comdata moved to compel
disclosure and production of information and documents to remedy various deficiencies in CUCS’
responses to Comdata’s interrogatories and production requests, and seeks the attorney fees it
incurred in filing the motion to compel. (Doc. No. 44.) CUCS responded in opposition (Doc. No.
46) and Comdata filed a reply (Doc. No. 49). In subsequent filings, Comdata and CUCS notified
the Court of their continued discussions regarding the motion to compel and raised additional
discovery issues. (Doc. Nos. 66, 68, 69, 70.)
The Magistrate Judge held a telephonic conference with the parties on January 18, 2019,
regarding their remaining discovery issues. After that conference, the Court ordered CUCS to
supplement its discovery by January 25, 2019. The Court also found Comdata’s motion to compel
moot in light of the additional production. (Doc. No. 72.) In a second telephone conference held
on January 30, 2019, the Court found that discovery issues raised by Comdata in its motion to
compel and subsequent filings had not been adequately addressed by CUCS’ additional
production. The Court therefore AMENDS its prior order finding the motion to compel moot and
addresses the remaining issues by this order.
For the reasons that follow, Comdata’s motion to compel is GRANTED IN PART, as set
out below. Issues not addressed by this order have been resolved by the parties, and the motion to
compel is FOUND MOOT IN PART as to those claims.
I.

Relevant Background
In a pre-litigation email to Comdata, CUCS laid out two different ways to calculate the

damages caused by the alleged error in implementing the fuel card program:

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The first way is to take the weekly total limit amount we told you to apply to all
cards and compare it to the weekly total actually spent on the cards. (See attached).
This is a rather easy calculation. Under this calculation, our reimbursable damages
are $190,331.87. (Note, under this damage calculation, damages are artificially
lowered in every case where a tech did not spend up to their limit).
There is a second and more accurate, although more time consuming way, to
calculate damages. And that way is to compare the limit and the amount charged
on a tech by tech basis (and thereby eliminate techs who artificially lower the
damages). Because of the length of time involved, we did a sample analysis for
week ending 7/17/16. Here’s the comparison. Under the gross method described
above, damages for this week are $4,535.49. However, under this second, more
accurate method, the damages are $5,793.22. We would expect a similar result for
all other weeks at issue.
(Doc. No. 44-1, PageID# 217.) Attached to that email is a spreadsheet entitled “Comdata
Damages,” which seems to outline how CUCS reached the $190,331.87 figure associated with the
first approach. (Doc. No. 44-1, PageID# 226.) The spreadsheet lists the “CUI Limit Amount,” or
the amount that CUCS budgeted, for each week from March 20, 2016 through March 12, 2017.
(Id.) The sum of those amounts is listed as $478,465.98. (Id.) When that amount is subtracted from
what CUCS allegedly paid on the cards over the same period—$668,797.85—the result is
$190,331.87. (Id.)
In its first amended complaint, CUCS does not reference either of the above methods for
calculating damages. Instead, CUCS states that “[t]he difference between a weekly ‘fuel only’ limit
versus a daily’ fuel only’ limit has caused [CUCS] extensive out-of-pocket monetary damages for
the overages paid, loss of personnel and retraining.” (Doc. No. 14, PageID# 67, ¶ 17 (emphasis in
original).) CUCS alleges that it “incurred monetary damages in an approximate amount over
$195,000.” (Id. at PageID# 68, ¶ 22.)
Comdata complains that, despite CUCS’ pre-litigation reference to different methods for
calculating its damages, and its approximation, in the amended complaint, of the damages it
suffered, CUCS’ initial disclosure concerning damages is barren, and simply lists specific
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categories of damages. (Doc. No. 44-2, PageID# 230.) Comdata argues that CUCS’ failure to
estimate the damages associated with each category, and provide the documents underlying such
estimation, amounts to a violation of its disclosure obligation under Rule 26(a)(1)(A)(iii), and asks
the Court to compel proper disclosure. (Doc. No. 45, PageID# 335.) CUCS responds that it
provided the information that was reasonably available to it at the time. (Doc. No. 46, PageID#
358.)
Comdata also asks the Court to compel responses to interrogatories and document
production requests it issued in an effort to get CUCS to clarify the nature of its claims for
damages. CUCS answered the interrogatories by pointing to a document it had produced entitled
“Compilation of Damages.” (Doc. No. 45, PageID# 337, 340, 342–43, 346–48.) In response to the
document production requests, CUCS claimed that it had produced all relevant documents. (Doc.
No. 45, PageID# 351.) In a written letter and then a follow-up email, Comdata explained to CUCS
that a document entitled “Compilation of Damages” had not been produced and that Comdata had
never received any documents related to CUCS’ calculation of its damages. (Doc. No. 44-7,
PageID# 311–13; Doc. No. 44-10, PageID# 325.) Despite having previously claimed that a
damages compilation document would be produced, CUCS asserted, in a July 12, 2018 response
to Comdata’s follow-up email, that, at that time, “[CUCS] [did] not have any documents to produce
relative to the damages compilation.” (Doc. No. 44-10, PageID# 325.) That changed on August
13, 2018, when CUCS produced, in support of its response in opposition to Comdata’s motion to
compel, a document approximating the damages associated with rehiring/training new personnel.
(Doc. No. 46-10, PageID# 593.) CUCS argues that Comdata’s motion should be denied because
CUCS has responded to Comdata’s interrogatories to the best of its ability and “produced all

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relevant documents . . . in [its] possession and control that are not otherwise in the custody and
control of [Comdata].” (Doc. No. 46, PageID# 358.)
Comdata argues that the deficiencies in CUCS’ discovery responses extend beyond the
issue of damages. Three of Comdata’s interrogatories ask CUCS to identify the portions of the
written contract between the parties that support CUCS’ claim that Comdata breached it. (Doc.
No. 45, PageID# 336, 339, 344.) CUCS objected to those interrogatories on the ground that they
call for a legal conclusion, which Comdata disputes. (Id. at PageID# 336–37, 339–40, 344–45.)
Comdata also points out that CUCS did not provide verification of its interrogatory responses, in
violation of Rule 33(b), which CUCS does not deny. (Id. at PageID# 352.) Finally, Comdata claims
that, despite CUCS’ assertion to the contrary, it failed to produce documents responsive to various
production requests. (Id. at PageID# 351.) Comdata asks the Court to compel (1) complete and
verified responses to its interrogatories and (2) responses to production requests that reference the
Bates Numbers of responsive documents, or directly assert that no responsive documents are
available. (Id. at PageID# 351–52.) Comdata also asks the Court to award Comdata the reasonable
expenses, including attorney’s fees, it incurred in seeking proper disclosures and discovery
responses. (Id. at PageID# 353; Doc. No. 46.) CUCS does not respond to that argument, although
it does claim that Comdata’s motion to compel is “premature and inappropriate” and that CUCS
declined to file one despite Comdata’s alleged discovery violations. 1 (Doc. No. 46, PageID# 355–
57 ¶¶ 3, 7.)

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CUCS states that it issued interrogatories and requests for production when this action was
filed in state court in July of 2017. (Doc. No. 46, PageID# 354.) Comdata removed the case to this
Court, “but did not respond to [CUCS’] discovery until March 26, 2018, and produced only 31
pages.” (Id.) Comdata explains the delay by pointing out that “discovery was stayed until the
[February 8, 2018] initial case management conference” and argues that CUCS never raised any
of the alleged deficiencies in Comdata’s discovery responses with the Court. (Doc. No. 49,
PageID# 600 (citing Doc. No. 4).) The Court finds that any dispute about the adequacy of
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II.

Legal Standard
The scope of discovery is “within the sound discretion of the trial court[.]” S.S. v. E. Ky.

Univ., 532 F.3d 445, 451 (6th Cir. 2008). Generally, Federal Rule of Civil Procedure 26 allows
discovery of “any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b). Relevant evidence in this context is
that which “has any tendency to make a fact more or less probable than it would be without the
evidence” if “the fact is of consequence in determining the action.” Grae v. Corr. Corp. of Am.,
No. 3:16-CV-2267, ___ F.Supp.3d ___, 2018 WL 3632136, at *2 (M.D. Tenn. July 31, 2018)
(quoting Federal Rule of Evidence 401).
A motion to compel discovery may be filed in a number of circumstances, including when
a party fails to “make a disclosure required by Rule 26(a),” “answer an interrogatory submitted
under Rule 33,” or “produce documents . . . as requested under Rule 34.” Fed. R. Civ. P.
37(a)(3)(A), (a)(3)(B)(iii)–(iv). Answers to interrogatories must be made in writing under oath and
signed by the person providing them. Fed. R. Civ. P. 33(b)(3), (b)(5). “[A]n evasive or incomplete
disclosure, answer, or response” is considered a “failure to disclose, answer, or respond.” Fed. R.
Civ. P. 37(a)(4). “The court will only grant [a motion to compel], however, if the movant actually
has a right to the discovery requested.” Grae, 2018 WL 3632136 at *2. When a motion to compel
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 . . . whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s

Comdata’s discovery responses has not been properly raised and, in any event, is not relevant to
the pending motion. See Alutiiq Int'l Sols., LLC v. Lyon, No. 2:11-CV-01104-GMN, 2012 WL
4155081, at *2 (D. Nev. Sept. 19, 2012) (stating that it is generally “not a defense to a motion to
compel discovery to argue that an opposing party has been equally (or more) non-compliant in its
discovery obligations”).
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reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. §
37(a)(5)(A). However, the Court cannot order such payment if (1) the movant did not confer in
good faith with the targeted party prior to filing the motion, (2) the targeted party’s nondisclosure
or failure to respond was substantially justified, or (3) awarding the payment would otherwise be
unjust. Fed. R. Civ. P. 37(a)(5)(A)(i–iii).
Rule 26 requires a party seeking damages to provide, in an initial disclosure, “a
computation of each category of damages claimed” and, unless privileged, “the documents or other
evidentiary material . . . on which each computation is based, including materials bearing on the
nature and extent of injuries suffered.” Fed. R. Civ. P. 26(a)(1)(A)(iii). This is the “functional
equivalent of a standing Request for Production under Rule 34.” Bridgestone Americas, Inc. v.
Int’l Business Machines Corp., No. 3:07-CV-157, 2016 WL 3211226, at *3 (M.D. Tenn. Jan. 12,
2016); see also Design Strategy, Inc. v. Davis, 469 F.3d 284, 295–96 (2d Cir. 2006). “A party
making a claim for damages has the obligation to disclose ‘the best information then available to
it concerning that claim, however limited and potentially changing it may be.’” Hesco Parts, LLC
v. Ford Motor Co., Case No. 3:02-CV-736, 2007 WL 2407255, *1 (W.D. Ky. Aug. 20, 2007).
That information must be sufficient to support an “exact” damages calculation. Bessemer & Lake
Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 368 (6th Cir. 2010) (finding, in this context,
that “simplicity and efficiency are virtues only if [the information provided] conveyed all of the
necessary information” to support the damages calculation) (internal quotations omitted). A
disclosing party’s failure to develop a basis for a damages calculation through investigation does
not exempt the party from its Rule 26 disclosure obligations. Bridgestone Americas, Inc., 2016
WL 3211226, at *3.

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Under Rule 37(c)(1), a party who fails to provide information as required by Rule 26(a) “is
not allowed to use that information . . . to supply evidence on a motion . . . unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). However, upon motion and after
giving an opportunity to be heard, the Court may replace or supplement that sanction with others,
including ordering “payment of the reasonable expenses, including attorney’s fees, caused by the
failure.” Fed. R. Civ. P. 37(c)(1)(A).
III.

Analysis
As a threshold matter, CUCS’ claim that Comdata’s motion to compel is “premature and

inappropriate” is unpersuasive. (Doc. No. 46, PageID# 357.) After holding a fruitless phone
conference with the parties regarding their discovery differences, the Court gave Comdata
permission to file the present motion to compel, undermining CUCS’ characterization of it. (Doc.
No. 43.) Further, CUCS’ assurance that it “intends to fully comply” with its “duty to supplement
any and all discovery responses as [] new evidence is obtained and/or at the latest thirty days from
the date of the discovery cutoff” is belied by what has transpired in subsequent telephone
conferences. (Doc. No. 46, PageID# 357–58.) The Court therefore addresses the remaining issues
raised by Comdata’s motion to compel as follows.
A. Interrogatories Nos. 6, 18, and 26
Several of Comdata’s interrogatories ask about the written agreement 2 that the parties
entered into:
Interrogatory No. 6: Identify in the Agreement where it states that Comdata
agreed to provide the CUI Fuel Card Program on a weekly “fuel only” limit.
2

Comdata defines “Agreement” as “that certain Comdata MasterCard Corporate Card
Agreement referenced by [CUCS] as being attached as Exhibit A to the Complaint and filed under
seal by Comdata in support of its Answer.” (Doc. No. 44-5, PageID# 242, ¶ 12 (emphasis in
original).)
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Interrogatory No. 18: Identify what specific term of the Agreement Comdata
breached as a result of the allegations asserted by you in Paragraph 16 3 of the
Complaint.
Interrogatory No. 26: What specific term(s) in the Agreement do you allege
Comdata breached as part of your Complaint.
(Doc. No. 44-5, PageID# 244, 249, 252.) CUCS objected to each of those interrogatories on the
ground that they called for a “legal conclusion” and “without waiving” that objection, referenced
other interrogatory responses. (Doc. No. 44-6, PageID# 284, 291, 294.) Yet none of CUCS’ other
interrogatory responses identifies any terms of the written agreement between the parties as being
at issue in this lawsuit. However, CUCS’ response to Comdata’s third interrogatory does shed
some light on the nature of its breach of contract claim:
3. In paragraph 7 of your Complaint, you allege that Comdata represented to you
that “they had a fuel card program that would allow [CUCS] to establish a weekly
limit for each card issued (the “CUI Fuel Card Program”)”. Identify the specific
name of each individual who made this representation to you, the date of said
communication, whether said communication was in writing or made orally, the
parties to said communication, a detailed description of the content of each
identified communication, and all documents evidencing such communication. If
there are no documents supporting the identified communication, affirmatively
state as such.
Response:
There were numerous conversations between Jason Elrod, Hayley Cleckler,
Faye Waters and Villita Ellis where Waters and Ellis stated that [Comdata] had a
fuel card program that would allow [CUCS] to establish a weekly limit for each
card issued.
In addition, there was a conference call on February 8, 2016 with Elrod,
Cleckler, Joseph Miller (President), Waters, and Ellis where Waters and Ellis stated
that defendant had a fuel card program that would allow [CUCS] to establish a
weekly limit for each card issued. This call was placed to explain to Joey Miller the
procedure that Comdata would implement for CUI before Mr. Miller agreed to sign

3

That paragraph reads: “[Comdata] wrongfully implemented, monitored and maintained the
Fuel Cards on a daily limit, which was in breach of the Agreement and their representations to
[CUCS].” (Doc. No. 14, PageID# 67, ¶ 16.)
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the agreement. (See Email 14 attached as response to [CUCS’] Response to
[Comdata’s] Request for Production of Documents).
In addition, there was a webinar that Faye Waters administered with the
CUI team on 2/18/2016 that demonstrated specifically how we needed to update
and process individual cards.
In addition, there was written correspondence vial email from Faye Waters
to Jason Elrod on 1/28/16 – 2/18/16 explaining that Comdata Setup Template
proposal to CUI to be completed on a weekly basis. (See Email # 1 attached as
response to [Communication’s] Responses to [Comdata’s] Request for Production
of Documents.)
In addition, [Comdata] created a Setup Template that only allowed [CUCS]
to choose a weekly or monthly reset (See Email #1 and Response Number 5 below).
In addition, a Comdata Setup Template was completed by Hayley Cleckler
& Jason Elrod for each profile “CUI Office Location” that identifies each Cycle
Limit Reset to be set to “Weekly”. These templates were emailed to Faye Waters
& Villita Ellis. See Emails 2 – 8 attached as responses to [CUCS’] Responses to
[Comdata’s] Request for Production of Documents.
(Doc. No. 44-6, PageID# 281–82.)
Whether CUCS’ breach of contract claim is based at all on the written agreement between
the parties is relevant to resolution of that claim, and CUCS’ reference to the written agreement in
its complaint suggests that the content of that agreement is at issue: “It was the responsibility and
fiduciary duty of [Comdata] to implement [CUCS] needs as agreed in the Agreement and
representations associated therewith.” (Doc. No. 14, PageID# 66, ¶ 13.) The question is thus
whether CUCS’ objections to the interrogatories relating to the written agreement are proper.
Comdata argues that they are not because its “inquiry directly relates to an allegation made by
CUCS in its lawsuit about the contract between the parties” and “does not ask for a legal
conclusion.” (Doc. No. 45, PageID# 337.) CUCS does not respond to that argument. (Doc. No.
46.)
Rule 33(a)(2) states that “[a]n interrogatory is not objectionable merely because it asks for
an opinion or contention that relates to fact or the application of law to fact . . . .” Fed. R. Civ. P.
33(a)(2). An interrogatory concerning the application of law to fact “can be most useful in

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narrowing and sharpening the issues, which is a major purpose of discovery.” Fed. R. Civ. P. 33
advisory committee’s note to 1970 amendment. An interrogatory raising a purely legal question—
that is, one that is “unrelated to the facts of the case”—does nothing to clarify the issues and
exceeds the scope of Rule 33. Id. The Court may be best situated to resolve a dispute about whether
an interrogatory involves a mixed question of law and fact, or a purely legal question, after
discovery is completed, and therefore can defer ruling on such a dispute when appropriate. Fed. R.
Civ. P. 33(a)(2).
Because Comdata’s interrogatories concerning the written agreement between the parties
do not raise purely legal issues, CUCS’ objections are overruled. CUCS offers no argument to
support its objection and the Court finds no basis for concluding that the interrogatories at issue
are unrelated to the facts of this case. On the contrary, each interrogatory focuses on the written
agreement between the parties and asks CUCS to identify the provisions of it, if any, that are at
issue. Further, since Rule 33 was amended in 1970, courts have overruled objections to
interrogatories asking the responding party to interpret contracts or identify the terms at issue. See
Brighton Crossing Condo. Ass’n v. Am. Family Mut. Ins. Co., No. 15-00887-CV-W-FJG, 2016
WL 4618897, at *3 (W.D. Mo. Sept. 6, 2016) (overruling objection to an interrogatory that asked
the responding party to locate support for its position in the written contract); Nationwide Mut.
Fire Ins. Co. v. Kelt, Inc., No. 6:14-CV-749-ORL-41, 2015 WL 1470971, at *7 (M.D. Fla. Mar.
31, 2015) (overruling objection to interrogatories that asked Nationwide “to apply contract law to
the facts of the case”); Atlanta Coca-Cola Bottling Co. v. Transamerica Ins. Co., 61 F.R.D. 115,
119 (N.D. Ga. 1972) (overruling an objection to an interrogatory that sought “to elicit an opinion
as to the meaning of contract terms,” noting that requests for opinions concerning the application
of law to fact are permissible in the wake of the 1970 amendment); see also Sigmund v. Starwood

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Urban Retail VI, LLC, 236 F.R.D. 43, 46 (D.D.C. 2006) (observing, in the context of analyzing
the scope of admissions under Rule 36, which contains language similar to that of Rule 33, that
“[a] request for admission that relates to the interpretation of a contract at issue in a case involves
the application of law to the unique facts of that case and, therefore, would be permissible under
the amended Rule 36”). CUCS must provide complete responses to these interrogatories.
CUCS must also provide verified responses to all of its interrogatories. In its motion to
compel, Comdata states that CUCS failed to do so despite Comdata’s repeated requests. (Doc. No.
45, PageID# 352.) CUCS does not respond to this argument. Under Rule 33, answers to
interrogatories must be made in writing under oath and signed by the person providing them. Fed.
R. Civ. P. 33(b)(3), (b)(5). CUCS shall provide compliant responses by February 14, 2019.
B. Miscellaneous Issues With CUCS’ Responses to Production Requests
Comdata objects to CUCS’ responses to the following document production requests:
Request for Production No. 3: Produce copies of all diaries, calendars, daily
planners, notes, appointment books and the like that you maintained from January
1, 2016 through July 1, 2017 that contain information pertaining to (a) the
allegations asserted in your Complaint; (b) the denials and defenses asserted in the
Answer to the Complaint; and (c) CUCS you had with agents acting on behalf of
the Defendant.
Request for Production No. 13: Produce copies of all documents, including prior
drafts and/or redlines, related to the Agreement, regardless of whether you and/or
your agent prepared said documents.
Request for Production No. 14: Produce copies of all notes in your possession
created contemporaneously with any CUCS you had with Comdata since July 1,
2017.
Request for Production No. 15: Produce call logs or similar information in your
possession related to CUCS you had with Comdata from January 1, 2016 through
and including May 1, 2017.
Request for Production No. 21: Produce copies of all written or recorded witness
statements in your possession pertaining to the allegations asserted in your

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Complaint and/or the denials and defenses asserted by Comdata in its Answer to
the Complaint.
Request for Production No. 38: Produce copies of all documents evidencing your
policies and procedures related to the CUI Fuel Car Program, as they existed as of
February 1, 2016, to the present.
(Doc. No. 44-5, PageID# 260–62, 267.) CUCS responded to those requests by stating that it had
“attached hereto and incorporated herein all documents which relate” to them. (Doc. No. 44-6,
PageID# 300, 302–04, 308.) Comdata disputes that, arguing that no responsive documents were
produced. (Doc. No. 45, PageID# 351.) Comdata claims that the requested discovery is relevant
as it “speak[s] to claims and potential defenses raised in this dispute . . . .” (Id.) Comdata requests
that CUCS produce responsive records, if they exist, or state affirmatively that no such records
exist. (Id. at PageID# 351—52.) Further, Comdata requests that, if CUCS has produced relevant
documents, it identify them. (Id. at PageID# 352.) CUCS concedes the relevance of Comdata’s
production requests, but reiterates that it has produced all responsive documents. 4 (Doc. No. 46,
PageID# 358.)
CUCS’ one-sentence response to the above requests for production is inadequate given the
current state of its production efforts. Comdata is right to argue that the 172 pages of Bates stamped
documents that CUCS has produced are not evidently responsive to Comdata’s requests. As an
example, there are no “diaries, calendars, daily planners, notes, appointment books” or similar
materials among the documents that CUCS produced. (Doc. No. 44-6, PageID# 300, ¶ 3.) Nor are

4

CUCS also references Federal Rule of Procedure 36, stating that “a party may admit or
deny a request, but detailed reasons must be presented only if a party objects to a request or
contends that the request cannot truthfully be admitted or denied.” (Doc. No. 46, PageID# 358.)
CUCS then claims that “[n]either of these scenarios exist” in this case, and that it “did not
arbitrarily object to any of the discovery requests.” (Id.) It is not clear why CUCS references Rule
36, which governs admissions, as the pending motion does not concern CUCS’ responses to
admissions, or even mention admissions.
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there any documents “evidencing [CUCS’] policies and procedures” relating to the fuel card
program. (Id. at PageID# 308, ¶ 38.)
It is CUCS’ “responsibility to provide meaningful responses to [Comdata’s] requests for
production,” and it is CUCS’ responsibility to review its documents “to identify those that are
responsive to specific requests.” Orchestratehr, Inc., 178 F. Supp. 3d at 510. CUCS must produce
records responsive to the above requests if they exist. To the extent that CUCS believes it has
already produced responsive records, it must provide the relevant Bates numbers. See id. at 509–
10 (requiring the defendants to provide the Bates numbers of responsive documents after the
defendants had referenced hundreds of pages of seemingly irrelevant documents in response to
plaintiffs’ production requests); Kincade v. Allstate Ins. Co., No. 4:13-CV-00126-KGB, 2014 WL
11498051, at *2 (E.D. Ark. July 15, 2014) (holding that reproduction of responsive records was
not required so long as Allstate could sufficiently identify the responsive records it had produced);
Alutiiq Int'l Sols., LLC v. Lyon, No. 2:11-CV-01104-GMN, 2012 WL 4155081, at *3 (D. Nev.
Sept. 19, 2012) (requiring the plaintiff to specify which of the 253 pages of documents it had
produced were responsive to defendant’s production requests). If no records responsive to a given
request exist, CUCS must say so. See Graves v. Standard Ins. Co., No. 3:14-CV-558-DJH, 2015
WL 13714170, at *3 (W.D. Ky. Oct. 20, 2015) (requiring the responding party to cite to specific
responsive documents or “acknowledge that no such [documents] exist[]”). CUCS must provide
responses and document production as just outlined by February 14, 2019.
C. Comdata’s Request for Reasonable Expenses, Including Attorney’s Fees
Comdata asks the Court to award it the “reasonable expenses, including attorney’s fees
incurred in seeking full and complete discovery responses from [CUCS], should its motion to
compel be granted.” (Doc. No. 45, PageID# 352.) Comdata rightly points out that Rule 37(a)(5)(A)

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provides for the relief it has requested: “[i]f the motion [to compel] is granted . . . the court must,
after giving an opportunity to be heard, require the party . . . 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.” Fed. R. Civ. P. 37(a)(5)(A).
An award of the reasonable expenses that Comdata incurred in seeking disclosures from
CUCS that comply with Rule 26(a) would be consistent with Rule 37(c)(1). That rule states that,
when a party fails to comply with its Rule 26(a) initial disclosure obligations, as CUCS did here,
the Court must impose an appropriate sanction, which might be an order requiring “payment of
the reasonable expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. P. (c)(1)(A).
Because CUCS does not respond to Comdata’s request for reasonable expenses, it is
difficult for the Court to determine whether that sanction is appropriate under Rule 37(a)(5)(A) or
Rule 37(c)(1). CUCS is ordered to show cause why the Court should not award Comdata the relief
it has requested by February 28, 2019.
IV.

Conclusion
For the foregoing reasons, Comdata’s motion to compel discovery (Doc. No. 44) is

GRANTED.
CUCS is ORDERED to produce initial disclosures and responses to Comdata’s
interrogatories and production requests as outlined above by February 14, 2019.
CUCS has asserted in discovery telephone conferences that it does not have responsive
documents to some of Comdata’s requests or plans not to seek the damages to which those requests
are related. While CUCS repeats these assertions, it has not made them in formal discovery
responses. It is therefore ORDERED to affirmatively state that it has no additional documents to
produce with regard to Comdata’s outstanding discovery requests or that it will not seek the

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category of damages related to a particular response. CUCS is further ORDERED, to the extent it
has not already done so, to amend its prior responses to Comdata’s requests for production to
identify by Bates number what documents are responsive to each request. CUCS shall make these
responses by February 14, 2019.
CUCS is further ORDERED to show cause by February 28, 2019, why the Court should
not award Comdata the reasonable expenses it incurred, including attorney’s fees, in seeking the
discovery at issue in this motion to compel.
It is so ORDERED.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

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