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InfusAID LLC v. InfuSystem Inc.

United States District Court, D. Kansas

February 2, 2018

INFUSAID LLC, Plaintiff,
v.
INFUSYSTEM INC., Defendant.

          MEMORANDUM AND ORDER

          K. Gary Sebelius U.S. Magistrate Judge.

         This matter comes before the court upon Plaintiff InfusAID LLC's Motion to Compel the Production of Documents by Defendant InfuSystem Inc. (ECF No. 29). Plaintiff seeks a court order compelling defendant to produce documents responsive to its First and Second Requests for Production. For the reasons stated below, the motion is denied as moot as to First Request Nos. 1-5 and Second Request Nos. 1-2; denied without prejudice to refiling as to First Request Nos. 9 and 11-13; and denied as to all other requests.

         I. Background

         The claims in this case arise from the alleged breach of an Asset Purchase Agreement (APA) whereby defendant acquired plaintiff's business, namely the service of providing ambulatory infusion pumps and related billing services. The parties entered into the APA on March 16, 2016, with closing on the APA occurring on July 1, 2017. Plaintiff asserts defendant breached the APA by (1) failing to pay Plaintiff for receivables related to patient treatments through the closing date as required by the APA; (2) failing to fully compensate Plaintiff for a number of Plaintiff's infusion pumps in Defendant's possession; (3) failing to reasonably cooperate in the transition of accounts to Defendant; and (4) failing to pay for certain accounts conveyed to Defendant. Plaintiff also asserts a claim for unjust enrichment.

         Plaintiff served its first and second requests for the production of documents in October 2017. The parties agreed that defendant would respond to both sets of discovery requests by November 17, 2017. As plaintiff explains, defendant produced no documents, objected to the majority of the requests, and stated it would need additional time to produce some responsive material to which it had no objection to producing.

         Defendant's response brief, however, provides additional context. According to defendant, information responsive to the requests for production is stored electronically. The parties had discussed production of electronically stored information (ESI) during their planning conference and determined that defendant would first produce summary reports of ESI rather than underlying granular data fields. However, defendant would produce the underlying granular data on a case-by-case basis if plaintiff required additional information. Plaintiff disputes this account, stating that these discussions never took place and that no agreement existed. Defendant states it had been providing summary reports upon request to plaintiff for months and that there was never a dispute regarding the summaries until settlement negotiations stalled. Plaintiff contends that defendant had produced only two summary reports but updated one with revised information. Defendant contends that it can produce the ESI to which it has no objection to producing but that because of the large volume of information, the task cannot be completed until January 12, 2018. As for the remainder of the document production requests, defendant asserts that they are overly broad and encompass irrelevant information.

         II. Discussion

         Before considering the merits of a motion to compel, the court must determine whether the moving party has satisfied the procedural conference requirement. Both the Federal Rules of Civil Procedure and this district's local rules require a moving party to confer in good faith with the opposing party about a discovery dispute prior to filing a motion to compel.[1] A party does not comply with the requirement “simply by requesting or demanding compliance with the requests for discovery.”[2] Instead, the parties must “make genuine efforts to resolve the dispute by determining precisely what the requesting party is actually seeking; what responsive documents or information the discovering party is reasonably capable of producing; and what specific, genuine objections or other issues, if any, cannot be resolved without judicial intervention.”[3] That did not happen here.

         Reviewing the correspondence between counsel regarding this discovery dispute, plaintiff did little more than demand full compliance with the discovery requests, initially giving defendant a week to fully respond to the requests before plaintiff would file a motion to compel.[4]In a subsequent letter, plaintiff's counsel addressed responses to the requests for production that state that that defendant would produce responsive documents at a time and place mutually agreeable to the parties and their attorneys. The letter states, “That time has arrived and is either today [November 24, 2017] or Monday, November 27, 2017.”[5] The letter goes on to inform defense counsel that if defendant does not produce or make the information available by that date, plaintiff would move to compel.

         While defendant's correspondence sets forth the reasons for requiring additional time to gather ESI and states that it could produce responsive information by January 12, 2018, plaintiff decided to instead move to compel responsive information that defendant has already agreed to produce. Plaintiff does not challenge the reasons for the additional time required for production. Plaintiff just believes it should have happened sooner. Notably, plaintiff's motion was not fully briefed until December 27, 2017, and the court was not able to render a decision on the matter until now. This type of motion practice is not a model of efficiency. Instead of filing a motion regarding issues to which there is a genuine dispute-and there are some-plaintiff has moved to compel responses to every single document production request on two separate set of requests. The court has expended time and resources evaluating requests for production to which defendant simply required additional time to respond for what appear to be valid reasons. At a minimum, plaintiff has not complied with the spirit of the rules requiring a moving party to meaningfully confer before filing a motion to compel. In its discretion, the court will evaluate the merits of the motion to avoid further delay.

         Fed. R. Civ. P. 26(b)(1) defines the scope of discovery as nonprivileged matters that are relevant to any party's claim or defense and proportional to the needs to of the case. When a party fails to make disclosure or produce discovery, the opposing party may file a motion to compel. When a party files a motion to compel that asks the court to overrule certain objections, the objecting party must specifically show in its response to the motion how each discovery request is objectionable.[6] However, if the discovery requests appear facially objectionable, the movant bears the burden to demonstrate how the request is not objectionable.[7]

         A. First Request for Production Nos. 1-5 and Second Request for Production Nos. 1-2

         Defendant states that it is working diligently to produce documents responsive to these requests by January 12, 2018. The reasons for the additional time required appear reasonable. In its reply brief, plaintiff asks the court to order defendant to produce documents on a rolling basis as set forth in the scheduling order. The court expects all parties to comply with the cooperation agreements set out in the scheduling order. If responsive documents are available to be produced earlier, the court expects defendant to produce them at that time. However, there is no information before the court demonstrating that defendant has failed to comply with this requirement.

         B. First Request for Production Nos. 6-8

         These document production requests seek documents regarding defendant's evaluation of the pumps, including internal communication and communication between plaintiff and defendant regarding the pumps.[8] Defendant asserts a relevance objection to each of these requests.

         Fed. R. Civ. P. 26(b) defines the scope of discovery. Under the rule, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . .”[9] Although considerations of relevance and proportionality govern the scope of discovery, “[r]elevance is still to be ‘construed broadly to encompass any matter that bears on, or that reasonably could bear on ‘any party's claim or defense.'”[10] Proportionality is determined by “considering, ‘(1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties' relative access to relevant information, (4) the parties' resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.”[11] However, Rule 26(b)'s proportionality requirement does not ...


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