J White L.C. et al v. Wiseman et al
Filing
264
MEMORANDUM DECISION AND ORDER granting 211 Motion for Short Form Discovery. SEE ORDER FOR DETAILS. Signed by Magistrate Judge Jared C. Bennett on 7/6/2020. (lnp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
J WHITE, L.C., et al.,
MEMORANDUM DECISION
AND ORDER
Plaintiffs,
Case No. 2:16-cv-01179-CW-JCB
v.
District Judge Clark Waddoups
GREGORY WISEMAN, et al.,
Magistrate Judge Jared C. Bennett
Defendants.
This case was referred to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C.
§ 636(b)(1)(A). 1 Due to Judge Warner’s retirement, this case is now referred to Magistrate Judge Jared C.
Bennett. 2 Before the court is Defendants Gregory Wiseman, GWSVR, LLC, Apartment Management
Consultants, LLC, and AMC-CA’s (collectively, “AMC Defendants”) Short Form Discovery Motion. 3
Under DUCivR 7-1(f), the court has concluded that oral argument is unnecessary and therefore decides
the motion on the written memoranda. Having reviewed the motion, parties’ briefs, and relevant law, the
court grants the motion for the reasons set forth below.
BACKGROUND
Approximately one year ago, Plaintiffs J White, L.C., WWIG, LLC, and WW-ARIS, LLC
(collectively, “J White”) certified that their document production was complete. After reviewing that
discovery production, the AMC Defendants identified significant problems with the production that
rendered it essentially nonresponsive to the discovery requests. For example, J White’s production
omitted whole categories of documents, generated multiple documents as single PDF documents, and
1
ECF No. 60.
ECF No. 35.
3
ECF No. 211.
2
delivered electronically stored information (“ESI”) without the native file metadata that is essential for
verification (“Original Production”). Admitting their mistake, J White agreed to replace their document
production with a new production.
The AMC Defendants received a portion of the replacement production (“Replacement
Production”) on December 24, 2019, and were told to expect the remaining portion of documents in the
next several weeks. 4 An initial review of the documents revealed that the Replacement Production
suffered from its own set of deficiencies. Apart from being incomplete, the Bates numbers used in the
Replacement Production do not correspond to the Bates numbers used in the Original Production. The
AMC Defendants also allege that the Replacement Production is so haphazardly organized that it is
impossible to ascertain which documents are replaced without incurrence of substantial burden and cost.
Without corresponding Bates numbers or another system for organization, the AMC Defendants are
unable to determine which documents are “designated,” “re-designated,” or “undesignated” under the
standing protective order—important classifications that have been negotiated at length by the parties
throughout the case.
In the instant motion, the AMC Defendants seek to compel J White to complete the document
production and to organize and label the documents with corresponding Bates numbers to enable them to
identify which documents are being replaced. In response, J White argues that they should not be required
“to engage in [such] a time consuming and unnecessary process” when nothing in the rules requires them
to do so. 5 J White does not refute that the Replacement Production is incomplete.
4
As of the date of the instant motion, the AMC Defendants have not received the remaining documents,
and as of the date of this Order, the court has not been made aware that the AMC Defendants have since
received the remaining documents.
5
ECF No. 215 at 3.
2
LEGAL STANDARD
District courts are entitled to broad discretion and authority in controlling and managing pretrial
discovery matters to ensure that cases move to a timely and orderly conclusion. Smith v. Ford Motor Co.,
626 F.2d 784, 794 (10th Cir. 1980). The Federal Rules of Civil Procedure allow for broad discovery of
material that does not need to be admissible at trial. Fed. R. Civ. P. 26(b)(1); Oppenheimer Fund. Inc., v.
Sanders, 437 U.S. 340, 351–52 (1978). Discovery is designed to help define and clarify the issues in a
case. Hickman v. Taylor, 329 U.S. 495, 501 (1947).
Fed. R. Civ. P. 34 governs requests for production of documents and ESI. Rule 34(b)(1)(A) states
that a requesting party “must describe with reasonable particularity each item or category of items to be
inspected.” Rule 34(b)(2)(E)(i) permits a party responding to a request for production to either “produce
documents as they are kept in the usual course of business” or “organize and label them to correspond to
the categories in the request.” Additionally, when the requested documents are voluminous, the
responding party has an obligation to organize the documents in such a manner that the requesting party
may determine, with reasonable effort, which documents are responsive to its requests. Armor Screen
Corp. v. Storm Catcher, Inc., No. 07-81091-CIV, 2009 WL 291160, at *5 (S.D. Fla. Feb. 5, 2009)
(explaining that a party exercising Rule 34’s option to produce records as they are kept in the usual course
of business should organize the documents in such a manner that the requesting party can reasonably
identify which documents are responsive to its requests); Ferrito v. IKON Office Sols., Inc., No. 99-1496MLB, 2000 WL 1477188, at *2 (D. Kan. Sept. 17, 2000) (stating the production of 2,000 pages of
documents that were neither Bates stamped nor otherwise organized did not satisfy Rule 34); Stiller v.
Arnold, 167 F.R.D. 68, 71 (N.D. Ind. 1996) (finding discovery sanctions were warranted where producing
party failed to organize and label the 7,000 documents it produced).
3
ANALYSIS
In this case, the Replacement Production does not comply with Rule 34’s production standards
because the documents are not organized, labeled, or otherwise arranged in a way that facilitates the AMC
Defendants’ ability to understand the production. The Replacement Production contains only 1,800 out of
the 5,000 documents produced in the Original Production. In addition to being incomplete, the Bates
numbers in the Replacement Production do not match the Bates numbers from the Original Production
and are not organized in any rational or coherent way to link the two deficient productions together.
Although J White is correct in asserting that there is no rule, per se, that requires it to match Bates
numbers between two productions, this fails to consider this Court’s discretion to regulate discovery to
ensure that it is relevant and proportional to the needs of this case. Fed. R. Civ. P. 26(b). Because J
White’s Original Production failed to abide by the terms of the original request for documents, imposing
the burden upon the requesting party to decipher the connection between the Original and Replacement
Production is not proportional to the needs of this case. The party that caused the problem in the first
place should be responsible for the remedy.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the AMC Defendants’ Short Form
Discovery Motion 6 is GRANTED. J White shall produce complete and full responses to the production
requests at issue. The production of documents shall be Bates stamped and indexed to identify which
documents are new, which documents are replacements, and which documents are responsive to which
requests. The court orders J White to comply within 30 days of this Order.
Because the court granted the AMC Defendants’ motion, Fed. R. Civ. P. 37(a)(5) provides that
“the court must” require the nonmoving party and/or its counsel “to pay the movant’s reasonable
6
ECF No. 211.
4
expenses incurred in making the motion, including attorney’s fees” after providing the nonmoving party
with “an opportunity to be heard” unless the nonmoving party’s opposition to the AMC Defendants’
motion was either “substantially justified” and/or whether there are “other circumstances that make an
award of expenses unjust.” Given that Rule 34 is silent on the procedure for organizing a corrected
production of documents and J. White’s counsel who opposed AMC Defendants’ motion has withdrawn,
the court finds “other circumstances” make an award of fees unjust. However, if J. White fails to produce
and properly organize the remaining documents in its Replacement Production according to the terms in
this Order, then the court will not hesitate to award fees if a subsequent motion to compel granted.
IT IS SO ORDERED.
DATED this 6th day of July, 2020.
BY THE COURT:
JARED C. BENNETT
United States Magistrate Judge
5
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?