O'Hara et al v. Capouillez et al

Filing 33

ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL: Granting in part and Denying in part 22 Motion to Compel; Parties to confer and submit a proposed protective order by 12/24/13; written objections to this Order due within 14 days. Signed by Magistrate Judge James E. Seibert on 12/18/13. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL C. O’HARA and
DEIRDRE J. O’HARA,
Plaintiffs
v.

Civil No.5:13-cv-119

WILLIAM CAPOUILLEZ and
GEOLOGICAL ASSESSMENT AND
LEASING,
Defendants.
ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT GRANTING IN
PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL
I. INTRODUCTION
This action involves claims against Defendants for the unauthorized practice of law.
Plaintiffs allege that they entered into an agreement with Defendants in June of 2006 wherein
Defendants were to act as Plaintiffs’ representatives in the negotiation and execution of an oil and
gas lease of their mineral rights. Plaintiffs initially filed this action on July 30, 2013, in the Circuit
Court of Ohio County, West Virginia. On August 29, 2013, Defendants removed the case to this
Court pursuant to 28 U.S.C. §§ 1441 and 1446. Plaintiffs filed a Motion to Remand1 on September
17, 2013, and Defendants filed a Motion to Compel Arbitration2 and a Motion to Stay Discovery
Pending a Ruling on the Motion to Compel Arbitration3 on November 22, 2013. These three motions
are still pending.

1

Dkt. No. 6.

2

Dkt. No. 18.

3

Dkt. No. 20.

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The instant matter is before the Court on Plaintiffs’ Motion to Compel Complete Discovery
Responses filed on December 2, 2013.4 Defendants filed a Response to Plaintiffs’ Motion on
December 13, 2013.5 On December 17, 2013, this Court held an evidentiary hearing and argument.
Plaintiffs appeared by Daniel J. Guida, Esq., and Jonathan E. Turak, Esq. Defendant appeared by
Robert C. James, Esq. Plaintiffs offered five exhibits into evidence. No testimony was presented at
the hearing.
II. DISCUSSION
Plaintiffs seek further responses to Requests for Production 1, 4, 7, 9, 12, 14, and 15, and
Interrogatories 3, 4, 5, and 6. Procedurally, Defendants contend that Plaintiffs’ discovery motion is
premature in light of Plaintiffs’ pending Motion for Remand and Defendants’ pending Motion to
Compel Arbitration and pending Motion to Stay Discovery. Substantively, Defendants object that
Plaintiffs’ discovery requests are vague and ambiguous, overly broad, irrelevant, and seek
confidential information.
A. Procedural Arguments
Defendants contend that “Plaintiffs’ Motion to Compel should not be addressed at this time
as a default stay exists in the Court pursuant to the Defendants’ Motion to Stay Pending Ruling on
Motion to Stay and to Compel Arbitration.” Defendants cite no authority, and indeed there is none,
for the proposition that the undersigned can hold discovery in abeyance in the absence of an Order
by the District Judge staying this case. Unless and until such a stay of proceedings is ordered in this
case, Plaintiffs’ Motion to Compel is ripe for decision. Accordingly, Defendants’ procedural

4

Dkt. 22.

5

Dkt. 29.

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objections are overruled.
B. Scope of Discovery
In general, parties in a civil action enjoy broad discovery, and “the discovery rules are given
‘a broad and liberal treatment.’” Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal
Co. Inc., 967 F.2d 980, 983 (4th Cir.1992) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947).
Unless limited by court order, the scope of discovery is governed by Federal Rule of Civil Procedure
26(b)(1) which states “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). In the discovery context, “[r]elevant
information need not be admissible at the trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence.”Id. However, [e]ven assuming that...information is relevant
(in the broadest sense), the simple fact that requested information is discoverable...does not mean
that discovery must be had.” Nicholas v. Wyndham Intern., Inc., 373 F.3d 537, 543 (4th Cir. 2004).
If a party believes that a discovery request exceeds this broad scope of allowable discovery,
it may object, but “the party resisting discovery has the burden of clarifying, explaining and
supporting its objections.” Herbalife Int’l, Inc. v. St. Paul Fire & Marine Ins.Co., No. 05-CV-41,
2006 U.S. Dist. LEXIS 68744, at *1, *17 (N.D.W.Va. Sept. 21, 2006). “The mere recitation of the
familiar litany that an interrogatory or document production request is overly broad, burdensome,
oppressive and irrelevant will not suffice.” PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 293
(N.D.W.Va. 2004). These boilerplate objections to discovery requests are highly disfavored in the
Fourth Circuit. See e.g., Hager v. Graham, 267 F.R.D. 486, 492 (N.D.W.Va. 2010) (“[G]eneral
objections to discovery, without more, do not satisfy the burden of the responding party . . . because
they cannot be applied with sufficient specificity to enable courts to evaluate their merits.”); Mills

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v. East Gulf Coast Preparation Co., LLC, 259 F.R.D. 118, 132 (S.D.W.V. 2009) (“[B]oilerplate
objections regurgitating words and phrases from Rule 26 are completely unacceptable.”); Mancia
v. Mayflower Textile Svcs. Co., 253 F.R.D. 354 (D. Md. 2008) (courts disapprove of a general
objection asserted “to the extent” that it applies).
Here, many of Defendants’ objections are impermissible boilerplate objections. Defendants
object that nine of the eleven requests are unduly vague and ambiguous, particularly with reference
to the words “consultant” or “representative.” The terms “consultant” and “representative” are
neither vague nor ambiguous, and Defendants should use common-sense, as well as the definitions
Plaintiffs helpfully provided in their discovery requests, in responding to requests using those terms.
See Deakins v. Pack, 2012 WL 242859, at *12 (S.D.W.V. Jan. 25, 2012) (quoting McCoo v. Denny's
Inc., 192 F.R.D. 675, 694 (D.Kan.2000)) (“A party responding to discovery requests ‘should
exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in
interrogatories....If necessary to clarify its answers, the responding party may include any reasonable
definition of the term or phrase at issue.’”). All of Defendants’ objections on this basis are overruled.
Defendants also object to several of the requests because they seek confidential and sensitive
information. This objection also lacks merit. See Susko v. City of Weirton, 2011 WL 98557 at *5
(N.D.W.V. January 12, 2011) (“Although information is not shielded from discovery on the sole
basis that the information is confidential, a party may request the court to enter a protective order
pursuant to Fed.R.Civ.P. 26(c) as a means to protect such confidential information.”). At the hearing,
Defendants requested that the Court enter a protective order. Accordingly, the Court ORDERED
the parties to jointly submit a proposed protective order to the Court by December 24, 2013. The
Court further DIRECTED that if the parties cannot come to an agreement about the protective

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order, each party shall submit a proposed protective order and the Court will decide which shall
govern discovery in this case.
The crux of the discovery dispute centers on relevance and broadness. Many of Plaintiffs’
requests seek information about Defendants’ previous consulting activities related to oil and gas
leases. Defendants contend that these requests are overly broad because they are not properly
limited to the relevant time period or to the state of West Virginia, which is where the conduct
alleged in the Complaint occurred. Defendants argue that information pertaining to “any state other
than West Virginia is clearly not relevant to the issue pending here–i.e. whether the Defendants
engaged in the unauthorized practice of law under West Virginia law.” Defendants also maintain that
because Plaintiffs’ lease was entered into in or around 2007, the scope of discovery should be
limited to consulting activities occurring in 2007. Plaintiffs, on the other hand, argue that
information about all of Defendants’ consulting activities, no matter where or when the activities
took place, is relevant to their claims because it will allow them to discover the nature and extent
of Defendants’ consulting operation which may lead to the discovery of admissible evidence related
to their specific claims.
Although the scope of discovery is broad, it is not limitless, and the Court has “great
flexibility to order only that discovery that is reasonable for a case, and to adjust the timing of
discovery and apportion costs and burdens in a way that is fair and reasonable.” Marens v.
Carrabba’s Italian Grill, Inc., 196 F.R.D. 35, 37-38 (D.Md. 2000); see also McDougal-Wilson v.
Goodyear Tire & Rubber Co ., 232 F.R.D. 246, 249 (E.D.N.C.2005) (finding Plaintiffs’ discovery
requests to be overly broad and limiting their scope geographically and temporally to protect
Defendant from oppression and undue burden and expense). The Court agrees that the scope of

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discovery into Defendants’ prior consulting activities should be limited to information about
Defendants’ consulting activities with respect to oil and gas leases entered into for properties located
in West Virginia. Plaintiffs acknowledged at the motion hearing that they are not even sure
Defendants conducted activities in some of the states for which they are requesting information.
Discovery requests must be based on something more than “pure speculation or conjecture.”
Tottenham v. World Gaming Corp., 2002 WL 1967023 at *2 (S.D.N.Y. June 21, 2002).
However, the Court also finds that Plaintiffs are entitled to discovery into Defendants’
consulting activities in West Virginia for the entire time period Defendants were so operating in
West Virginia. At the hearing, counsel for Defendants averred that he was not certain of the exact
time frame Defendants were conducting consulting activities in West Virginia. Because the Court
finds that Plaintiffs are entitled to discovery for the entire time period Defendants were operating
in West Virginia, the Court ORDERED Defendants to file a pleading with the Court identifying the
exact time frame that Defendants were conducting consulting activities related to oil and gas leases
in the State of West Virginia. Counsel for Defendants shall file a document stating the exact start
date and the exact end date of Defendants’ consulting activities in the State of West Virginia by
December 24, 2013. All of Plaintiffs’ discovery requests will be geographically and temporally
limited accordingly unless otherwise specified below.
C. Plaintiffs’ Discovery Requests
With this framework established, the Court will address each of the discovery requests at
issue.
Request for Production 1: A copy of each and every exhibit that
was attached to the depositions of William Capouillez on November
15, 2012, and February 15, 2013, in the case of William A.
Capouillez t/d/b/a Geological Assessment & Leasings vs. Laurel Hill
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Game and Forestry Club.
Defendants initially responded that they were attempting to obtain these documents and that
they would supplement their response upon receipt. In their Response brief, Defendants aver that
they have secured the requested documents and that they “stand fully prepared to provide the
exhibits once the Motion to Compel Arbitration has been addressed, but believe that it is otherwise
premature to be providing any additional materials.” Because the Court overruled Defendants’
procedural objections, Plaintiffs’ Motion with respect to Request for Production 1 is GRANTED
AS FRAMED.
Request for Production 4: A copy of all executed oil and gas leases,
including any attachments, amendments, extensions or corrections,
that were entered into by mineral rights owners and any gas company
wherein you acted as a consultant or representative of said mineral
rights owner.
The scope of this request must be limited as discussed above. Accordingly, Plaintiffs’ Motion
with respect to Request for Production 4 is GRANTED IN PART and DENIED IN PART.
Defendants shall produce responsive documents relating to oil and gas leases for properties located
in the State of West Virginia during the time period Defendants conducted consulting or
representation activities in West Virginia.
Request for Production 7: A copy of all executed contracts or
agreements, including any attachments, extensions or corrections, for
consulting services in the oil and gas business that either or both
Defendants used in the State of West Virginia or Commonwealth of
Pennsylvania.
The scope of this request must be limited as discussed above. Accordingly, Plaintiffs’ Motion
with respect to Request for Production 7 is GRANTED IN PART and DENIED IN PART.
Defendants shall produce responsive documents relating to oil and gas leases for properties located

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in the State of West Virginia during the time period Defendants conducted consulting or
representation activities in West Virginia.

Request for Production 9: A copy of any advertisements, brochures,
promotional matters, and/or marketing materials of any kind or nature
that you presented to prospective clients or landowners in the State
of West Virginia or Commonwealth of Pennsylvania regarding your
consulting work in the oil and gas business.
The scope of this request must be limited as discussed above. Accordingly, Plaintiffs’ Motion
with respect to Request for Production 9 is GRANTED IN PART and DENIED IN PART.
Defendants shall produce responsive documents relating to prospective clients or landowners in the
State of West Virginia during the time period Defendants were conducting consulting or
representation activities in West Virginia.
Request for Production 12: A copy of any and all communications
of any kind or nature including any memos, e-mails, writings, letters,
etc., by and between you and Range relating to the lease.
Unlike many of Plaintiffs’ requests, this request seeks information about the lease at issue
in this case. Defendants objected that the request is “overly broad, vague and ambiguous” and
interpreted it to be referring only to “the time around securing the lease and/or its execution.” The
Court finds this request is not overly broad because it is limited to communications relating to the
lease in question. Accordingly, Plaintiffs’ Motion with respect to Request for Production 12 is
GRANTED. Defendants shall respond to the request again without raising improper objections.
Request for Production 14: A copy of any records, worksheets,
spreadsheets, papers, writings, or documents which shows how much
money you have received in fees for consulting work in the State of
West Virginia.
Plaintiffs’ Motion with respect to Request for Production 14 is GRANTED AS FRAMED.
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Request for Production 15: A copy of any records, worksheets,
spreadsheets, papers, writings, or documents which shows how much
money you have received in fees for consulting work in the
Commonwealth of Pennsylvania.
Plaintiffs’ Motion with respect to Request for Production 15 is DENIED.
Interrogatory 3: Defendants acted as consultants or representatives
to various landowners or mineral rights owners relative to oil and gas
leases. Please identify each such time you acted as a consultant or
representative, including: (a) the name of each landowner or mineral
rights owner; (b) description and location of property (state, county,
district, acreage, tax identification number); (c) date and nature of the
consulting or representation; and (d) whether there was a written or
oral agreement regarding the same.
The scope of this request must be limited as discussed above. Accordingly, Plaintiffs’ Motion
with respect to Interrogatory 3 is GRANTED IN PART and DENIED IN PART. Defendants shall
respond to the interrogatory with information relating to oil and gas leases for properties located in
the State of West Virginia during the time period Defendants conducted consulting or representation
activities in West Virginia.
Interrogatory 4: In the following areas, please set forth the total
number of acres of property that you acted as a consultant or
representative for landowners or mineral rights owners: (a) the State
of West Virginia; (b) Hancock County, West Virginia; (c) Brooke
County, West Virginia; (d) Ohio County, West Virginia; (e) Marshall
County, West Virginia; (f) the Commonwealth of Pennsylvania; and
(g) any other State (for each such State, please identify the State and
amount of acreage in each one).
The scope of this request must be limited as discussed above. Accordingly, Plaintiffs’ Motion
with respect to Interrogatory 4 is GRANTED IN PART and DENIED IN PART. Defendants shall
answer parts (a)-(e) of this interrogatory.
Interrogatory 5: How much money did you receive from each
landowner or mineral rights owner for “consulting” services under
any agreement or contract for: (i) bonus rental payments; (ii) delay
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rental payments; and (iii) royalty payments.
The scope of this request must be limited as discussed above. Accordingly, Plaintiffs’ Motion
with respect to Interrogatory 5 is GRANTED IN PART and DENIED IN PART. Defendants shall
respond to the interrogatory with information relating to oil and gas leases for property in the State
of West Virginia during the time period Defendants were conducting consulting or representation
activities in West Virginia.
Interrogatory 6: Regarding the preceding interrogatory, please
identify each such owner, their address, description and location of
property (state, county, district, acreage, tax information number,
parcel number), date(s) that you received said amount(s), and fee
structure for each payment (i.e., how the payment was calculated).
The scope of this request must be limited as discussed above. Accordingly, Plaintiffs’ Motion
with respect to Interrogatory 6 is GRANTED IN PART and DENIED IN PART. Defendants shall
respond to the interrogatory with information relating to oil and gas leases for property in the State
of West Virginia during the time period Defendants were conducting consulting or representation
activities in West Virginia.
III. CONCLUSION
Plaintiffs’ Motion is GRANTED IN PART and DENIED IN PART because information
about Defendants’ consulting activities related to oil and gas leases in West Virginia is reasonably
calculated to lead to the discovery of admissible evidence. However, requests for information about
activities outside of West Virginia are overbroad. Defendants are ORDERED to respond to
Plaintiffs’ discovery requests, as directed by this Order, within fourteen (14) days of the date of this
Order. Defendants are also ORDERED to file a document with the Court stating the exact start date
and the exact end date of Defendants’ consulting activities in the State of West Virginia by

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December 24, 2013. Finally, both parties are DIRECTED to confer and to submit a proposed
protective order to the Court by December 24, 2013. If the parties cannot come to an agreement
about the protective order, each party shall submit a proposed protective order to the Court by
December 24, 2013, and the Court shall decide which protective order will govern.
Filing of objections does not stay this Order.
Any party may, within fourteen [14] days of this Order, file with the Clerk of the Court
written objections identifying the portions of the Order to which objection is made, and the basis
for such objection. A copy of such objections should also be submitted to the District Court Judge
of Record. Failure to timely file objections to the Order set forth above will result in waiver of the
right to appeal from a judgment of this Court based upon such order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro
se and any counsel of record, as applicable.
IT IS SO ORDERED.
/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE

DATED: December 18, 2013

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