Hydro Engineering v. Petter Investments
MEMORANDUM DECISION and ORDER granting 137 Motion to Compel; granting 137 Motion for Extension of Time. See Order for details. Signed by Magistrate Judge Evelyn J. Furse on 12/17/2013. (tls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
HYDRO ENGINEERING, INC.,
MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
COMPEL (ECF No. 137)
Case No. 2:11-cv-00139-RJS-EJF
PETTER INVESTMENTS, INC., et al.,
District Judge Robert J. Shelby
Magistrate Judge Evelyn J. Furse
Plaintiff Hydro Engineering, Inc. (“Hydro”) filed its Motion to Compel Petter
Investment’s, Inc. to Produce Invoice Summaries and to Extend the Expert Report Deadline on
July 18, 2013. (ECF No. 137.) In two previous cases between the parties litigated in the
Western District of Michigan, and earlier in this case, Petter Investments, Inc. (“Petter”) provided
invoice reports identifying Petter’s sales. Hydro now asks this Court to compel Petter to produce
invoice reports and to extend the expert reports deadline. The Court has carefully considered the
Motion and Memoranda submitted for and against Hydro’s Motion and GRANTS the Motion. 1
Hydro’s interrogatory number thirteen asks Petter to identify all of Petter’s sales to
certain customers. (See Pl.’s Br. Ex. M, Interrog. No. 13, ECF No. 137-13.) Petter responded to
this interrogatory with a production of business records under Federal Rule of Civil Procedure
33(d)(1) limited to those sales in which Mr. Pelletier had involvement. (Id.) In the answer,
Petter further asserted that the burden of determining the requested information from the
The Court determined it could decide the Motion based on the briefing and does not
need oral argument. See DUCivR 7-1(f).
“business records is substantially the same for Hydro as it is for Petter.” (Id.) Because of the
difficulty and cost of analyzing the documents Petter produced, Hydro now asks for invoice
reports from Petter. (Pl.’s Br. 3, ECF No. 137.)
Petter only produced invoices and financial documents for transactions in which Mr.
Pelletier received a commission. (Mem. Opp’n 3, ECF No. 140.) As set forth in this Court’s
recently issued order on project files (ECF No. 202), the Court strikes Petter’s objection that its
response should only include transactions for which Mr. Pelletier received a commission. Thus
this Court ORDERS Petter to amend its response to include all transactions.
Petter further argues Federal Rule of Civil Procedure 34 does not require responding
parties to create summaries in response to requests for production. (Mem. Opp’n 6–7, ECF No.
140.) Petter correctly states the law regarding production under Rule 34. See Flying J Inc. v.
Pilot Travel Centers LLC, No. 1:06-CV-00030-TC, 2009 WL 1835000, at *2 (D. Utah June 25,
2009) (“The court does not read Fed.R.Civ.P. 34 or its prior order on similar data as permitting a
request for production to require a responding party to create compilations and summaries.”).
However, Petter produced business records in lieu of an interrogatory answer under Rule 33.
Rule 33 permits parties to respond to an interrogatory by identifying business records
from which the requesting party can derive an answer. Fed. R. Civ. P. 33(d)(1). But parties may
only do so “if the burden of deriving or ascertaining the answer will be substantially the same for
either party.” Fed. R. Civ. P. 33(d). Petter admits it created and produced invoice reports in the
past, and Petter can still produce them. (See Mem. Opp’n 5, ECF No. 140; Pl.’s Reply 3, ECF
No. 143.) Petter apparently selectively created certain invoice reports for its damages case and
for use by its own damages expert. (See Pl.’s Reply 3–4, ECF No. 143.) The Court finds that
Petter can easily create the reports Hydro requests. Hydro would have to expend a great deal
more effort than Petter to produce the same result. Because the burden does not fall equally on
either party, Petter’s response to the interrogatory remains inadequate. See Fed. R. Civ. P.
33(d)(1); see also, Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007)
(noting “if a party has access and the practical ability to possess documents not available to the
party seeking them, production may be required”); Partlow v. City of Jacksonville, No. 306-CV892-J-25HTS, 2007 WL 2565942, at *1 (M.D. Fla. Aug. 31, 2007) ( holding a party must
produce documents it possesses “regardless of whether it can be obtained from a third party”).
The Court orders Petter to provide Hydro with invoice reports for all Petter sales from
July 2008 to the present.
The Court will also reopen expert discovery to allow each party to modify its damages
expert reports as needed based on the recent discovery rulings. The Court denies Hydro’s request
for sanctions finding the remedy of production and the expert discovery extension sufficient to
remedy the harm.
For the reasons set forth above, the Court GRANTS Hydro’s Motion (ECF No. 137).
The Court FURTHER ORDERS Petter to provide Hydro with invoice reports for Petter’s
sales from July 2008 to the present within fourteen days of this Order’s entry.
The Court FURTHER REOPENS the damages expert discovery deadline to allow Hydro
to update its damages expert report thirty days from the latter of the date Petter provides Hydro
with invoice reports in accordance with this order or the date Petter produces the project files as
this Court ordered on December 16, 2013, (see ECF No. 202). Petter will then have thirty days
from the date Hydro serves its damages expert report to update its damages expert report.
Dated this 17th day of December, 2013.
BY THE COURT:
Evelyn J. Furse
United States Magistrate Judge
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