Scarsella Bros., Inc. v. VAK Construction Engineering Services, LLC

Filing 29

ORDER striking in part and denying in part Defendant's 21 Motion to Compel signed by Judge Richard A Jones.(TH)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SCARSELLA BROS., INC.,

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Plaintiff,
Case No. C16-00431 RAJ
v.
ORDER
VAK CONSTRUCTION ENGINEERING
SERVICES, LLC,
Defendant.

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This matter comes before the Court on Defendant VAK Construction Engineering
Services, LLC’s (“VAK”) Motion to Compel Production of Documents. Dkt. # 21.
Plaintiff Scarsella Bros., Inc. (“Scarsella”) opposes the motion. For the reasons below,
the Court STRIKES in part and DENIES in part VAK’s motion.
Scarsella filed a lawsuit against VAK claiming damages arising out of alleged
errors related to the State Route 522 bridge construction project near Monroe,
Washington. Dkt. #1. On July 27, 2017, VAK filed a motion to compel, claiming that
Scarsella failed to provide all documents responsive to VAK’s discovery requests. VAK
requested that the Court compel Scarsella to produce these remaining documents. Dkt.
#21. Scarsella represented in its Response to VAK’s Motion that it would produce all
remaining records responsive to VAK’s requests by August 11, 2017. Dkt. #24. VAK
received documents from Scarsella and indicated that no order compelling discovery
would be necessary if the documents received fulfilled its requests. Dkt. #26. Despite

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ORDER – 1

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receiving documents from Scarsella, VAK has not withdrawn its’ motion to compel, and

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requests that the Court award VAK the costs it incurred in bringing this Motion.

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Dkt. #26. As neither party has indicated that Scarsella owes VAK any further document

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production, VAK’s motion is moot to the extent that it seeks to compel production of

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documents. Ryness Co. v. Builder Sales Grp., LLC, No. C10-1096-JCC, 2011 WL

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2532691, *1 (W.D. Wash. June 24, 2011).

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Under Federal Rule of Civil Procedure 37, “[i]f the motion [to compel] is

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granted—or if the disclosure or requested discovery is provided after the motion was

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filed—the court must, after giving an opportunity to be heard, require the party or

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deponent whose conduct necessitated the motion, the party or attorney advising that

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conduct, or both to pay the movant’s reasonable expenses incurred in making the motion,

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including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). The Court is precluded from

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awarding expenses if: “(i) the movant filed the motion before attempting in good faith to

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obtain the disclosure or discovery without court action; (ii) the opposing party’s

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nondisclosure, response, or objection was substantially justified; or (iii) other

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circumstances make an award of expenses unjust.” Id.

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Scarsella claims its delayed production is substantially justified because of the

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“tens of thousands of documents” that had to be reviewed in order to discern which

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documents were responsive to VAK’s requests. Dkt. #24. VAK provided several email

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exchanges as exhibits to its Motion which indicate that Scarsella was engaged in a

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“rolling document production,” and that it was actively working to provide all requested

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documents to VAK. Dkt. #22. Considering the volume of documents that had to be

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reviewed and the fact that the parties have not indicated that there are any outstanding

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document requests, the Court finds that awarding VAK the costs incurred in making this

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Motion would be inappropriate.

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ORDER – 2

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For the reasons stated above, the Court STRIKES in part as moot VAK’s motion

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to the extent it seeks to compel documents from Scarsella. The Court DENIES in part

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VAK’s motion to the extent it seeks the award of reasonable expenses under Rule

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37(a)(5).

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DATED this 29th day of August, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 3