Nguyen et al v. Versacom, LLC et al
Filing
165
Memorandum Opinion and Order granting in part, denying in part 155 MOTION to Compel Discovery Responses. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 12/9/2015) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TOMMY NGUYEN, ET AL.,
Plaintiffs,
V.
VERSACOM, LLC, ET AL.,
Defendants.
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No. 3:13-cv-4689-D
MEMORANDUM OPINION AND ORDER
Plaintiffs Aly Mohamed, Julian Pham, and Dung Hoang (“Plaintiffs”) have filed
a Motion to Compel Discovery Responses [Dkt. No. 155], seeking an order compelling
Defendants Versacom, LLC (“Versacom”), Muhammad al-Amin, and Afreen al-Amin
(collectively, “Defendants”) to produce substantive discovery responses to Plaintiffs’
discovery requests. United States District Judge Sidney A. Fitzwater referred the
motion to the undersigned United States magistrate judge for determination. See Dkt.
No. 158.
Defendants filed a response to the motion, see Dkt. No. 160, and Plaintiffs filed
a reply, see Dkt. No. 161. The Court heard oral argument on Plaintiff’s Motion to
Compel Discovery Responses [Dkt. No. 155] on December 9, 2015. See Dkt. No. 164.
For the reasons and to the extent explained on the record at oral argument and
below, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion to Compel
Discovery Responses [Dkt. No. 155].
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Background
Plaintiffs Tommy Nguyen, Paulus Niekdam, and Loc Tran sued Versacom,
Muhammad al-Amin, and Afreen al-Amin on behalf of themselves and all others
similarly situated for violations of the Fair Labor Standards Act (“FLSA”). See Dkt. No.
1. Plaintiffs subsequently filed a First Amended Complaint on January 14, 2014. See
Dkt. No. 10.
Opt-in Plaintiffs Mohamed, Pham, and Huang served their First Requests for
Production on Defendants on August 27, 2015. (Throughout this order, the Court will
address the three Plaintiffs’ identical document requests collectively as their “Requests
for Production.”) Defendants’ responses were initially due on September 26, 2015.
Defendants requested an extension to respond until October 2, 2015, and Plaintiffs
agreed to this extension. Defendants then requested an additional extension until
October 15, 2015, and Plaintiffs again agreed. Defendants requested an additional
extension until November 15, 2015, and Plaintiffs again agreed to the additional
extension.
On November 13, 2015, Darren Harrington and the law firm of Key Harrington
Barnes, P.C. entered an appearance in this lawsuit as “interim counsel” on behalf of
Defendant Versacom, LLC. See Dkt. No. 154. On November 16, 2015 (the deadline for
responding where November 15, 2015 was a Sunday), Mr. Harrington emailed
Plaintiffs’ counsel Objections and Responses to Plaintiffs’ First Requests for Production
on behalf of all three named Defendants. These responses entitled Objections and
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Responses do not contain any substantive responses to any of Plaintiffs’ document
requests. See Dkt. No. 157 at 22-42.
By their motion to compel, Plaintiffs ask the Court to compel Defendants to
provide substantive discovery responses and the materials requested through an order
overruling Defendants’ objections, compelling Defendants to respond adequately to
Plaintiffs’ First Requests for Production, and awarding Plaintiffs costs and attorney
fees incurred in preparing the motion to compel. See Dkt. No. 155; Dkt. No. 156 at 5;
Dkt. No. 161 at 4. Plaintiffs explain that the document requests at issue “seek
discovery aimed at ascertaining information pertaining to Defendants’ pay practices
and compliance with the FLSA with respect to these three Opt-In Plaintiffs, as well as
two additional issues that are relevant to these proceedings. First, Plaintiffs seek the
requested information to investigate Defendants’ representations of poverty and an
inability to pay any judgment in favor of Plaintiffs. Second, Plaintiffs seek this
information to determine whether Mr. Mohamed, Mr. Pham, and Mr. Huang were, at
any time relevant to these proceedings, jointly employed by a customer of Versacom.”
Dkt. No. 156 at 3.
Plaintiffs explain that Defendants objected to and provided no substantive
materials for Requests for Production Nos. 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, and 13 and
that, as to the one request to which Defendants did not object (Request No. 9),
Defendants contend that they have previously produced responsive materials, but that,
after a thorough search of the documents previously produced by Defendants, Plaintiffs
have been unable to identify any documents responsive to Request No. 9. See id.
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Plaintiffs also contend that, “to the extent such documents were previously produced,
Defendants failed to identify the produced materials by Bates Label, and as such,
Plaintiffs cannot determine to which documents Defendants are referring in their
response to Request No. 9.” Id.
Defendants responded to the motion and explained that “[c]ounsel for Defendant
Versacom, LLC made their appearance in this matter on the eve of the discovery
responses at issue being due”; that “[c]ounsel is still in the process of finalizing its
representation of the individual defendants but anticipates filing an appearance and
is hereby responding to Plaintiffs’ motion to compel on their behalf”; that “Plaintiffs
Aly Mohamed, Julian Pham and Dung Hoang served identical requests for production
on Defendants (Doc. 157) consisting of thirteen (13) individual requests”; that,
“[h]aving not had time to consult with Defendants about the outstanding discovery,
[Versacom LLC’s counsel] requested an extension so that a full and complete response
could be made,” but Plaintiffs’ counsel denied the request”; and that, “[a]s a
consequence, Defendants served Plaintiffs with their objections.” Dkt. No. 160 at 1.
The response further explains that, “[s]ubsequent to filing their objections,
Defendants have located documents responsive to the request and uploaded them to
a cloud based server for the undersigned to review over the Thanksgiving holiday” and
that, “[o]n Tuesday, December 1, 2015, Defendants supplemented their responses as
follows: a. Requests nos. 3-5 and 7-10 were supplemented to state that responsive
documents were located and being produced to Plaintiffs; and b. Requests nos. 6 and
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11-13 were supplemented to reflect that no documents responsive to the requests were
identified and/or located after a diligent search.” Id. at 1-2.
But the response stands on the objections to Request Nos. “1 and 2 which
Defendants principally object to as overly broad and neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence.” Id. at 2. “The requests at
issue read as follows:
•
•
Requests For Production No. 1. Copies of all contracts, subcontracts, or
agreements in effect between Versacom, LLC, Versacom, LP, Vesacom Holding,
LLC, Afreen al-Amin, or Muhammad al-Amin (hereinafter collectively referred
to as “Versacom”) and Nokia Solutions and Networks Holdings USA Inc or any
of its affiliates (hereinafter collectively referred to as “Nokia”) at any time
during the time period November 26, 2010 to the present.
Requests For Production No. 2. Copies of all invoices, purchase orders, and
payment schedules related to all contracts, subcontracts, or agreements in effect
between Versacom and Nokia at any time during the time period November 26,
2010 to the present.
Id.
Defendants objected to Requests for Production No. 1 as follows: “Versacom
objects to this request on the grounds that it is unduly burdensome and overly broad
because it requests documents beyond the relevant time period and does not describe
with reasonable particularity the documents being requested where the request
encompasses all contracts, subcontracts, and agreements as opposed to only those that
are or may be relevant to Plaintiff’s FLSA claim. Furthermore the request is vague,
ambiguous and not reasonably calculated to lead to the discovery of relevant,
admissible evidence because it requests all ‘agreements’ without identifying or
describing the nature or subject matter of the ‘agreement,’ which would otherwise
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include any number of agreements between the identified entities including meeting
times, work procedures, project sequencing, and other matters unrelated to Plaintiff’s
FLSA claim.” Dkt. No. 157 at 22-23, 29-30, 37.
Defendants objected to Requests for Production No. 2 as follows: “Versacom
objects to this request on the grounds that it is unduly burdensome and overly broad
because it requests documents beyond the relevant time period and does not describe
with reasonable particularity the documents being requested where the request
encompasses all contracts, subcontracts, and agreements as opposed to only those that
are or may be relevant to Plaintiff’s FLSA claim. Furthermore the request is vague,
ambiguous and not reasonably calculated to lead to the discovery of relevant,
admissible evidence because it requests all ‘agreements’ without identifying or
describing the nature or subject matter of the ‘agreement,’ which would otherwise
include any number of agreements between the identified entities including meeting
times, work procedures, project sequencing, and other matters unrelated to Plaintiff’s
FLSA claim; and invoices, purchase orders, and payment schedules between Versacom
and Nokia have no bearing on whether Versacom’s payments to Plaintiff were or were
not in compliance with the FLSA.” Id. at 23, 30, 37.
Defendants contend that their “objections are appropriate since any contracts
Defendant has with Nokia (and the invoices related thereto) have no relevance to the
hours worked by Plaintiffs,” where “Plaintiffs do not seek documents limited to those
evidencing and/or reflecting hours and/or projects worked by Plaintiffs” but, “[r]ather,
Plaintiffs seek any and all such contracts and invoices whether they have any relation
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to Plaintiffs or not,” and where “[s]uch an overly broad request renders it irrelevant”
for purposes of Federal Rule of Civil Procedure 26(b)(1).” Dkt. No. 160 at 2-3.
Defendants further report that they “have attempted to comply with the
requests as expeditiously as possible given the change in representation” and that
“Plaintiffs’ Motion should be denied, and fees are not appropriate.” Id. at 3.
Plaintiffs reply that Defendants’ response “does nothing to lessen the need for
the Court to compel all defendants to produce substantive discovery responses to
Plaintiffs’ discovery requests and enter an order for sanctions against Defendants.”
Dkt. No. 161 at 1.
Plaintiffs first note that “Defendants Muhammad al-Amin and Afreen al-Amin
remain unrepresented by the counsel for Versacom” and that, “[a]s of the filing of this
Reply, there has been no appearance filed by counsel for Versacom on behalf of
Defendants Muhammad and Afreen al-Amin.” Id. at 1 & n.1. Plaintiffs contend that
Federal Rule of Civil Procedure 26(g)(1) “requires every response or objection to be
signed by at least one attorney of record or by the party, if unrepresented”; that,
“[h]ere, the only signature on the objections served to Plaintiffs or the response to
Plaintiffs’ motion filed by Defendants is that of the counsel of record for Versacom”;
and that, “for the objections or response in question to be valid and timely objections
and responses by Muhammad al-Amin or Afreen al-Amin, the objections served and the
response filed with the Court would have needed to be signed by each of the al-Amins”;
that “Defendants do not provide any support for the notion that objections served on
behalf of Versacom extend to the individual defendants where Defendants’ counsel
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admits that his firm does not yet represent the individual defendants in this case”; and
that, “[t]herefore, the Court should overrule Defendants’ objections and strike
Defendants’ response to the extent that they purport to be the objections and/or
response of all defendants.” Id. at 1-2, 4 n.2.
Plaintiffs also assert that the Court should overrule Defendants’ objections in
their original responses because Versacom’s new counsel entered an appearance days
before the responses were due “but did not contact Plaintiffs’ counsel to ask for another
extension until the date the discovery responses were due, November 16, 2015,” and
“Defendants were aware that their responses were due on November 15, 2015, and in
fact, each defendant signed their previous counsel’s October 13, 2015 motion for
withdrawal of counsel which cited the due date.” Id. at 2.
Plaintiffs further acknowledge that, since the filing of the motion to compel,
“Defendants supplemented their responses and removed all objections from eight of
Plaintiffs’ thirteen discovery requests” and “eventually either produced responsive
documents or asserted that no responsive documents existed.” Id. But, Plaintiffs argue,
“Defendants’ supplemental responses reveal just how outside the rules of discovery
Defendants were operating when they served their ‘objection only’ responses,” where,
according to Plaintiffs, “[i]nstead of making reasonable inquiries, Defendants, through
their attorney, served boilerplate objections without a good faith basis for doing so,” in
violation of Rule 26(g)(1)(B). Id. at 2-3 Plaintiffs assert that, after they “agreed to three
previous extensions, Defendants, without justification and in violation of the Federal
Rules of Civil Procedure, failed to make reasonable inquiries regarding whether
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responsive documents existed before serving their boilerplate objections – causing
Plaintiffs to have to file their underlying motion.” Id. at 3.
Plaintiffs finally contend that “Defendants have waived their objections to
Plaintiffs’ Requests No. 1 and No. 2 because even if the argument asserted in their
response is valid, Defendants obscured any legitimate objection by burying it in a
litany of boilerplate objections,” where “Defendants essentially made the same
boilerplate objections to both requests.” Id. at 3-4. Plaintiffs further argue that, “[e]ven
if the Court finds that Defendants did not waive their objections, information regarding
how Defendants charge its customers for hours worked by Defendants’ employees is
certainly relevant to and/or reasonably calculated to lead to the discovery of admissible
evidence of Defendants pay practices.” Id. at 4 (footnote omitted).
In advance of oral argument, Defendants’s counsel filed a Notice of Appearance
and Designation of Attorney in Charge, in which counsel explained that, “[o]n or about
November 13, 2015, the undersigned gave notice of their appearance on behalf of
Versacom, LLC”; that, “[o]n November 16, 2015, the undersigned appeared on behalf
of the remaining defendants in answering discovery on their behalf and again on
December 1, 2015 when the undersigned signed, on behalf of all defendants, a response
to Plaintiffs’ motion to compel per Fed. R. Civ. P. 11”; that, “[a]s plaintiffs, in replying
to defendants’ response to their motion to compel have questioned whether an
appearance has been made, out of an abundance of caution and in order to address any
and all such concerns, Darren Harrington and the law firm of Key Harrington Barnes,
P.C. hereby give notice of their appearance in this litigation on behalf of MUHAMMAD
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AL-AMIN, and AFREEN AL-AMIN together with VERSACOM, LLC.” Dkt. No. 162 at
1.
Legal Standards
Federal Rule of Civil Procedure 37(a) governs motions to compel discovery
responses. Rule 37(a)(3)(B) provides that a party seeking discovery may move for an
order compelling production against another party when the latter has failed to
produce documents requested under Federal Rule of Civil Procedure 34 or to answer
an interrogatory under Federal Rule of Civil Procedure 33. See FED. R. CIV. P.
37(a)(3)(B)(iii)-(iv). For purposes of Rule 37(a), “an 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).
The party resisting discovery must show specifically how each discovery request
is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). And a party who has objected to a
discovery request must, in response to a motion to compel, urge and argue in support
of his objection to a request, and, if he does not, he waives the objection. See Sonnino
v. Univ. of Kansas Hosp. Auth., 221 F.R.D. 661, 670-71 (D. Kan. 2004). A party
resisting discovery must show how the requested discovery was overly broad,
burdensome, or oppressive by submitting affidavits or offering evidence revealing the
nature of the burden. See Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex.
2005); see also S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“A party
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asserting undue burden typically must present an affidavit or other evidentiary proof
of the time or expense involved in responding to the discovery request.”).
Federal Rules of Civil Procedure Rules 26(b) and 26(c) have been amended,
effective December 1, 2015. The amendments to Rule 26 govern in all proceedings in
civil cases thereafter commenced and, insofar as just and practicable, in all proceedings
then pending. The Court finds that applying the standards of Rule 26(b)(1), as
amended, to Plaintiffs’ motion to compel is both just and practicable. Further, for the
reasons the Court has recently explained, the Court concludes that the amendments
to Rule 26 do not alter the burdens imposed on the party resisting discovery discussed
above. See Carr v. State Farm Mutual Automobile Insurance Company, No.
3:15-cv-1026-M, 2015 WL 8010920, at *3-*10 (N.D. Tex. Dec. 7, 2015). Rather, just as
was the case before the December 1, 2015 amendments, under Rules 26(b)(1) and
26(b)(2)(C)(iii), a court can – and must – limit proposed discovery that it determines
is not 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, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit – and the court must do so even in the absence of a motion.
See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011).
But a party seeking to resist discovery on these grounds still bears the burden
of making a specific objection and showing that the discovery fails the proportionality
calculation mandated by Rule 26(b) by coming forward with specific information to
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address – insofar as that information is available to it – the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.
The party seeking discovery, to prevail on a motion to compel or resist a motion
for protective order, may well need to make its own showing of many or all of the
proportionality factors, including the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, and the importance of the discovery in resolving the issues, in
opposition to the resisting party’s showing. And the party seeking discovery is required
to comply with Rule 26(b)(1)’s proportionality limits on discovery requests; is subject
to Rule 26(g)(1)’s requirement to certify “that to the best of the person’s knowledge,
information, and belief formed after a reasonable inquiry: ... (B) with respect to a
discovery request..., it is: (i) consistent with these rules and warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law, or
for establishing new law; (ii) not interposed for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii)
neither unreasonable nor unduly burdensome or expensive, considering the needs of
the case, prior discovery in the case, the amount in controversy, and the importance
of the issues at stake in the action”; and faces Rule 26(g)(3) sanctions “[i]f a
certification violates this rule without substantial justification.” FED. R. CIV. P.
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26(g)(1)(B), 26(g)(3); see generally Heller v. City of Dallas, 303 F.R.D. 466, 475-77, 49395 (N.D. Tex. 2014).
But the amendments to Rule 26(b) and Rule 26(c)(1) do not alter the basic
allocation of the burden on the party resisting discovery to – in order to prevail on a
motion for protective order or successfully resist a motion to compel – specifically object
and show that the requested discovery does not fall within Rule 26(b)(1)’s scope of
relevance (as now amended) or that a discovery request would impose an undue burden
or expense or is otherwise objectionable. See McLeod, 894 F.2d at 1485; Heller, 303
F.R.D. at 483-93.
Analysis
Motion to Compel
Plaintiffs complained in their briefing that it was unclear whether Defendants
Muhammad al-Amin and Afreen al-Amin were represented when the discovery
responses and objections and response to the motion to compel were served and file and
that, if they were not, these defendants did not individually sign and serve any
responses or objections to Plaintiffs’ First Requests for Production, as required by Rule
26(g)(1) and Rule 34(b)(2), or individually sign a response to Plaintiffs’ motion to
compel. Federal Rule of Civil Procedure 26(g)(2) provides that “[o]ther parties have no
duty to act on an unsigned disclosure, request, response, or objection until it is signed,
and the court must strike it unless a signature is promptly supplied after the omission
is called to the attorney’s or party’s attention.” FED. R. CIV. P. 26(g)(2). Plaintiffs called
this apparent omission to Defendants’ attention, but, as the Court discussed with
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counsel at oral argument, it has now been addressed as Defendant Versacom’s counsel
has entered a formal appearance for all Defendants and confirmed that he was already
“appear[ing] on behalf of the remaining defendants in answering discovery on their
behalf and again on December 1, 2015 when the undersigned signed, on behalf of all
defendants, a response to Plaintiffs’ motion to compel per Fed.R.Civ.P.11.” Dkt. No. 162
at 1. Accordingly, the Court denies Plaintiffs’ request to strike the objections to
Plaintiffs’ First Requests for Production as to Defendants Muhammad al-Amin and
Afreen al-Amin.
Defendants have, through counsel, withdrawn their objections to most of the
requests in Plaintiffs’ First Requests for Production and provided supplemental
responses and documents responsive to the requests. And, at oral argument,
Defendants’ counsel confirmed that, to his knowledge, Defendants are not withholding
any documents responsive to Requests for Productions No. 3-13 on the basis of any
objections or otherwise. Accordingly, Plaintiffs’ motion to compel is denied without
prejudice as moot as to Plaintiffs’ Requests for Production Nos. 3-13.
Defendants are only standing on their objections to Requests for Production Nos.
1 and 2, to which the objections are principally to the requests “as overly broad and
neither relevant nor reasonably calculated to lead to the discovery of admissible
evidence.” Dkt. No. 160 at 2. Plaintiffs assert that these objections are waived because
Defendants obscured any legitimate objection by burying them in a litany of boilerplate
objections. See Dkt. No. 161 at 3-4. The Court does not, however, find Defendants’
objections to Requests for Production Nos. 1 and 2 to be the sort of general, boilerplate
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objection that the Court has warned are improper. See generally Heller, 303 F.R.D. at
483-93. Rather, Defendants provided specific reasons for their undue burden and
relevance objections. Accordingly, those objections are not waived on this asserted
basis.
As to these objections, Defendants contend that “any contracts Defendant has
with Nokia (and the invoices related thereto) have no relevance to the hours worked
by Plaintiffs,” where “Plaintiffs do not seek documents limited to those evidencing
and/or reflecting hours and/or projects worked by Plaintiffs” but, “[r]ather, Plaintiffs
seek any and all such contracts and invoices whether they have any relation to
Plaintiffs or not,” and where “[s]uch an overly broad request renders it irrelevant” for
purposes of Federal Rule of Civil Procedure 26(b)(1).” Dkt. No. 160 at 2-3. Plaintiffs
reply that “information regarding how Defendants charge its customers for hours
worked by Defendants’ employees is certainly relevant to and/or reasonably calculated
to lead to the discovery of admissible evidence of Defendants pay practices.” Dkt. No.
161 at 4 (footnote omitted).
For the reasons explained on the record at oral argument and as discussed
extensively with counsel there, the Court denies Plaintiffs’ motion to compel as to
Plaintiffs’ Requests for Production No. 2 and grants Defendants a protective order
against any requirement to comply with that request, where the request, particularly
in light of the more specific documents requested by Plaintiffs’ Requests for Production
Nos. 7-9, falls outside the proper scope of discovery under Rule 26(b)(1).
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As to Plaintiffs’ Requests for Production No. 1, for the reasons explained on the
record at oral argument and as discussed with counsel there, the Court will order
Defendants to produce only copies of specific contractual provisions that (1) are
included in a contract, subcontract, or agreement in effect between Versacom, LLC,
Versacom, LP, Vesacom Holding, LLC, Afreen al-Amin, or Muhammad al-Amin
(hereinafter collectively referred to as “Versacom”) and Nokia Solutions and Networks
Holdings USA Inc or any of tis affiliates (hereinafter collectively referred to as “Nokia”)
during a time in which Aly Mohamed, Julian Pham, and/or Dung Hoang worked for
Versacom on a project for Nokia that was governed by the contract, subcontract, or
agreement and (2) that address Versacom’s compliance with the Fair Labor Standards
Act or payment of overtime compensation to Versacom’s employees. Defendants are not
required to produce – or, alternatively, may redact for purposes of production – any
other portion of a contract, subcontract, or agreement except for the contract’s,
subcontract’s, or agreement’s title and signature page(s) and these specific provisions.
The Court otherwise denies Plaintiffs’ motion to compel as to Plaintiffs’ Requests for
Production No. 1 and correspondingly grants Defendants a protective order against any
requirement to further comply with Plaintiffs’ Requests for Production No. 1.
Requests for Sanctions
Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel
is granted or if, as here, the “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,
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or both to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees,” except that “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.” FED. R. CIV. P. 37(a)(5)(A). Federal Rule of Civil Procedure 37(a)(5)(C)
further provides that, where, as here, the motion to compel is granted in part and
denied in part, the Court “may issue any protective order authorized under Rule 26(c)
and may, after giving an opportunity to be heard, apportion the reasonable expenses
for the motion.” FED. R. CIV. P. 37(a)(5)(C).
Rule 26(g) provides:
(g) Signing Disclosures and Discovery Requests, Responses, and Objections.
(1) Signature Required; Effect of Signature. Every disclosure under Rule
26(a)(1) or (a)(3) and every discovery request, response, or objection must
be signed by at least one attorney of record in the attorney’s own name –
or by the party personally, if unrepresented – and must state the signer’s
address, e-mail address, and telephone number. By signing, an attorney
or party certifies that to the best of the person’s knowledge, information,
and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the
time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing
law or by a nonfrivolous argument for extending, modifying,
or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the
cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or
expensive, considering the needs of the case, prior discovery
in the case, the amount in controversy, and the importance
of the issues at stake in the action.
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....
(3) Sanction for Improper Certification. If a certification violates this rule
without substantial justification, the court, on motion or on its own, must
impose an appropriate sanction on the signer, the party on whose behalf
the signer was acting, or both. The sanction may include an order to pay
the reasonable expenses, including attorney’s fees, caused by the
violation.
FED. R. CIV. P. 26(g)(1), 26(g)(3).
“Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a
responsible manner that is consistent with the spirit and purposes of Rules 26 through
37.” Fed. R. Civ. P. 26(g) advisory committee’s note (1983). Rule 26(g) specifically
“requires that parties make a reasonable inquiry before conducting or opposing
discovery.” Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 448 (5th Cir.
1992). Rule 26(g) “provides a deterrent to both excessive discovery and evasion by
imposing a certification requirement that obliges each attorney to stop and think about
the legitimacy of a discovery request, a response thereto, or an objection” and whether
it is consistent with the Federal Rules of Civil Procedure and “grounded on a theory
that is reasonable under the precedents or a good faith belief as to what should be the
law.” Fed. R. Civ. P. 26(g) advisory committee’s note (1983). “This standard is heavily
dependent on the circumstances of each case.” Id.
“Although the certification duty requires the lawyer to pause and consider the
reasonableness of his request, response, or objection, it is not meant to discourage or
restrict necessary and legitimate discovery. The rule simply requires that the attorney
make a reasonable inquiry into the factual basis of his response, request, or objection.”
Id. “‘The duty to make a ‘reasonable inquiry’ is satisfied if the investigation undertaken
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by the attorney and the conclusions drawn therefrom are reasonable under the
circumstances. It is an objective standard similar to the one imposed by [Federal Rule
of Civil Procedure] 11.... Ultimately what is reasonable is a matter for the court to
decide on the totality of the circumstances.’” Chapman & Cole v. Itel Container Int’l
B.V., 865 F.2d 676, 686 (5th Cir. 1989) (quoting Fed. R. Civ. P. 26(g) advisory
committee’s note (1983)).
A Rule 26(g)(1) “certification speaks as of the time it is made.” Fed. R. Civ. P.
26(g) advisory committee’s note (1983). The Court therefore “should avoid taking the
benefit of hindsight and instead focus on whether, at the time it was signed, the
[request, response, or objection] was well grounded in fact and warranted by existing
law or a good faith argument for the extension, modification, or reversal of existing
law.” Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 536 (5th Cir. 1990)
(applying FED. R. CIV. P. 11).
Plaintiffs’ motion seeks an award of their reasonable expenses pursuant to Rule
37(a)(5), and, for the first time in reply, Plaintiffs seek an award of their costs and fees
under Rule 26(g)(3). The Court will grant Defendants Versacom, LLC, Muhammad
al-Amin, and Afreen al-Amin until January 6, 2016 to file a response to Plaintiffs’
request for an order requiring Defendants and/or Defendants’ counsel to pay Plaintiffs
Aly Mohamed, Julian Pham, and Dung Hoang, pursuant to Rule 37(a)(5) and/or Rule
26(g)(3), the expenses, including attorneys’ fees, that Plaintiffs incurred in making
their Motion to Compel Discovery Responses [Dkt. No. 155]. Defendants’ response
should fully explain whether Defendants contend that Plaintiffs filed their motion to
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compel before attempting in good faith to obtain the discovery without court action,
whether Defendants’ nondisclosure, responses, or objections at issue were substantially
justified, whether other circumstances make an award of expenses under Rule 37(a)(5)
unjust, and whether Defendants’ counsel complied – or had substantial justification
for any failure to comply – with Rule 26(g)(1) in signing Defendants’ original objections
to Plaintiffs’ First Requests for Production.
Plaintiffs may file a reply in support of their request for an award of their
reasonable expenses by January 27, 2016.
The Court defers ruling on Plaintiffs’ request for an award of their reasonable
expenses under Rules 37(a)(5) and/or 26(g)(3) pending this additional briefing.
Conclusion
For the reasons and to the extent explained above and on the record at oral
argument, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion to
Compel Discovery Responses [Dkt. No. 155]. Defendants must produce the documents
responsive to Plaintiffs’ Requests for Production No. 1, as limited by this order, by
December 30, 2015.
SO ORDERED.
DATED: December 9, 2015
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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