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Pipeline Productions, Inc. v. The Madison Companies, LLC

United States District Court, D. Kansas

June 20, 2018

PIPELINE PRODUCTIONS, INC., BACKWOOD ENTERPRISES, LLC, OK PRODUCTIONS, INC., and BRETT MOSIMAN, Plaintiffs,
v.
THE MADISON COMPANIES, LLC, and HORSEPOWER ENTERTAINMENT, LLC, Defendants.

          MEMORANDUM AND ORDER

          K. GARY SEBELIUS, U.S. MAGISTRATE JUDGE

         This matter comes before the court upon plaintiffs' Motion to Compel Discovery Responses (ECF No. 108). For the following reasons, this motion is granted in part and denied in part.

         I.

         This action arises from a failed music concert, the Thunder on the Mountain music festival. Plaintiffs allege that they entered into a joint venture with the defendants to own and produce the music festival. Plaintiffs contend that defendants reneged on the agreement, and the festival had to be cancelled. Plaintiffs assert claims of breach of contract, breach of fiduciary duty related to a joint venture, fraud and tortious interference with a prospective business advantage. Defendants have filed counterclaims against plaintiffs.

         II.

         Plaintiffs propounded their first set of discovery requests to defendants on October 30, 2017.[1] Defendants served responses on December 22, 2017.[2] Defendants objected to most of plaintiffs' requests. The parties then conferred to resolve their disputes.

         On January 5, 2018, the court conducted a scheduling conference.[3] At that time, the parties indicated that they were working on a protective order. The court imposed a deadline of January 16, 2018 for filing a jointly proposed protective order or a motion and brief concerning a proposed protective order if the parties were unable to agree about the need for and/or scope of the order.[4]On January 16, 2018, each side filed a motion for protective order.[5] On February 22, 2018, the court granted in part and denied in part each motion filed by the parties.[6] A protective order was entered later on that day.[7]

         On February 23, 2018, defendants supplemented their discovery responses.[8] Plaintiffs filed this motion on March 6, 2018.[9] On March 8, 2018, defendants produced 5, 656 documents consisting of more than 26, 000 pages. At the same time, defendants served a privilege log listing 820 privileged documents.

         Defendants generally responded to plaintiff's discovery with objections that plaintiffs' requests were not relevant, not proportional, overbroad and unduly burdensome. Defendants also argued that the information sought by plaintiffs on many of the matters was protected by attorney-client and/or work product privilege. Defendants have also asserted that certain requested information was confidential or private. Finally, defendants contend that the information sought by plaintiffs on “related entities” was vague and overbroad.

         In their motion, plaintiffs contend that (1) defendants' general objections should be ignored; (2) defendants waived any assertion of attorney-client or work-product privilege; (3) defendants' objections based upon relevance are without merit; and (4) defendants' objections that the discovery requests are overbroad are also without merit. Plaintiffs contend that defendants should be compelled to respond to Interrogatory Nos. 2-5, and 7-11, and Request for Production Nos. 4, 5, 8-10, 12, and 14-19.[10]

         III.

         A. Motions to Compel

         When resolving motions to compel the court is guided by several principles. First, the moving party must indicate what discovery it seeks to compel.[11] Second, “when ruling on a motion to compel, the court will consider only those objections that have been (1) timely asserted, and (2) relied upon in response to the motion to compel.”[12] “Objections initially raised but not relied upon in response to the motion to compel will be deemed abandoned.”[13]

         Third, as a general matter, the court “looks with disfavor on conclusory or boilerplate objections.”[14] Specifically,

[w]hen a party files a motion to compel and asks the Court to overrule certain objections, the objecting party must specifically show in its response to the motion to compel, despite the broad and liberal construction afforded by the federal discovery rules, how each request for production or interrogatory is objectionable. By failing to address these types of objections in response to a motion to compel, a party fails to meet its burden to support its objections.[15]

         Because of such a failure, “[t]he Court is then left without any basis to determine whether the objections are valid and applicable in light of the particular circumstances of the case.”[16] Thus, while the court will examine defendants' objections, the court will not consider its boilerplate objections to the extent defendants have failed to support them.[17]

         B. Relevancy and Proportionality

         Rule 26(b)(1) of the Federal Rules of Civil Procedure outlines the scope of discovery as follows:

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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         Considerations of both relevance and proportionality now govern the scope of discovery.[18]Relevance is still to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense.[19]Information still “need not be admissible in evidence to be discoverable.”[20] The 2015 amendment to Rule 26 deleted the “reasonably calculated to lead to the discovery of admissible evidence” phrase, however, because it was often misused to define the scope of discovery and had the potential to “swallow any other limitation.”[21]

         The consideration of proportionality is not new, as it has been part of the federal rules since 1983.[22] Moving the proportionality provisions to Rule 26 does not place on the party seeking discovery the burden of addressing all proportionality considerations. If a discovery dispute arises that requires court intervention, the parties' responsibilities remain the same as under the pre-amendment Rule.[23] In other words, when the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.[24] Conversely, when the relevancy of the discovery request is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.[25] Relevancy determinations are generally made on a case-by-case basis.[26]

         Whether any discovery request is proportional is to be determined by considering, to the extent applicable, the following six factors: (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.[27]

         C. Overly Broad and Unduly Burdensome

         As the party objecting to discovery, defendants have “the burden of showing facts justifying their objection by demonstrating that the time or expense involved in responding to requested discovery is unduly burdensome.”[28] This requires the opposing party to provide sufficient detail in terms of time, money and procedure in responding to the requested discovery.[29]The mere fact that responding to a request will require significant time and expenses, or even considerable hardship or injury to business, does not alone warrant a denial of a motion to compel discovery responses.[30]

         Defendants' failure to specify its potential burden is not dispositive of its objection. An objecting party's “failure to meet its evidentiary burden is not necessarily fatal to its claim that the requests are unduly burdensome” because “an exception ... applies when the discovery request is unduly burdensome on its face.”[31] Courts often ask whether the request's wording “requires the answering party to ‘engage in mental gymnastics to determine what information may or may not be remotely responsive.'”[32]

         In support of their opposition to plaintiffs' requested discovery, defendants produced an affidavit from David Lionette, Executive Vice-President with the The Madison Companies, LLC. In his affidavit, he states:

To date, I have spent countless hours searching for documents to be produced pursuant to defendants' initial disclosure obligations and in responding to plaintiffs' interrogatories. Given the extreme breadth of plaintiffs' discovery requests in their original form, I estimate that searching for, locating, reviewing, and producing all responsive, non objectionable documents called for plaintiffs would take thousands more man-hours.

         The court is not persuaded that Mr. Lionette's affidavit meets the burden required to show that any discovery request is unduly burdensome. Mr. Lionette fails to provide information concerning any particular discovery request. Moreover, he fails to provide any details for his estimate. He has not provided a breakdown of the basis for his estimate. He has an obligation to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure.

         With this background, the court turns some of the specific issue raised by the parties.

         IV.

         A. Related-Entities

         In their interrogatories and requests for production, plaintiffs ask defendants to provide information or documents pertaining not only to defendants, but to defendants' “related entities.” Defendants objected to this term as vague and overbroad. After meeting and conferring, plaintiffs clarified that “related entities” meant “any parent, subsidiary, or affiliated company, and any business corporation, partnership, LLC or other entity in which the parent, subsidiary, or affiliated company, including officers, directors, executives, or employees, hold a substantial interest, directly or indirectly.” Defendants maintained their objections even after the clarification.

         Discovery requests under Rules 33 and 34 may encompass information of nonparty entities if they are under the control of a named party.[33] Control means not only possession, but also the right, authority, or ability to obtain the information.[34] The party seeking production of the information has the burden of proving that the opposing party has control.[35] Discovery may be necessary and proper to determine the relationship between the parties and whether the requisite control may exist.[36]

         The court finds plaintiffs' request for information on defendants' related entities is vague and unduly burdensome.[37] Plaintiffs have not demonstrated that there any “related entities” that defendants control. The burden rests with plaintiffs to determine who the “related entities” are.[38]They, of course, can seek discovery to determine the relationship between the companies and whether the requisite control exists. But, without any identification of the “related entities, ” these requests are vague and unduly burdensome. The court will consider plaintiffs' requests without any reference to “related entities.”

         B. Waiver of Privilege of Attorney-Client and/or Work-Product

         The Federal Rules of Civil Procedure provide that [w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.[39]

         The failure to follow the Federal Rules of Civil Procedure may result in waiver of protection under the work product doctrine or the attorney-client privilege.[40]

         “Acknowledging the harshness of a waiver sanction, however, courts have reserved such a penalty for only those cases where the offending party committed unjustified delay in responding to discovery.”[41] “In the few cases where the court found waiver based upon the untimely submission of a privilege log, the privilege log had been prepared after the court was asked to rule on the issue and after entry of an order directing production of the documents.”[42]

         Here, the privilege log was not provided until after plaintiffs filed their motion to compel. The log, however, was produced prior to full briefing on the motion. The log was also produced shortly after the court entered a Protective Order. The defendants had advised plaintiffs that they would produce documents responsive to the requests for production on March 8, 2018, at the same time documents identified in defendants' initial Rule 26 disclosures were produced. That date was triggered by the timing of the court's issuance of the Protective Order.

         Under these circumstances, the court does not find that defendants' actions were unreasonable. The court does not find that the delay was unjustifiable or in bad faith. Moreover, plaintiffs have not suffered any prejudice by the defendants' slight delay in producing the privilege log. In this regard, the court notes that plaintiffs did not even mention this argument in their reply brief. The court shall not impose waiver here.

         The court now turns to the specific interrogatories and requests for production.

         V.

         INTERROGATORY NO. 2. Specify in detail any experience Defendants and/or related entities had owning, promoting, selling marketing, and/or starting music festivals and/or concerts prior to January 1, 2014.

         RESPONSE: Responding Party responds that through other ancillary businesses it has had prior management and operational experience with a winery investment that put on music events as well as sponsored and/or marketed itself via certain music events.

         As explained previously, the court finds no merit to the general objections that defendants have asserted here. The court also finds that defendants have failed to specifically respond to this interrogatory. The answer provided by defendants lacks any detail. Thus, plaintiffs' motion to compel a complete response to this interrogatory is granted. Defendants shall respond with an answer that provides the necessary details-the who, when and where of their experience with a music festival or concert prior to January 1, 2014.

         INTERROGATORY NO. 3. Identify all persons Defendants and/or any related entities have employed (as employees, contractors, and/or vendors) that previously worked for Plaintiffs and/or any related entities, including which defendant and/or related entity employed them, the dates they were ...


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