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Skepnek v. Roper & Twardowsky, LLC

United States District Court, Tenth Circuit

October 3, 2013

WILLIAM J. SKEPNEK and STEVEN M. SMOOT, Plaintiffs,
v.
ROPER & TWARDOWSKY, LLC and ANGELA ROPER, Defendants.

ORDER

JAMES P. O'HARA, Magistrate Judge.

The plaintiffs, William J. Skepnek and Steven M. Smoot, bring this diversity action against the defendants, Roper & Twardowsky, LLC, and Angela Roper, alleging breach of contract, breach of fiduciary duty, and quantum meruit claims which stem from an alleged attorney-fee sharing agreement. This matter comes before the court upon plaintiffs' motion to compel discovery (doc. 114) and defendants' cross-motion for a protective order (doc. 124). Plaintiffs have responded to the show cause order[1] with respect to the timing of their motion to compel. The deadline to file a motion to compel is not tolled while the parties are engaged in efforts to resolve the discovery dispute without court intervention.[2] Rather, the common practice is for a party to request, prior to its expiration, an extension of its deadline to file a motion to compel with respect to any discovery dispute upon which the parties are still conferring.[3] But in the interest of efficiency and for good cause shown, the court will not deny plaintiffs' motion on the ground that it is untimely, and the court will rule on the merits of plaintiffs' motion.

The subject of plaintiffs' motion is defendants' response to their Third Set of Requests for Production, specifically Nos. 6, 7, 10 and 11.[4] Plaintiffs served their Third Set of Requests for Production on February 8, 2013. Defendants served their responses on March 11, 2013. Later, plaintiffs spent two days at defendants' offices in New Jersey physically inspecting documents.

During the on-site document review, plaintiffs asked defendants to produce an electronic file containing e-mails from defendants' server to capture all of the e-mails plaintiffs requested in their third set of production requests. Defendants agreed to perform an additional search. The results of the search were largely duplicative of previously produced discovery. Additionally, plaintiffs asserted that the documents did not include the vast majority of e-mails requested between defendants and third parties. Defendants asked that plaintiffs provide a list of search terms that could be used to search their server to capture the responsive e-mails. In response, plaintiffs provided a list of nineteen individuals/e-mails addresses that defendants could use to perform the search. Defendants replied that the terms were overbroad and a search with those terms would produce irrelevant and unresponsive documents. Nonetheless, defendants offered to perform the search if plaintiffs would pay for the time involved. Defendants estimated that it would cost $37, 800 to perform the search, a majority of which would be spent on attorney time reviewing the selected documents. Plaintiffs refused to pay for the search but offered to narrow the list of search terms to fifteen names. Defendants did not respond. Accordingly, plaintiffs filed the instant motion.

At issue is the adequacy of defendants' responses to Requests for Production Nos. 6, 7, 10 and 11. Specifically, plaintiffs seek two categories of documents: 1) all "internal" electronic communications among defendants or representatives of defendants that pertain to the topics in the specified requests for production; and 2) all electronic communications between Angela Roper, Kenneth Thyne, or anyone else associated with Roper & Twardowsky, LLC and the following fifteen people:

• Steven Snyder;
• Henry Bell;
• Shubert Jacques;
• Larry Lederman;
• Thomas O'Donnell;
• Phil Shapiro;
• Arthur Talbot;
• Lester Brickman;
• William ...

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