Citynet, LLC v. Frontier West Virginia, Inc., et al.
Filing
387
MEMORANDUM OPINION AND ORDER directing that the Third 346 MOTION to Compel filed Plaintiff/Relator Citynet, LLC, is DENIED. Signed by Magistrate Judge Cheryl A. Eifert on 6/30/2022. (cc: counsel of record) (msa)
Case 2:14-cv-15947 Document 387 Filed 06/30/22 Page 1 of 7 PageID #: 9028
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CITYNET, LLC, on behalf of
United States of America,
Plaintiff/Relator,
v.
Case No.: 2:14-cv-15947
FRONTIER WEST VIRGINIA, INC.,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Third Motion to Compel filed by Plaintiff/Relator
Citynet, LLC, (“Citynet”). (ECF No. 346). Defendants Frontier West Virginia, Inc., et al.,
(collectively “Frontier”) filed a response in opposition to the motion, (ECF No. 367), to
which Citynet filed a reply, (ECF No. 371). For the reasons that follow, the Court DENIES
Citynet’s Third Motion to Compel.
I.
Relevant Facts and Procedural History
As stated in prior orders, Citynet asserts in this qui tam action filed on behalf of
the United States of America that its competitor, Frontier, misused more than 40 million
dollars of federal grant funding under the Broadband Technology Opportunities Program
(BTOP) to build a statewide broadband network that excluded all competition. (ECF Nos.
1, 30).
On May 27, 2022, Citynet filed the instant motion, seeking an order compelling
Frontier to produce OTDR (Optical Time Domain Reflectometer) data, which it contends
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shows, among other things, the length of fiber optic cable. (ECF No. 347 at 2-3). Citynet
notes that one of its allegations in this case is that Frontier intended to build, and in fact
built, considerably less miles of fiber optic cable than it stated in the BTOP grant
application. (ECF No. 347 at 2). Citynet further states that it propounded discovery
requests on May 24, 2018, including Request for Production of Documents Number 15
(“RFP 15”), which asked Frontier to produce “all documents, including but not limited to,
email correspondence between [Frontier] and the [West Virginia Executive Office]
regarding the number of miles of fiber to be constructed for the BTOP grant project.” (Id.);
see (ECF No. 346-1 at 12).
According to Citynet, although Frontier produced thousands of documents, it did
not produce the OTDR data, which Citynet claims is responsive to RFP 15 and is the best
and most definitive evidence of the length of fiber optic cable that Frontier constructed to
the millimeter. (ECF No. 347 at 2, 6, 7). Citynet supposedly first learned of the OTDR data
during a deposition of Frontier employee Mark McKenzie on April 27, 2022, and it
requested that Frontier produce it, but Frontier refused, and this motion ensued. (Id. at
1, 2, 8). Citynet asks, in the event that the Court finds that OTDR data is not responsive
to RFP 15, that the Court reopen discovery and allow Citynet “leave to file a discrete
request for production on those documents.” (Id. at 8).
In response to the motion to compel, Frontier asserts that the OTDR data is not
responsive to any discovery request. (ECF No. 367 at 1). Frontier cites that RFP 15 asked
for documents regarding the number of miles of fiber to be constructed for the BTOP
grant project, not documents concerning what was ultimately constructed. (Id. at 3, 4).
Also, Frontier claims that the OTDR data does not accurately show the length of fiber
constructed because Frontier’s only purpose in conducting the OTDR tests was to make
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sure there was a clear light path (no obstructions or defects in the cables) and it did not
involve the appropriate conditions to capture an accurate distance measurement. (Id. at
4-6). Frontier states that the testing shows whether there is a clear light path and any
distance measurements that are included are unreliable. (Id. at 7).
Moreover, Frontier opposes reopening discovery because trial is scheduled to
begin on October 4, 2022, a mere few months away, and allowing further discovery would
derail the scheduling order at this late stage. (Id. at 8-9). Frontier additionally asserts that
the OTDR data is not responsive to any of the electronically stored information (ESI)
search terms that the parties have long agreed to, and the OTDR data is not amenable to
ESI term searches because it does not include distinctive text. (Id. at 9). Thus, Frontier
contends that it would be required to expend weeks of document review in order to
produce the OTDR data and then Citynet would need to review of the documents, and
Citynet could possibly request leave to conduct further discovery or obtain an additional
expert regarding the data. (Id.). Frontier claims that allowing this late and unnecessary
inquiry into the irrelevant OTDR data would most certainly require continuing the trial
date, which would prejudice all parties. (Id.).
Frontier additionally asserts that Citynet’s lack of diligence weighs against
reopening discovery. (Id. at 10). It notes that Citynet scheduled every single deposition in
this case after the close of written discovery, despite common legal knowledge that
information may be identified in depositions that would prompt further inquiry. (Id.).
Frontier claims that there are costs and benefits of taking depositions so late in discovery,
and Citynet must abide by its strategic choice not to depose McKenzie earlier, which is
when it learned of OTDR data. (Id. at 11).
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In reply to Frontier’s response, Citynet states that what should be a straightforward
issue in this case – the length of fiber Frontier constructed for the BTOP project – has
not been established, and the OTDR data would help Citynet verify numbers listed on the
Location Construction Requests and maps to make that determination. (ECF No. 371 at
1-2). Citynet contends that it does not matter if the distance measurements are accurate
because the standard for discovery is relevancy, not accuracy. (Id. at 2). Citynet maintains
that the OTDR documents are responsive to RFP 15, and Frontier is reading the request
too narrowly. (Id. at 5). Citynet essentially indicates that the OTDR data is the best, or
only, way to get the information that it needs regarding how many miles of fiber Frontier
constructed. (Id. at 6-7). Citynet claims that the additional discovery will not disrupt the
scheduling order, as the OTDR data likely encompasses less than one thousand
documents, which Citynet considers to be a de minimis burden for Frontier to produce.
(Id. at 8-9).
II.
Discussion
Citynet seeks an order compelling Frontier to produce OTDR data or, alternatively,
leave to reopen discovery to allow Citynet to request that information. Frontier claims
that OTDR data shows whether there are any obstructions or defects in fiber optic cables,
and Citynet asserts that the OTDR data also shows the length of the cables. Therefore,
Citynet claims that it needs OTDR data to verify how many miles of fiber optic cable
Frontier built pursuant to the BTOP grant to prove its assertion that Frontier built less
than it claimed in connection with the grant funding.
Under Rule 37 of the Federal Rules of Civil Procedure, a party can seek production
of documents requested in discovery. Fed. R. Civ. P. 37(a)(3)(B)(iv). Citynet argues that
the OTDR data is responsive to RFP 15, which requested “all documents, including but
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not limited to, email correspondence between [Frontier] and the [West Virginia Executive
Office] regarding the number of miles of fiber to be constructed for the BTOP grant
project.” (ECF No. 346-1 at 12). However, the fact that Citynet filed this motion is
perplexing, as the OTDR data is very plainly not responsive to RFP 15. Frontier is correct
that there is a stark difference between requests for prospective and retrospective
information. (ECF No. 367 at 4). Citynet requested documents concerning what Frontier
would build, not what it did build, and there does not appear to be any dispute that the
OTDR data only reflects what Frontier ultimately constructed. Citynet’s arguments
concerning the information Frontier produced and why it needs the OTDR data are
irrelevant to the fact that the Court cannot compel production of documents that were not
the subject of discovery requests. Therefore, on its face, Citynet’s motion to compel fails.
As to reopening discovery, a scheduling order can be modified under Rule 16 of the
Federal Rules of Civil Procedure only upon a showing of good cause and with the Judge’s
consent. Fed. R. Civ. P. 16(b)(4). In this case, the decision to modify the scheduling order
rests with Judge Copenhaver, who entered the order in the first instance. However,
because the issue has been raised by the parties in the pending discovery motion, the
undersigned provides a “good cause” analysis. As the parties noted, courts generally
consider the following six factors to determine whether good cause exists to reopen
discovery: “(1) is the trial imminent; (2) is the request opposed; (3) would the non-moving
party be prejudiced; (4) was the moving party diligent during the discovery period; (5)
was the request foreseeable based upon the time line set forth by the court; and (6) will
the new evidence be relevant to the stated inquiry.” H/S Wilson Outparcels, LLC v.
Kroger Ltd. P’ship I, No. 5:15-CV-591-RJ, 2018 WL 1528187, at *3 (E.D.N.C. Mar. 28,
2018). The court has wide latitude in controlling discovery, and the party moving to
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modify a scheduling order bears the burden of demonstrating good cause. Id. (citations
omitted). In this case, Citynet does not establish that the foregoing factors weigh in its
favor.
Citynet’s complaint was filed in 2014. Now, with trial only a few months away and
in the midst of summary judgment motions, Citynet asks to reopen discovery to solicit
documents which it cannot be sure will show the information that it requires. Citynet had
ample time to articulate written discovery requests, deposition questions, or 30(b)(6)
topics which solicited information regarding the length of BTOP fiber that Frontier
constructed. Indeed, Citynet obtained relevant information in discovery, but Citynet
asserts that it requires the OTDR data to verify and/or make sense of the information
provided. Such a request is not permissible at this late stage of litigation or under these
circumstances.
Considering the “good cause” factors, Frontier vehemently opposes reopening
discovery, and doing so would likely affect the remaining dates in the scheduling order,
which would prejudice the parties in this action. The Court notes that this case is on the
cusp of trial after a prolonged period of time and significant discovery. Citynet also fails
to establish its own diligence, the key requirement to reopen discovery. It presents this
issue as if Frontier withheld information that Citynet requested in discovery, and
immediately upon learning of it, Citynet began the meet and confer process to obtain it.
However, the OTDR data was not requested in RFP 15, and Citynet very clearly could have
articulated different discovery requests, taken earlier depositions, or any combination of
actions to obtain the requisite information, yet Citynet failed to do so. Finally, Citynet fails
to show that the OTDR data will be relevant to the stated inquiry. Citynet claims that it
does not matter whether the OTDR data accurately shows the length of BTOP fiber, but
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that is precisely the reason that it solicits the information – to verify the mileage to the
exact millimeter of fiber that Frontier constructed. It claims that the OTDR would be the
best evidence of the length of the fiber, but offers nothing to support that assertion.
Overall, Citynet does not establish good cause to modify the scheduling order to reopen
discovery. For all of the above reasons, Citynet’s motion, (ECF No. 346), is DENIED.
The Clerk is directed to provide a copy of this Memorandum Opinion and Order to
counsel of record.
ENTERED: June 30, 2022
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