Beneplace, Inc. v. Pitney Bowes Inc. et al
Filing
51
ORDER GRANTING IN PART AND DENYING IN PART 38 Motion to Compel; GRANTING IN PART AND DENYING IN PART 42 Motion to Compel. Signed by Judge Mark Lane. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BENEPLACE, INC.,
Plaintiff,
V.
PITNEY BOWES, INC., MERCER
CONSULTING GROUP, INC., MERCER
(US) INC.; and MERCER HEALTH AND
BENEFITS ADMINISTRATION, LLC,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
§
A-15-CV-065-LY-ML
ORDER
Before the Court are Defendant Pitney Bowes Inc. (“Pitney Bowes”)’s Motion to Compel
Plaintiff’s Production of Documents and Responses to Interrogatories [Dkt. #38] (the “Pitney
Bowes Motion to Compel”), Plaintiff Beneplace, Inc. (“Beneplace”)’s Responses in Opposition
to Pitney Bowes’s Motion to Compel [Dkt. #40] (the “Response to Pitney Bowes”), and
Defendant Pitney Bowes’ Reply to Plaintiff’s Response in Opposition to Motion to Compel [Dkt.
#41] (the “Pitney Bowes Reply”). Also pending before the Court are Defendant Mercer Health
& Benefits Administration LLC (“Mercer”)’s Motion to Compel Production of Documents [Dkt.
#42] (the “Mercer Motion to Compel”), Beneplace’s Responses in Opposition to Mercer’s
Motion to Compel [Dkt. #47] (the “Response to Mercer”), and Defendant Mercer’s Reply In
Support of Its Motion to Compel Production [Dkt. #48] (the “Mercer Reply”). These Motions to
Compel and responsive briefing have been referred to the undersigned by United States District
Judge, Lee Yeakel, for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil
Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court
1
for the Western District of Texas. After reviewing the pending motions, the relevant case law, as
well as the entire case file, the undersigned issues the following Opinion and Order.
I.
BACKGROUND
This lawsuit concerns whether a Master Services Agreement (MSA) between Plaintiff,
Beneplace, Inc. (“Beneplace”) and Defendant, Pitney Bowes, Inc. (“Pitney Bowes”) imposes a
duty on Pitney Bowes to take steps to preserve Beneplace’s right to ongoing receipt of
commissions generated during the term of the MSA. The clause at issue is reprinted in full:
Beneplace and the Client anticipate that Beneplace will expend
substantial time and capital in the implementation of the Offering
Package and the delivery of the services described above. Because
such time and capital is likely to be expended by Beneplace before
it receives a reasonable return on its investment (through receiving
fees and/or commissions from the Providers on the sale of
programs, products, and services to the employees), the Client
agrees that, while the Client has the right to terminate this
Agreement at any time with ninety (90) days notice, the
commissions generated during the term of this Agreement will
remain as the property of Beneplace and cannot be assigned to a
new insurance agent/broker/service provider. In the event that the
Client terminates this Agreement with Beneplace but continues to
make the insurance benefits and other services and products that
are part of the Offering Package available to the employees, the
new insurance agent/broker will only be eligible for commissions
from the sales of product from the date of the contract forward and
no commissions from the Beneplace engagement will carry
forward. These commissions will continue to be the property of
Beneplace so long as any individual is continually insured by the
provider of goods and services originally managed by Beneplace.
Resp. to Pitney Bowes [Dkt. #40] Ex. A, MSA §2.4.
Not surprisingly, the parties disagree on the effect of this language. Defendants assert the clause
merely recites Beneplace’s understanding with the third party Providers who make up the
Offering Package. According to Defendants, Pitney Bowes is not a party to the commission
2
agreements and other contractual arrangements between Beneplace and the third party Providers.
Therefore, Pitney Bowes can have no obligation with respect to the assignment of commissions
from those Providers, and Pitney Bowes’ new relationship with Mercer is not an improper
interference with any agreements between the Providers and Beneplace. Beneplace, on the other
hand, contends the clause imposes a duty on Pitney Bowes to “protect” Beneplace’s existing
commissions by not assigning any existing right to collect commissions to a new broker and by
informing the relevant parties that any new broker is only eligible to collect commissions from
new sales, not from renewals of existing contracts. Beneplace contends Mercer induced Pitney
Bowes to ignore this duty in breach of Pitney Bowes’ post-termination contractual obligations.
All parties contend that, to the extent their reading of Section 2.4 is not supported by its
plain language, the contract should be considered ambiguous and extrinsic evidence should be
admissible to determine the meaning of the relevant provision. To that end, Pitney Bowes has
propounded discovery it describes as “relating to (1) Beneplace’s previous enforcement of
contracts that contain provisions which are identical to the one at issue in this case and (2)
documents relating to Beneplace’s damages from the alleged breach of contract.” Pitney Bowes
Mot. Compel at 2. Mercer’s discovery requests run along the same lines, but are narrower in
scope in that they are limited to “the insurance policies at issue,” identified by Beneplace as the
source of its alleged damages. Mercer Reply at 1-2. Mercer seeks communications and broker
agreements between Beneplace and MetLife and Liberty Mutual, 1 as well as documents
identifying commissions on the insurance policies at issue, and “documents supporting
Beneplace’s claims for damages.” Mercer Reply at 1-2.
1
The parties informed the Court at the hearing that Beneplace produced the broker agreements (but not any
related communications) after the Motions to Compel were filed.
3
Both Defendants seek their attorneys’ fees and costs for bringing the Motions to Compel.
In evaluating the Motions to Compel, the court is mindful Defendants have attempted to reach
agreement (and have in fact obtained agreement) from Beneplace regarding the scope of many of
these requests, but Beneplace refused to actually produce documents subject to the parties’
agreement until after the Motions to Compel were filed. At the hearing, the Court found
Beneplace is continuing to withhold additional responsive documents.
I.
APPLICABLE LAW
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).
The scope of permissible discovery is governed by Federal Rule of Civil Procedure 26,
which was 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. As amended, Rule 26(b)(1) states:
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
4
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, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to be
discoverable.
Fed. R. Civ. P. 26(b)(1).
Though this suit was filed January 26, 2015, before the amendments to Rule 26 went into
effect, the Court finds applying the scope of discovery set out in Rule 26(b)(1) as amended to
the current dispute is both just and practical. In particular, the Court finds “the amendments to
Rule 26 do not alter the burdens imposed on the party resisting discovery discussed above.”
McKinney/Pearl Rest., L.P. v. Metro. Life Ins. Co., No. 3:14-cv-2498-B, 2016 U.S. Dist. LEXIS
1999, *11-12 (N.D. Tex. Jan. 8, 2016). Federal courts have always had the obligation to balance
proposed discovery against the needs of the case and the burden or expense of the proposed
discovery. See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011). The
amendments to Rule 26 merely highlight this duty. McKinney, 2016 U.S. Dist. LEXIS 1999 at
*11-12.
II.
PITNEY BOWES’ MOTION TO COMPEL [DKT. #38]
A. Information Relating to Use and Enforcement of Section 2.4 in Other
Contractual Relationships
Pitney Bowes’ discovery requests for information relating to prior enforcement of
Section 2.4’s language are reprinted here with Beneplace’s objections. The Magistrate Court’s
analysis and order regarding the objections and scope of production follows immediately after
each discovery request and response pair.
5
INTERROGATORY NO. 12: Identify all agreements that You
have with any other Beneplace client which contain language
identical to Section 2.4 of the MSA, that have been terminated, and
state whether You are continuing to receive commissions under
those contracts, and if not, why not.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this interrogatory as harassing, overbroad, and unduly burdensome,
to the extent it seeks information that is not reasonably calculated
to lead to the discovery of admissible evidence. A list of other
clients with whom Beneplace has contracts with language identical
to Section 2.4 of the Master Services Agreement has nothing to do
with the three issues in this case: (i) the legal obligations imposed
by Section 2.4 of the Master Services Agreement, (ii) whether
Pitney Bowes breached those legal obligations, and (iii) whether
the Mercer Defendants tortiously interfered with Pitney Bowes’
legal obligations.
Beneplace further specifically objects to this interrogatory to the
extent it seeks trade secrets or other confidential research,
development, or commercial information within the meaning of
Rule 26(a)(1)(G).
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows:
Each written contract between Beneplace and one of its clients (of
which there are approximately 300) contains a provision with
language identical to Section 2.4 of the Master Services
Agreement. Beneplace has never had a client or the client’s new
insurance agent/broker/service provider dispute the validity or
enforceability of any of those provisions.
Discovery is ongoing. Beneplace reserves the right to amend or
supplement this response as provided by the Federal Rules of Civil
Procedure or the orders of this Court.
Beneplace’s objections as to harassment, relevance, burden, and protection of trade
secrets are OVERRULED. The questions are not harassing or irrelevant, as counsel for Pitney
Bowes was able to articulate a legitimate purpose for them at the hearing—to identify “identical”
contract clauses that were terminated, and to see whether Beneplace has routinely, rarely, or
never been able to enforce the same rights to tail commissions it claims in this case. Beneplace
has not articulated any significant burden from identifying the tail commission status of 300
6
contracts it has clearly already identified and investigated to some degree. Beneplace’s concerns
about trade secrets and confidential information are addressed by the agreed Protective Order in
this case. Finally, Beneplace’s heavily-qualified discovery response, that no client or new broker
has disputed the validity of the tail commission provision, is at least partially nonresponsive. The
question as written seeks to identify whether Beneplace has actually collected tail commissions
after termination of an MSA.
At the hearing, counsel identified at least one commission producing business from the
Pitney Bowes MSA, from whom Beneplace had elected not to pursue tail commissions for
business reasons.
If the tail commission clause is indeed ambiguous, identification of this
business and elaboration on the reasons for not pursuing tail commissions from it are relevant to
the issue of how to interpret this clause through the parties’ course of dealing.
IT IS THEREFORE ORDERED that Pitney Bowes’ Motion to Compel [Dkt. #38] is
GRANTED with respect to Interrogatory No. 12. Beneplace shall supplement its response
to Pitney Bowes’ Interrogatory No. 12 to answer the question as written. The objections set
out herein are OVERRULED.
REQUEST FOR PRODUCTION NO. 13: Produce all Master
Service Agreements or other agreements that Beneplace has, or has
had within the past five (5) years with other clients that contain a
provision identical to Section 2.4.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this request as harassing, overbroad, and unduly burdensome, to
the extent it seeks information that is not reasonably calculated to
lead to the discovery of admissible evidence.
Beneplace further specifically objects to this request to the extent it
seeks trade secrets or other confidential research, development, or
commercial information within the meaning of Rule 26(a)(1)(G).
7
RESPONSE: Based on its general and specific objections,
Beneplace does not agree to produce any documents or things
responsive to this request.
Discovery is ongoing. Beneplace reserves the right to amend or
supplement this response as provided by the Federal Rules of Civil
Procedure or the orders of this Court.
The same flaws outlined with respect to Interrogatory 12 are present in Beneplace’s
burden and trade secret objections to Request for Production 13, and these objections are
OVERRULED. Beneplace’s relevance objection to Request for Production 13, however, has
merit.
The Court finds the terms of 300 unrelated but “identical” Master Service Agreements
are not relevant to the issues in this case, particularly in light of Court’s Order that Beneplace
supplement its response to Interrogatory 12.
It is therefore ORDERED that Pitney Bowes’ Motion to Compel [Dkt. #38] as to
Request for Production No. 13 is DENIED.
Beneplace’s objection to Pitney Bowes’
Request for Production No. 13 is SUSTAINED.
REQUEST FOR PRODUCTION NO. 14: If any MSA’s or
agreements that were produced in response to Request for
Production No. 13 have been terminated, then produce all
documents evidencing your attempted enforcement of the
provision that is identical to Section 2.4, receipt of commissions
following the termination of such agreements, and communications
with clients allegedly subject to such provision regarding
Beneplace’s attempted enforcement of such provisions.
SPECIFIC OBJECTIONS: Beneplace specifically objects to this
request to the extent it seeks documents or things protected by the
attorney-client privilege, work-product doctrine, or any other
statutory or common-law privilege or protection. The scope of this
request covers both privileged documents and documents prepared
in anticipation of litigation.
Beneplace further specifically objects to this request as harassing,
overbroad, and unduly burdensome, to the extent it seeks
8
information that is not reasonably calculated to lead to the
discovery of admissible evidence.
Beneplace further specifically objects to this request to the extent it
seeks trade secrets or other confidential research, development, or
commercial information within the meaning of Rule 26(a)(1)(G).
RESPONSE: Based on its general and specific objections,
Beneplace does not agree to produce any documents or things
responsive to this request.
Discovery is ongoing. Beneplace reserves the right to amend or
supplement this response as provided by the Federal Rules of Civil
Procedure or the orders of this Court.
Beneplace’s objections to Request for Production No. 14 regarding harassment,
relevance, burden, and commercial information are OVERRULED. As noted above, counsel for
Pitney Bowes was able to articulate a legitimate purpose for the information requested in
Request for Production No. 14 at the hearing—to identify other tail commission clauses that
were terminated, and to see whether Beneplace has been able to enforce the same rights to tail
commissions it claims in this case. Beneplace has not identified any significant burden from
producing communications regarding attempts to enforce the tail commission terms of
terminated contracts containing identical tail provision clauses—particularly in light of
statements made on the record at the hearing that such terminated contracts number only four to
six contracts. Finally, Beneplace’s concerns about trade secrets and confidential information are
addressed by the agreed Protective Order in this case.
IT IS THEREFORE ORDERED that Pitney Bowes’ Motion to Compel [Dkt. #38] is
GRANTED with respect to Request for Production No. 14. Beneplace shall supplement its
response to Pitney Bowes’ Request for Production No. 14 to answer the question as written.
The objections set out herein are OVERRULED.
9
REQUEST FOR PRODUCTION NO. 15:
Produce all
communications with third parties concerning other master service
agreements that contain a provision identical to Section 2.4 of the
MSA, which have been terminated, and under which you are still
receiving commissions.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this request as harassing, overbroad, and unduly burdensome, to
the extent it seeks information that is not reasonably calculated to
lead to the discovery of admissible evidence.
Beneplace further specifically objects to this request to the extent it
seeks trade secrets or other confidential research, development, or
commercial information within the meaning of Rule 26(a)(1)(G).
RESPONSE: Based on its general and specific objections,
Beneplace does not agree to produce any documents or things
responsive to this request.
Discovery is ongoing. Beneplace reserves the right to amend or
supplement this response as provided by the Federal Rules of Civil
Procedure or the orders of this Court.
Beneplace’s objections to Request for Production No. 15 regarding harassment,
overbreadth, relevance, burden, and commercial information are OVERRULED.
As noted
above, counsel for Pitney Bowes was able to articulate a legitimate purpose for the information
requested in Request for Production No. 14 at the hearing—to identify other tail commission
clauses that were terminated, and to see whether Beneplace has been able to enforce the same
rights to tail commissions it claims in this case. As noted above, Beneplace has not identified
any significant burden from identifying communications regarding the tail commission status of
300 contracts it has clearly already identified and investigated to some degree.
Finally,
Beneplace’s concerns about trade secrets and confidential information are addressed by the
agreed Protective Order in this case.
IT IS THEREFORE ORDERED that Pitney Bowes’ Motion to Compel [Dkt. #38] is
GRANTED with respect to Request for Production No. 15. Beneplace shall supplement its
10
response to Pitney Bowes’ Request for Production No. 15 to answer the question as written.
The objections set out herein are OVERRULED.
B. Information Relating to Damages
Pitney Bowes’ discovery requests for information relating to Beneplace’s alleged
damages in this case are reprinted here with Beneplace’s objections.
INTERROGATORY NO. 3: For each third party identified in
Interrogatory No. 2 [list of vendors referenced in the MSA],
identify the compensation, including, but not limited to, fees,
commissions, or profit-sharing agreements, you received or are
continuing to receive in connection with your MSA with Pitney
Bowes.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this interrogatory as harassing, overbroad, and unduly burdensome,
to the extent it seeks information that is not reasonably calculated
to lead to the discovery of admissible evidence. Merely by way of
example, information regarding the compensation Beneplace
receives from each vendor with whom Beneplace works in
connection with the Master Services Agreement has nothing to do
with the three issues in this case: (i) the legal obligations imposed
by Section 2.4 of the Master Services Agreement, (ii) whether
Pitney Bowes breached those legal obligations, and (iii) whether
the Mercer Defendants tortiously interfered with Pitney Bowes’
legal obligations.
Beneplace further specifically objects to this interrogatory to the
extent it seeks trade secrets or other confidential research,
development, or commercial information within the meaning of
Rule 26(a)(1)(G).
RESPONSE: Based on its general and specific objections,
Beneplace does not agree to provide information responsive to this
interrogatory.
Discovery is ongoing. Beneplace reserves the right to amend or
supplement this response as provided by the Federal Rules of Civil
Procedure or the orders of this Court.
Beneplace’s objections of harassment and undue burden are overruled, as Beneplace has
made no showing of any undue burden or improper purpose.
11
Beneplace’s objection to
overbreadth/relevance, however, has some merit. At the hearing, counsel for Beneplace clarified
that not all of the services packaged under the MSA at issue would be expected to generate tail
commissions. One-time discounted purchases (the example given at the hearing was a reduced
rate on a flat screen TV) and similar benefits would not, by their nature, generate any ongoing
revenue stream and therefore would not be subject to the provisions of Section 2.4 of the MSA.
IT IS THEREFORE ORDERED that Pitney Bowes’ Motion to Compel [Dkt. #38] is
GRANTED IN PART and DENIED IN PART with respect to Interrogatory No. 3.
Beneplace shall supplement its response to Pitney Bowes’ Interrogatory No. 3. to answer
the question as modified:
INTERROGATORY NO. 3: For each third party identified in
Interrogatory No. 2 [list of vendors referenced in the MSA],
identify the compensation, including, but not limited to, ongoing
post-purchase fees, commissions, or profit-sharing agreements,
you received or are continuing to receive in connection with your
MSA with Pitney Bowes.
Subject to this modification, the objections stated in Plaintiff’s initial Response are
OVERRULED. To the extent Plaintiff wishes to invoke a privilege not to produce a
responsive document, Plaintiff must produce, contemporaneously with any supplemental
document production, a privilege log outlining the basic elements of each privilege claimed
and the document or documents withheld based on that privilege.
REQUEST FOR PRODUCTION NO. 16: Produce all
communications with third parties to the MSA that contain
language that is identical to Section 2.4 of the MSA, and in which
you state what [sic] your understanding or contention of what
section 2.4 means.
SPECIFIC OBJECTIONS: Beneplace specifically objects to this
request to the extent it seeks documents or things protected by the
attorney-client privilege, work-product doctrine, or any other
statutory or common-law privilege or protection. The scope of this
12
request covers both privileged documents and documents prepared
in anticipation of litigation.
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows:
A narrowed scope of inspection and related activities will be
permitted as requested.
Discovery is ongoing. Beneplace reserves the right to amend or
supplement this response as provided by the Federal Rules of Civil
Procedure or the orders of this Court.
Mot. Compel [Dkt. #38], Ex. C and Ex. D.
Beneplace’s objections to Request for Production No. 15 regarding harassment,
overbreadth, relevance, burden, and commercial information are OVERRULED.
As noted
above, counsel for Pitney Bowes was able to articulate a legitimate purpose for the information
requested in Request for Production No. 14 at the hearing—Beneplace’s own prior statements
concerning the meaning of Section 2.4 to the third parties to the MSA that is the subject of this
lawsuit. As noted above, Beneplace has not identified any significant burden from producing
communications regarding its own statements to vendors concerning the meaning of Section 2.4.
Finally, Beneplace’s concerns about trade secrets and confidential information are addressed by
the agreed Protective Order in this case.
Plaintiff argues the request is overbroad to the extent it encompasses third parties other
than the vendors included in the Offering Package attached to the MSA in this case. The Court
agrees.
IT IS THEREFORE ORDERED that Pitney Bowes’ Motion to Compel [Dkt. #38]
is GRANTED IN PART and DENIED IN PART with respect to Request for Production
No. 16. Beneplace shall supplement its response to Pitney Bowes’ Request for Production
No 16 to answer the question as modified:
13
REQUEST FOR PRODUCTION NO. 16: Produce all
communications with third party vendors included in the
Offering Package related to the MSA that contain language that
is identical to Section 2.4 of the MSA, and in which you state what
[sic] your understanding or contention of what section 2.4 means.
To the extent Plaintiff wishes to invoke a privilege not to produce a responsive document,
Plaintiff must produce, contemporaneously with any supplemental document production, a
privilege log outlining the basic elements of each privilege claimed and the document or
documents withheld based on that privilege.
III.
MERCER’S MOTION TO COMPEL [DKT. #42]
Mercer’s requests for documents relating to Beneplace’s calculation of damages are
reprinted here, with Beneplace’s objections. The terms “Insurance Policies” and “Insurance
Carriers” are not defined in the discovery responses provided as exhibits, but at the hearing the
parties defined these terms with reference to the insurance policies and insurance carriers that
could be expected to produce ongoing commissions based on prior sales of insurance products by
Beneplace to Pitney Bowes employees during the term of the MSA.
REQUEST FOR PRODUCTION 19: Documents identifying the
commissions you received relating to the Insurance Policies.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this request as overbroad and unduly burdensome, to the extent this
request seeks all documents that would identify the commissions
received relating to the Insurance Policies. Documents sufficient
to identify those commissions will be produced.
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows: a narrowed scope of inspection
and related activities will be permitted as requested. Discovery is
ongoing. Beneplace reserves the right to amend or supplement this
response as provided by the Federal Rules of Civil Procedure or
the orders of this Court.
14
Beneplace’s objections to Mercer’s Request for Production 19 are OVERRULED. The
request is narrowly tailored to seek documents directly relevant to the calculation of damages in
this matter. Beneplace has not articulated any undue burden from the collection of the data
underlying the commission summaries it has belatedly produced.
It is therefore ORDERED that Mercer’s Motion to Compel [Dkt. #42] is GRANTED
with respect to Request for Production No. 19. Plaintiff’s objections are OVERRULED.
Plaintiff shall supplement the response to answer Request for Production No. 19 as written.
REQUEST FOR PRODUCTION 24: All documents supporting
your claims for damages, as alleged in ¶ 48 of the Complaint.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this request to the extent it seeks documents or things protected by
the attorney-client privilege, work-product doctrine, or any other
statutory or common-law privilege or protection. The scope of this
request covers both privileged documents and documents prepared
in anticipation of litigation.
Beneplace further specifically objects to this request to the extent it
seeks documents or things that constitute trade secrets or other
confidential research, development, or commercial information
within the meaning of Rule 26(a)(1)(G).
Beneplace further specifically objects to this request as vague and
ambiguous, to the extent it does not reasonably identify the
documents or things sought. By way of example, it is unclear from
the request which documents “support[] Beneplace’s claim for
damages.”
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows: a narrowed scope of inspection
and related activities will be permitted as requested. Discovery is
ongoing. Beneplace reserves the right to amend or supplement this
response as provided by the Federal Rules of Civil Procedure or
the orders of this Court.
Beneplace’s trade secret objection is overruled in light of the agreed Protective Order in this
case. Beneplace’s vagueness argument is easily cured: While Beneplace cannot be required to
15
marshal its trial evidence before such evidence is gathered, Beneplace will be expected to
support its damages claim with some sort of documentation (other than a commission
“summary”) at trial. The Federal Rules require timely supplementation of discovery responses.
Therefore, IT IS ORDERED that Defendants’ Motion to Compel [Dkt. #42] is
GRANTED IN PART with respect to Request for Production No. 24. Beneplace must
timely supplement its response to Request for Production 24 with any material it intends to
produce at trial in support of its damages claims; failure to do so may preclude Beneplace
from offering such evidence at trial.
To the extent Plaintiff wishes to invoke a privilege not to produce a responsive
document, Plaintiff must produce, contemporaneously with any supplemental document
production, a privilege log outlining the basic elements of each privilege claimed and the
document or documents withheld based on that privilege.
Mercer’s requests for documents relating to Beneplace’s communications with the third
party Providers are reprinted here, with Beneplace’s objections.
REQUEST FOR PRODUCTION 12: All documents concerning
your ability to collect commissions for the Insurance Policies in
which you are no longer the broker of record.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this request to the extent it seeks documents or things protected by
the attorney-client privilege, work-product doctrine, or any other
statutory or common-law privilege or protection. The scope of this
request covers both privileged documents and documents prepared
in anticipation of litigation.
Beneplace further specifically objects to this request to the extent it
seeks documents or things that constitute trade secrets or other
confidential research, development, or commercial information
within the meaning of Rule 26(a)(1)(G).
16
Beneplace further specifically objects to this request as vague and
ambiguous, to the extent it does not reasonably identify the
documents or things sought. By way of example, it is unclear from
the request which documents “concern[] [Beneplace’s] ability to
collect commissions for the Insurance Policies in which
[Beneplace is] no longer the broker of record.”
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows: a narrowed scope of inspection
and related activities will be permitted as requested. Discovery is
ongoing. Beneplace reserves the right to amend or supplement this
response as provided by the Federal Rules of Civil Procedure or
the orders of this Court.
Beneplace’s objections to Request for Production No. 12 regarding trade secret protection
and vagueness OVERRULED. As noted above, there is a Protective Order in this case and
defense counsel was able to articulate a legitimate purpose for the information requested in
Request for Production No. 12 at the hearing—Beneplace’s own prior statements concerning its
ability to collect tail commissions.
Therefore, IT IS ORDERED that Mercer’s Motion to Compel [Dkt. #42] is
GRANTED with respect to Request for Production 12. Plaintiff shall supplement the
response to Request for Production No. 12 to answer the question as written. Plaintiff’s
objections are overruled.
To the extent Plaintiff wishes to invoke a privilege not to produce a responsive
document, Plaintiff must produce, contemporaneously with any supplemental document
production, a privilege log outlining the basic elements of each privilege claimed and the
document or documents withheld based on that privilege.
REQUEST FOR PRODUCTION 17: Documents identifying all
of the Insurance Carriers.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this request as overbroad and unduly burdensome, to the extent this
request seeks all documents that would identify the Insurance
17
Carriers. Documents sufficient to identify the Insurance Carriers
will be produced.
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows: a narrowed scope of inspection
and related activities will be permitted as requested. Discovery is
ongoing. Beneplace reserves the right to amend or supplement this
response as provided by the Federal Rules of Civil Procedure or
the orders of this Court.
The parties seem to agree as to the proper scope of Request for Production 17, but it is
not clear from the record and argument at the hearing whether Plaintiff has actually produced the
requested documents sufficient to identify the Insurance Carriers.
Therefore, IT IS ORDERED that Mercer’s Motion to Compel [Dkt. #42] is
GRANTED with respect to Request for Production 17, and Plaintiff is ORDERED to
supplement this production if necessary.
REQUEST FOR PRODUCTION 20: All communications
between you and the Insurance Carriers relating to the Insurance
Policies.
SPECIFIC OBJECTIONS: Beneplace specifically objects to
this request as overbroad and unduly burdensome, to the extent it
seeks documents or things not reasonably calculated to lead to the
discovery of admissible evidence.
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows: a narrowed scope of inspection
and related activities will be permitted as requested. Discovery is
ongoing. Beneplace reserves the right to amend or supplement this
response as provided by the Federal Rules of Civil Procedure or
the orders of this Court.
Beneplace’s objections as to burden and overbreadth are OVERRULED. Beneplace has
not articulated any specific burden associated with collecting and producing its own prior
statements concerning its ability to collect tail commissions from the insurance carriers included
18
in the Offering Package attached to the Master Services Agreement in this case. Such statements
bear directly on the meaning of the tail commission clause, if the clause is deemed ambiguous.
Therefore, IT IS ORDERED that Mercer’s Motion to Compel [Dkt. #42] is
GRANTED with respect to Request for Production No. 20. Beneplace must supplement its
production to answer Request for Production No. 20 as written.
REQUEST FOR PRODUCTION 21: All communications
between you and any person relating to commissions you received
from or for the Insurance Policies.
SPECIFIC OBJECTIONS: Beneplace specifically objects to this
request to the extent it seeks documents or things protected by the
attorney-client privilege, work-product doctrine, or any other
statutory or common-law privilege or protection. The scope of this
request covers both privileged documents and documents prepared
in anticipation of litigation.
Beneplace further objects to this request as overbroad and unduly
burdensome, to the extent it seeks documents or things not
reasonably calculated to lead to the discovery of admissible
evidence.
RESPONSE: Subject to its general and specific objections,
Beneplace responds as follows: a narrowed scope of inspection and
related activities will be permitted as requested. Discovery is
ongoing. Beneplace reserves the right to amend or supplement this
response as provided by the Federal Rules of Civil Procedure or the
orders of this Court.
Beneplace’s objections as to burden and overbreadth are OVERRULED.
As noted
above, Beneplace has not articulated any specific burden associated with collecting and
producing conmmunications concerning its ability to collect tail commissions from the insurance
carriers included in the Offering Package attached to the Master Services Agreement in this case.
This group of communications is directly relevant to the issues of ambiguous term construction
raised by both parties.
19
Therefore, IT IS ORDERED that Mercer’s Motion to Compel [Dkt. #42] is
GRANTED with respect to Request for Production No. 21. Beneplace must supplement its
production to answer Request for Production No. 21 as written.
To the extent Plaintiff wishes to invoke a privilege not to produce a responsive
document, Plaintiff must produce, contemporaneously with any supplemental document
production, a privilege log outlining the basic elements of each privilege claimed and the
document or documents withheld based on that privilege.
IV.
ATTORNEY’S FEES
While some of Defendants’ discovery requires tailoring, the Court finds Defendants and
Beneplace have engaged in extensive negotiation over the scope of discovery and Beneplace has
failed to produce significant categories of documents—even documents it concedes are relevant
to the issues in suit. In particular, Beneplace acknowledges the existence of one or more vendors
under the MSA who would be subject to the tail commission provisions but from whom tail
commissions are not being pursued for business reasons. Beneplace has not taken any steps to
identify such vendors to Defendants. Beneplace has agreed, but failed, to provide documentation
of its commissions from MetLife and Liberty Mutual (other than “summary” documents with no
supporting data). Beneplace has delayed production of its agreements with MetLife and Liberty
Mutual until after motions to compel were filed. For these reasons, the Court finds reasonable
attorneys’ fees and costs, in an amount to be agreed by the parties or determined through
submission of competent evidence and briefing, should be awarded to both defendants for the
preparation and arguing of the respective Motions to Compel.
20
V.
CONCLUSION
IT IS ORDERED that Defendant Pitney Bowes Inc.’s Motion to Compel Plaintiff’s
Production of Documents and Responses to Interrogatories [Dkt. #38], is GRANTED IN PART
and DENIED IN PART as set out in detail above.
IT IS FURTHER ORDERED that Beneplace shall pay the reasonable attorneys’ fees and
costs incurred by Pitney Bowes in preparation of its Motion to Compel, related briefing, and
hearing preparation and attendance, this amount to be agreed by the parties or determined by
further briefing and evidence as necessary.
IT IS FURTHER ORDERED that Defendant Mercer Health & Benefits Administration
LLC’s Motion to Compel Production of Documents [Dkt. # 42] is GRANTED IN PART AND
DENIED IN PART as set out in detail above.
IT IS FURTHER ORDERED that Beneplace shall pay the reasonable attorneys’ fees and
costs incurred by Mercer in preparation of its Motion to Compel, related briefing, and hearing
preparation and attendance, this amount to be agreed by the parties or determined by further
briefing and evidence as necessary.
IT IS FURTHER ORDERED that Plaintiff Beneplace, Inc., shall supplement its
production in compliance with this Order on or before March 28, 2016. To the extent Beneplace
asserts any privilege as the reason for withholding otherwise relevant documents, Beneplace
shall produce a privilege log on the same date as its supplemental production.
SIGNED March 7, 2016
_______________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?