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Landry v. Swire Oilfield Services, L.L.C.

United States District Court, D. New Mexico

January 3, 2018

EDDIE LANDRY; MARIO CONSTANCIO, JR. and MARK TAMAYO, Plaintiffs,
v.
SWIRE OILFIELD SERVICES, L.L.C. and SWIRE WATER SOLUTIONS, INC., Defendants.

          Daniel M. Faber Law Office of Daniel Faber Albuquerque, New Mexico and Patrick Leyendecker Ahmad Zavitsanos Anaipakos Alavi & Mensing, P.C. Houston, Texas and Galvin B. Kennedy Udyogi Hangawatte Kennedy Hodges L.L.P. Houston, Texas Attorneys for the Plaintiffs

          Charlotte A. Lamont Littler Mendelson, P.C. Albuquerque, New Mexico and Yvette V. Gatling Littler Mendelson, P.C. Tysons Corner, Virginia Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Plaintiffs' Motion to Compel Electronic Payroll Records, filed January 26, 2017 (Doc. 36)(“First Motion to Compel”);[1] (ii) the Defendants' Notice of Non-Appearance and Motion for Protective Order, filed April 6, 2017 (Doc. 52)(“Motion for Protective Order”); (iii) the Plaintiffs' Motion to Compel Swire to Comply with 30(b)(6) Notice, filed April 21, 2017 (Doc. 57)(“Second Motion to Compel”); (iv) the Defendants' Motion for Enlargement of Time to Produce Documents Received from ADP Payroll, Inc. and Corban OneSource LLC, filed June 14, 2017 (Doc. 73)(“Enlargement Motion”); and (v) the Plaintiffs' Motion to Compel Third Party (ADP) Deposition, filed June 15, 2017 (Doc. 76)(“Third Motion to Compel”). The Court held hearings on March 23, 2017, and May 12, 2017. The primary issues are: (i) whether rule 34 of the Federal Rules of Civil Procedure requires the Defendants to produce records in electronically readable format -- the format in which the Plaintiffs request the documents be produced; (ii) whether the Court should compel a third-party deposition of ADP Payroll Services, Inc.[2]; (iii) whether rule 26(c) protects the Defendants from testifying at a deposition about topics related to the Defendants' interactions with payroll companies, the Defendants' efforts to gather discovery documents, the Defendants' methodology in compiling discovery documents, and matters in which the Defendants have already produced responsive documents; and (iv) whether the Court should extend, by one week, the deadline for the Defendants to produce documents received from ADP Payroll and Corban OneSource, LLC in accordance with the Court's Order, filed May 25, 2017 (Doc. 69)(“Subpoena Order”). The Court concludes that: (i) rule 34 requires the Defendants to produce the electronic documents in the electronic format that the Plaintiffs request; (ii) it will not compel ADP Payroll's deposition, because a third-party deposition is unnecessary here as the Defendants' production of electronic documents in electronic format affords the relief that the Plaintiffs' seek; (iii) rule 26(c) does not protect the Defendants from testifying at a deposition about their efforts to produce responsive documents, because the testimony sought is relevant; and (iv) the Court grants the Defendants' request for a one-week deadline extension, because there is good cause for such a slight extension. The Court, accordingly, grants the First Motion to Compel, grants in part and denies in part the Motion for Protective Order, grants in part and denies in part the Second Motion to Compel, grants the Enlargement Motion, and denies the Third Motion to Compel.

         FACTUAL BACKGROUND

         The Court draws its facts from the Plaintiffs' Original Complaint, Collective Action, Class Action, and Jury Demand filed June 21, 2016 (Doc. 1)(“Complaint”). It assumes as true the Complaint's factual allegations only for the purposes of this Memorandum Opinion and Order. Swire Oilfield Services, LLC is an oilfield services company, which provides oilfield fluid management services to drilling companies across the globe, including drilling companies in New Mexico. See Complaint ¶ 29, at 6. The Plaintiffs are Swire Oilfield's operators who rig oilfield equipment, monitor drilling fluids, and generally assist in the drilling process. See Complaint ¶ 30, at 6. These operators commonly work more than twelve hours a day, and often more than ninety hours a week. See Complaint ¶ 31, at 6. From 2013 until 2016, Swire Oilfield paid those operators under two pay systems, a salaried system and a Fluctuating Work Week (“FWW”) system. See Complaint ¶ 32, at 6.[3] The Plaintiffs contend that, under either system, the Defendants violated the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (“FLSA”), because the Defendants failed to pay the requisite overtime, see Complaint ¶¶ 66-74, at 12-13, and the requisite minimum wage, see Complaint ¶¶ 75-82, at 13-14. Plaintiff Mark Tamayo also contends that, on behalf of himself and others similarly situated, the FWW system violates the New Mexico Minimum Wage Act, N.M. Stat. Ann. §§ 50-4-1-34 (“NMMWA”). See Complaint ¶¶ 83-88, at 14-15.

         PROCEDURAL BACKGROUND

         On June 21, 2016, the Plaintiffs filed this suit as a proposed collective action under the FLSA, 29 U.S.C. § 216(b), and as a proposed class action under rule 23 of the Federal Rules of Civil Procedure. See Complaint ¶¶ 47-65, at 8-12. With respect to the FLSA, the Plaintiffs bring this suit on two proposed classes' behalf: (i) the Salary Class, i.e., “[a]ll of Defendants' current and former operators throughout the United States who were paid on a salary basis without overtime in the last three years”; and (ii) the FWW Class, i.e., “[a]ll of Defendants' current and former operators throughout the United States who were paid under the fluctuating work week method during the last three years.” Complaint ¶ 54, at 9. The Plaintiffs allege that the potential Salary Class members are similarly situated to Landry “in that they share the same duties and were subject to Swire Oilfields's policies of misclassifying non-exempt employees as salaried exempt, ” and that the FWW Class members are similarly situated to Constancio and Tamayo “in that they share the same duties and were subject to Swire's polices of . . . paying overtime under a non-compliant FWW system.” Complaint ¶ 49, at 9. The Plaintiffs assert two causes of action against Swire Oilfield on the proposed Salary Class' and the FWW Class' behalf: (i) failure to pay overtime, in violation of the FLSA, 29 U.S.C. § 207 (Count I), see Complaint ¶¶ 66-74, at 12-13; and (ii) failure to pay the minimum wage, in violation of the FLSA, 29 U.S.C. § 206 (Count II), see Complaint ¶¶ 75-82, at 13-14.

         Regarding the Complaint's rule 23 class-action allegations, Tamayo asserts a claim under the NMMWA on the proposed New Mexico Class' behalf, i.e., “[a]ll current and former operators of Defendants who worked in New Mexico during the last three years and who were paid under the fluctuating workweek method.” Complaint ¶ 56, at 10. The Complaint alleges that the “FWW method is illegal under New Mexico law, ” because the NMMWA “requires payment of one and one-half times the employee's regular rate for each hour worked per week over 40 hours.” Complaint ¶ 85, at 14 (citing N.M. Stat. Ann. § 50-4-22(D)). The Complaint thus asserts a cause of action against Swire Oilfield for failure to pay overtime, in violation of NMMWA, N.M. Stat. Ann. § 50-4-26(C)-(E) (Count III).

         On May 2, 2017, the Court conditionally certified the Salary Class and the FWW Class as collective actions under 29 U.S.C. § 216(b). See Memorandum Opinion and Order at 1, 252 F.Supp.3d 1079, 1085 (D.N.M. 2017)(Browning, J.), filed May 2, 2017 (Doc. 59)(“Certification MOO”). It reasoned that the Salary Class and FWW Class members are similarly situated with respect to Swire Oilfield's purported FLSA violations, because the proposed classes are comprised of employees with similar positions and duties. See Certification MOO at 60, 252 F.Supp.3d at 1118. The Court concluded that, although Swire Oilfield hired operators with various job titles, “all operators had essentially the same duties: rigging up, monitoring, and rigging down water transfer and chemical blending equipment at oil sites, ” Certification MOO at 60, 252 F.Supp.3d at 1118, and all worked “long hours on extended rotations, ” resulting in substantial overtime hours, Certification MOO at 61, 252 F.Supp.3d at 1119. The Court also determined that the proposed class members for their respective classes are similarly situated with respect to Swire Oilfield targeting them with a single decision, policy, or plan, because Swire Oilfield “made a company-wide decision” to classify “nearly all” Salary Class operators as exempt from overtime pay and also made a “company-wide decision” to transfer its salaried operators to the FWW method. Certification MOO at 64-65, 252 F.Supp.3d at 1121.

         1. The First Motion to Compel.

         On January 26, 2017, the Plaintiffs filed the First Motion to Compel. See First Motion to Compel at 1. The Plaintiffs contend that the Defendants flouted rule 34 by producing electronic payroll records sought in PDF format and not in computer readable format as requested. See First Motion to Compel at 1, 5-6. The Plaintiffs contend further that the Defendants exercise the requisite control over the payroll records for rule 34 to apply, even though Corban OneSource or, possibly, ADP, has actual possession. See First Motion to Compel at 6-7. The Plaintiffs explain that, although the Defendants may lack actual possession of the electronic documents, the Defendants can easily request Corban OneSource to produce those documents in the requested electronic format. See First Motion to Compel at 6-7.

         The Plaintiffs also contend that the 12, 249 pages of PDF documents that the Defendants produced were not produced as the documents are kept in the usual course of business. See First Motion to Compel at 7. See also Fed.R.Civ.P. 34(b)(2)(E)(i) (requiring parties to produce documents “as they are kept in the usual course of business”). The Plaintiffs support that contention by arguing that the documents came in three separate groups ordered alphabetically, and argue that a company would not group documents that way without labeling or indexing. See First Motion to Compel 7-8. The Plaintiffs conclude that, because the Defendants did not produce the documents as they are kept in the usual course of business, the Defendants must organize and label them under rule 34(b)(2)(E)(ii). See First Motion to Compel at 8. They add that, if the documents are not labeled, the Plaintiffs' discovery request is impermissibly undermined, because the Defendants will know which payroll documents belong to which class, but the Plaintiffs will not. See First Motion to Compel at 8 (citing Hickman v. Taylor, 329 U.S. 495, 507 (1947)).

         2. Response to First Motion to Compel.

         On February 9, 2017, the Defendants responded to the First Motion to Compel. See Response Opposing Plaintiffs' Motion to Compel Electronic Records at 1, filed February 9, 2017 (Doc. 42)(“First Motion to Compel Response”). The Defendants argued that they do not have the documents in electronic format and explained that reality to the Plaintiffs several times. See First Motion to Compel Response at 2-3. The Defendants add that they stopped doing business with Corban OneSource in 2016, and that the Defendants never had a customer relationship with ADP Payroll nor direct access to ADP Payroll's payroll system. See First Motion to Compel Response at 3. They continue that it is “impossible” for the Defendants to produce the records in an electronically searchable format, and that they “can no longer demand the information from Corban OneSource.” Motion to Compel Response at 3. The Defendants contend that Corban OneSource allowed the Defendants a “one-time download records into PDF files” before their relationship ended. First Motion to Compel Response at 3. The Defendants conclude that they discharged their rule 34 duty by producing the relevant records, and that the Court should not require the Defendants to comb through the documents to match which files belong to which Plaintiff sub-class. See Motion to Compel Response at 4.

         3. Reply to First Motion to Compel.

         On February 10, 2017, the Plaintiffs replied to the First Motion to Compel Response. See Plaintiffs' Reply to Swire's Response (Dkt 42) to Motion to Compel Electronic Payroll Records (Dkt 36), filed February 10, 2017 (Doc. 43)(“First Motion to Compel Reply”). The Plaintiffs argue that the Court should not credit the Defendants' assertion that “it can no longer demand the information” from its third-party payroll vendor, because the Defendants do not support that contention with a sworn Declaration. First Motion to Compel Reply at 1. The Plaintiffs also argue that the Defendants' assertion that they produced the documents as they are maintained in the regular course of business must be false, because the documents are lumped in three separate alphabetical groupings. See First Motion to Compel Reply at 1-2. The Plaintiffs maintain that they made four requests for production seeking documents specific to each of the three proposed classes. See First Motion to Compel Reply at 2. They add that the Defendants have responded to each request, but still violate rule 34 by failing to identify which of the payroll records correspond to which request. See First Motion to Compel Reply at 2. The Plaintiffs conclude that, if the Defendants do not identify the documents, the Defendants should be judicially estopped from contesting the numerosity element for class or collective action certification, because “there are hundreds, if not thousands, of workers identified in the records produced.” First Motion to Compel Reply at 2.

         4. The March 23, 2017 Hearing.

         The Court held a hearing on March 23, 2017. See Draft Transcript of Motion Hearing (taken March 23, 2017)(“March Tr.”).[4] First, the Plaintiffs reiterated their argument that the Defendants have control over the payroll documents requested, because they can ask their former payroll provider to send those records. See March Tr. at 24:15-23 (Leyendecker). They add that the Defendants do not attest that they cannot ask their former payroll provider to generate another copy of the requested records. See March Tr. at 25:3-8 (Leyendecker). Second, the Plaintiffs argued that they seek information on three different classes, but when the Defendants produced the responsive records, they refused to identify which documents belong to which class. See March Tr. at 26:14-23 (Leyendecker). The Plaintiffs' conclude that the Defendants are “avoiding their obligation to give us full disclosure.” March Tr. at 27:1-2 (Leyendecker).

         In response, the Defendants maintained that their payroll provider represented that they could not produce them in electronic form. See March Tr. at 27:24-28:1 (Gatling). They also say that rule 34 requires only that they produce documents in “a reasonably usable form.” March Tr. at 28:10-11 (Gatling). After colloquy with the Court, the Defendants revealed that their third-party payroll provider, Corban OneSource, used ADP Payroll to keep track of payroll. See March Tr. at 29:12-19 (Court, Gatling). The Court asked why the Defendants could not obtain the documents from ADP Payroll in electronic format. See March Tr. at 30: 1-3 (Court). The Defendants represented that they do not know whether ADP Payroll had the documents, but “their understanding is that [ADP Payroll] would have deleted those records.” March Tr. at 30:4-9 (Gatling). When asked whether the Defendants had called Corban OneSource about these records since the lawsuit had been filed, the Defendants responded that they had not. See March Tr. at 31:22-32:1 (Court, Gatling). The Defendants maintained, however, that they have discharged their rule 34 duty, because they have produced the documents in a reasonably usable form. See March Tr. at 32:20-22 (Gatling). Regarding identifying which documents correspond to which plaintiff classes, the Defendants agreed to identify which Bates number[5] correspond to which document request. See March Tr. at 33:11-15 (Gatling).

         The Court concluded that it would require the Defendants to do two things. See March Tr. at 35:20-21 (Court). First, it told the Defendants to contact Corban OneSource and inquire whether Corban OneSource would contact ADP Payroll for the payroll records in the requested format. See March Tr. at 35:21-24 (Court). Second, it told the Defendants to reach out to ADP Payroll independently and ask whether the documents could be provided in the format requested. See March Tr. at 35:24-36:1 (Court). The Court ordered that, once completed, the Defendants need to send a letter to the Court and to the Plaintiffs explaining the requests' results. See March Tr. at 36:1-2 (Court). The Court explained that, if the companies ended on good terms, the payroll companies should be able to provide these documents in electronic format. See March Tr. at 36:5-10 (Court). The Court concluded that it would wait for this additional information before ruling on the First Motion to Compel. See March Tr. at 36:14-16 (Court).

         5. Defendants' Status Report.

         On April 3, 2017, the Defendants filed a status report with the Court. See Status Report at 1, filed April 3, 2017 (Doc. 51)(“Status Report”). The Defendants report that they contacted both Corban OneSource and ADP Payroll, and ADP Payroll relays that it has Swire Oilfield's pay data in a format that can be imported into Microsoft Excel. See Status Report at 1. They also report that the data that can be imported is “(a) gross and net pay per pay period; (b) total regular hours and pay; (c) total overtime hours and pay; and (d) total other earnings per pay period.” Status Report at 1. The Defendants conclude that they have requested that data for a period between June, 2013, and March, 2016, and would update the Court and Plaintiffs accordingly. See Status Report at 1-2.

         6. The Motion for Protective Order.

         On April 6, 2017, the Defendants filed the Motion for Protective Order. See Motion for Protective Order at 1. The Defendants request that the Court enter a protective order under rule 26(c) protecting the Defendants from testifying in a deposition to the subjects listed at 1, 2, 3, and 7 in the Plaintiffs' First Amended Fed.R.Civ.P. 30(b)(6) Notice of Deposition of Defendants, filed April 6, 2017 (Doc. 52-1)(“Deposition Notice”).[6] The Defendants argue broadly that those issues are not proper rule 30(b)(6) topics for deposition. See Motion for Protective Order at 2. First, they argue that topic 1, which covers the Defendants' agreements and interactions with any payroll company from June 21, 2013, forward, is irrelevant and not proportional to the case's needs. See Motion for Protective Order at 2. The Defendants contend that there is no allegation that the Defendants have not produced payroll information and any information on payroll agreements is irrelevant to how the Defendants paid its employees. See Motion for Protective Order at 2. They also contend that the subject is overbroad and burdensome, because it requests “all interactions with any payroll company, ” which is both too sweeping and too vague to be relevant to the Plaintiffs' claims. See Motion for Protective Order at 2-3 (citing Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1057 n.5 (7th Cir. 2000)).

         Second, the Defendants argue that topic 2, which seeks the Defendants to testify about their efforts to locate and produce documents responsive to the Plaintiffs document production request, and topic 8, [7] which seeks information on the software program that Swire Oilfield uses to process payroll data, are improper deposition topics, because a deposition on those topics does not relate to any claim or defense, and a motion to compel is the proper way to obtain the information requested -- a motion which the Court has already taken under advisement. See Motion for Protective Order at 3-4. The Defendants argue, similarly, that topic 3, which requests the basis for segregating Swire Oilfield's production into three alphabetical groups, is improper for deposition testimony, and the Defendants agreed at the March, 2017, hearing to identify which documents correspond to which request. See Motion for Protective Order at 4; March Tr. at 33:11-15 (Gatling). Next, the Defendants contend that topic 7, which covers all facts that the Defendants argue demonstrate that a class action is inferior to other resolution methods, is improper for a deposition, because that topic “is an issue for the fact-finder to conclude.” Motion for Protective Order at 4. Finally, the Defendants argue that topic 9, which seeks Swire Oilfield's payroll processing and time tracking of all of its workers since June 21, 2013, is irrelevant to the Plaintiffs' FLSA claims and that the Court's resolution of the First Motion to Compel should resolve this topic, too. See Motion for Protective Order at 4-5.

         7. The Response to the Motion for Protective Order and the Second Motion to Compel.[8]

         On April 21, 2017, the Plaintiffs responded to the Motion for Protective Order, see Plaintiffs' Response to Motion for Protection at 1, filed April 21, 2017 (Doc. 56)(“Protective Order Response”), and filed their Second Motion to Compel, see Second Motion to Compel at 1.[9] The Plaintiffs argue that Swire Oilfield has “ignored repeated requests for dates on which a 30(b)(6) witness is available, ” Second Motion to Compel at 2, and, to contextualize this argument, offer a timeline of relevant events, see Second Motion to Compel at 2-4. Turning to their argument, the Plaintiffs assert that Swire Oilfield has yet to “correlate the bates ranges of Defendants' production with the four document requests at issue.” Second Motion to Compel at 4.

         The Plaintiffs also contend that all of their deposition topics are proper, because discovery's scope, under rule 26, is broad. See Protective Order Response at 5 (citing Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995)). They also argue that the Defendants' arguments are “frivolous, ” because the Defendants have been aware of the topics since February 10, 2017, but declined to object to them until after the March hearing. Protective Order Response at 6. The Plaintiffs conclude that the “Defendants' strategy is obvious. Delay. Delay. And then delay some more.” Protective Order Response at 6.

         8. Second Motion to Compel Response.

         On May 2, 2017, the Defendants responded to the Second Motion to Compel. See Response to Plaintiffs' Motion to Compel Swire to Comply with 30(b)(6) Notice at 1, filed May 2, 2017 (Doc. 61)(“Second Motion to Compel Response”). The Defendants represent that, since the Second Motion to Compel, they had scheduled Swire Oilfield's deposition, so the Plaintiffs' complaints with respect to scheduling are rendered moot. See Second Motion to Compel Response at 1. The Defendants also represent that, on April 18, 2017, they served an updated document response to the Plaintiffs, correlating the documents served with Bates numbers so that the plaintiffs would know which documents corresponded with which request. See Second Motion to Compel Response at 2. The Defendants argue that the Plaintiffs do not address their Motion for Protective Order's merits, but instead “dismiss them as frivolous.” Second Motion to Compel Response at 2.

         9. Motion to Quash Subpoena.

         On May 2, 2017, the Defendants also moved to quash subpoenas that the Plaintiffs issued on ADP Payroll and Corban OneSource. See Defendants' Motion to Quash Subpoenas at 1, filed May 2, 2017 (Doc. 60)(“Motion to Quash”). The Defendants note that, in the subpoenas, the Plaintiffs seek electronic payroll records from ADP Payroll and Corban OneSource directly, in addition to “payroll and other records that are not relevant to Plaintiffs' claims or Swire's defenses.” Motion to Quash at 2. The Defendants argue that the subpoena is cumulative, duplicative, irrelevant, not proportional, and that the Plaintiffs' request for all of Swire Oilfield's employees' payroll records is outside the litigation's scope. See Motion to Quash at 2.

         10. Motion to Quash Response.

         On May 11, 2017, the Plaintiffs responded to the Defendants' Motion to Quash. See Plaintiffs' Response to Swire's Motion to Quash Subpoenas (DKT 60) at 1, filed May 11, 2017 (Doc. 64)(“Motion to Quash Response”). The Plaintiffs contend that the Defendants are “actively trying to delay” production. Motion to Quash Response at 1-2. To support that assertion, they recount that they requested documents from the Defendants in September, 2016, but the Defendants, as of May 11, 2017, still have not produced the documents in the requested format, “[d]espite the [documents'] ready availability.” Motion to Quash Response at 2. The Plaintiffs contend that the Defendants' objections to the Plaintiffs' subpoenas are “patently frivolous, ” because discovery's scope is broad. Motion to Quash Response at 3-4 (citing Gomez v. Martin Marietta Corp., 50 F.3d at 1520). They conclude by requesting the Court to overrule the Motion to Quash. See Motion to Quash Response at 5.

         11. The May Hearing.

         On May 12, 2017, the Court held a hearing. See Draft Transcript of Motion Hearing (taken May 12, 2017)(“May Tr.”). The Defendants began by arguing for their Motion for Protective Order. See May Tr. at 2:19-25 (Court, Gatling). The Defendants maintain that a deposition is not the appropriate way to obtain information on the payroll records; rather a motion to compel is the proper vehicle, and the Court has already considered that motion. See May Tr. at 3:21-4:4 (Gatling). The Plaintiffs responded, focusing on the depositions' topic 1, that they are “just trying to figure out . . . what kind of records of the payroll data exists, ” and insist that this “is just a general topic” to figure out “what information is out there, who has it, and what's available for us to get.” May Tr. at 5:1-13 (Leyendecker). The Defendant countered that, if that is the information which the Plaintiffs actually want, the topic should be “the payroll records, ” which the Defendants have already produced, and not “Swire's agreements and interactions with” payroll companies. May Tr. at 5:16-21 (Gatling). The Plaintiffs explained, however, that the reason that they seek the payroll agreements is that they believe those agreements will reveal “the types of data that the payroll company” keeps on the Defendants' behalf. May Tr. at 6:6-10 (Leyendecker). The Court orally denied the Motion for Protective Order “as to this topic, ” explaining that sometimes “you have to do a little discovery to get discovery” and that this is one of those situations where it is appropriate for deposition testimony. May Tr. at 7:2-8:4 (Court).

         The Defendants subsequently turned to whether deposition questioning on the Defendants' efforts to produce documents responsive to the Plaintiffs' request is proper. See May Tr. at 8:6-24 (Gatling). The Defendants explained that they had produced responsive documents in the requested electronic format, so there is no need to have deposition testimony on that subject. See May Tr. at 8:6-24 (Gatling).[10] The Plaintiffs responded that questions about how documents are produced are commonly covered in depositions and that it is a particularly relevant line of questioning here, because the Defendants “took the position in writing that it could not obtain any electronic records.” May Tr. at 9:2-14 (Leyendecker). The Defendants refuted that they had taken that position in writing; rather they had taken the position that the Defendants “did not have [the documents] in electronic format.” May Tr. at 10:1-4 (Gatling). The Court then ruled orally that it will allow this topic for deposition testimony, because it is fair for the Plaintiffs to explore whether they had obtained all of the payroll documents. See May Tr. at 11:4-11 (Court). It explained that the case is “to a great degree” going to be about “who was paid and how much, ” so documentary payroll evidence is highly relevant. May Tr. at 11:13-15 (Court).

         The Defendants turned to topic 7 and argued it is not relevant deposition testimony, because the topic's scope -- all facts demonstrating that a class action is superior than other methods to resolve the Plaintiffs' claims -- is the ultimate issue for the fact finder to conclude. See May Tr. at 11:23-12:9 (Gatling). The Plaintiffs responded that the topic covers the facts that bear on superiority, which, under rule 23, are relevant and not legal conclusions. See May Tr. at 12:12-24 (Leyendecker). The Court mused that the topic struck it as a contention interrogatory and not one easily done at a deposition, and asked whether the Plaintiffs would be willing to change the topic to a contention interrogatory. See May Tr. at 13:17-25 (Court); id. at 14:8-15 (Court). The Plaintiffs agreed to withdraw the topic in favor of a contention interrogatory, but argued that they are entitled to cross-examine a witness about the answers at a later date. See May Tr. at 14:16-23 (Leyendecker). The Defendants also agreed to a contention interrogatory. See May Tr. at 17:25-18:1 (Gatling). The Court subsequently granted in part the Motion for Protective Order as to topic 7 without prejudice, so that the Plaintiffs may renew their request to depose someone on the contention interrogatory's answer. See May Tr. at 18:12-19 (Court).

         The Defendants then argued that topic 9 is irrelevant, because how Swire Oilfield processed its payroll “is not probative of whether or not [the Defendants] paid people on a salary” or on a FWW basis. See May Tr. at 19:19-20:4 (Gatling). The Plaintiffs responded that, once again, they are just trying to uncover what actions the Defendants have taken. See May Tr. at 20:6-10 (Leyendecker). The Defendants countered that the Plaintiffs already know how they process the payroll records -- they use Corbin OneSource and ADP. See May Tr. at 21:2-5 (Gatling). The Court orally denied the motion, because the questioning is “traditional 30(b)(6), you've got the documents and you want to start asking questions about th[ose documents].” May Tr. at 21:11-14 (Court).

         The Plaintiffs subsequently raised a new issue that, in their rule 30(b)(6) notice, they request the Defendants to produce six categories of documents, and asked whether the Defendants intend to produce those documents. See May Tr. at 21:24-22:9 (Leyendecker).[11]The Defendants objected, because they had previously objected to producing those documents, the Plaintiffs have not moved to compel production, and the documents requested appear duplicative to the deposition's scope. See May Tr. at 22:12-23:11 (Gatling). The Plaintiffs countered that they are entitled to both the documents and to depositions on the documents. See May Tr. at 23:15-19 (Leyendecker). Turning to the first requested production, the Court ruled that the Defendants need to produce the agreements between the Defendants and its payroll companies, because “when you have a witness, even a very prepared 30(b)(6) witness, if you don't have the document it makes questioning of that person very difficult.” May Tr. at 25:17-25 (Court). The Court subsequently ruled that the other documents requested are also relevant and ordered their production for the same reasons. See May Tr. at 28:12-14 (Court).

         Turning to the Motion to Quash, the Defendants argued that it is moot, because the Defendants have produced the requested documents. See May Tr. at 29:18-19 (Gatling). The Plaintiffs rejoined that it has not been mooted, because the documents that the Defendants produced do “not contain all the information that we know ADP has.” May Tr. at 33:10-11 (Leyendecker). They explained that the documents they already have demonstrate that ADP Payroll has records of New Mexico state tax withholdings for each employee, which demonstrates how large the New Mexico class is, yet the Plaintiffs have not received that information. See May Tr. at 33:12-24 (Leyendecker). The Plaintiffs also contend that ADP Payroll would have information about how many hours employees worked per day in the relevant pay period, which would demonstrate damages. See May Tr. at 34:5-11 (Leyendecker). The Defendants rejoined that they have asked ADP Payroll for all available information and that ADP Payroll represents that it has furnished all information. See May Tr. at 34:11-13 (Gatling). The Court ruled orally that it would deny the Motion to Quash, because it concludes that the information was relevant, but that documents from ADP Payroll needed to be presented to the Defendants first, so that they had an opportunity to filter irrelevant employees from the eventual document production. See May Tr. at 36:25-38:4 (Court). On May 25, 2017, the Court entered an order memorializing the Hearing's oral order granting in part and denying in part the Motion to Quash. See Subpoena Order at 1. It ordered that ADP Payroll and Corban OneSource produce the records which the subpoena requests only to Swire Oilfield by May 30, 2017, and ordered Swire Oilfield to produce the records to the Plaintiffs by June 14, 2017. Subpoena Order at 1.

         12. Enlargement Motion.

         The Defendants move for a one-week extension to the Subpoena Order's deadline. See Enlargement Motion at 1. The Defendants argue that an extension is proper, because, “immediately upon receipt of the documents, ” the Defendants began processing the documents for production to the Plaintiffs, but that ADP Payroll produced the documents in PDF format, so the Defendants had to redact many documents to protect Swire Oilfield employee's personal information. Enlargement Motion at 1. They also argue that an extension is proper, because Corban OneSource produced non-responsive records, some in PDF format, which also had to be reviewed for redaction. See Enlargement Motion at 1-2. Finally, they conclude that granting an extension will not delay the case, because the Plaintiffs have many of the records already and because there is no scheduling order that an extension would affect. See Enlargement Motion at 2.

         13. Third Motion to Compel.

         The Defendants filed a Third Motion to Compel requesting that the Court order ADP Payroll to appear for the deposition that they originally requested in their subpoena. See Third Motion to Compel at 2. As grounds for this request, they argue that the subpoenas instruct ADP Payroll and Corban OneSource to produce records in their native format, but that the Defendants represent in their Enlargement Motion that ADP Payroll and Corban OneSource produced those records in PDF format. See Third Motion to Compel at 1. They conclude that a deposition is justified, because they requested these records nine months ago, they still have not received them, and that they should receive them in their native format as they request. See Third Motion to Compel at 1.

         LAW REGARDING DISCOVERY

         Rule 34 governs discovery requests for tangible objects and states:

         A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information -- including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations -- stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Fed. R. Civ. P. 34(a). Discovery's proper scope is “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. . . .” Fed.R.Civ.P. 26(b)(1). The factors that bear upon proportionality are: “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.” Fed.R.Civ.P. 26 (b)(1).

         Discovery's scope under rule 26 is broad. See Gomez v. Martin Marietta Corp., 50 F.3d at 1520; Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004)(Browning, J.)(“The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve the full disclosure of all potentially relevant information.”). The federal discovery rules reflect the courts' and Congress' recognition that “mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. at 507. A district court is not, however, “required to permit plaintiff to engage in a ‘fishing expedition' in the hope of supporting his claim.” McGee v. Hayes, 43 F. App'x. 214, 217 (10th Cir. 2002)(unpublished).[12] “‘Discovery . . . is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support.'” Rivera v. DJO, LLC, No. 11-1119, 2012 WL 3860744, at *1 (D.N.M. August 27, 2012)(Browning, J.)(quoting Tottenham v. Trans World Gaming Corp., No. 00-7697, 2002 WL 1967023, at *2 (S.D.N.Y. 2002)(Knapp, J.)). “[B]road discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.” Gomez v. Martin Marietta Corp., 50 F.3d at 1520 (internal quotation marks omitted).

         The 2000 amendments to rule 26(b)(1) began narrowing the substantive scope of discovery and injected courts deeper into the discovery process. See Simon v. Taylor, No. 12-0096, 2015 WL 2225653, at *23 (D.N.M. April 30, 2015)(Browning, J.). Before the 2000 amendments, rule 26(b)(1) defined the scope of discovery as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending actions, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1)(1996). The 2000 amendments made the following changes, shown here with the deleted language stricken and the added material underlined:

Parties may obtain discovery regarding any matter, not privileged, that which is relevant to the subject matter involved in the pending actions, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant The information sought need not be admissible at the trial if discovery the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1). Putting aside the last sentence's changes -- which the advisory committee's notes make clear was a housekeeping amendment to clarify that inadmissible evidence must still be relevant to be discoverable -- the 2000 amendments have two effects: (i) they narrow the substantive scope of discovery in the first sentence; and (ii) they inject courts into the process in the entirely new second sentence.

In 1978, the Committee published for comment a proposed amendment, suggested by the Section of Litigation of the American Bar Association, to refine the scope of discovery by deleting the “subject matter” language. This proposal was withdrawn, and the Committee has since then made other changes in the discovery rules to address concerns about overbroad discovery. Concerns about costs and delay of discovery have persisted nonetheless, and other bar groups have repeatedly renewed similar proposals for amendment to this subdivision to delete the “subject matter” language. Nearly one-third of the lawyers surveyed in 1997 by the Federal Judicial Center endorsed narrowing the scope of discovery as a means of reducing litigation expense without interfering with fair case resolutions. [Federal Judicial Center, T. Willging, J. Shapard, D. Stienstra, & D. Miletich, Discovery and Disclosure Practice, Problems, and Proposals for Change] 44-45 (1997). The Committee has heard that in some instances, particularly cases involving large quantities of discovery, parties seek to justify discovery requests that sweep far beyond the claims and defenses of the parties on the ground that they nevertheless have a bearing on the “subject matter” involved in the action.
The amendments proposed for subdivision (b)(1) include one element of these earlier proposals but also differ from these proposals in significant ways. The similarity is that the amendments describe the scope of party-controlled discovery in terms of matter relevant to the claim or defense of any party. The court, however, retains authority to order discovery of any matter relevant to the subject matter involved in the action for good cause. The amendment is designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery. The Committee has been informed repeatedly by lawyers that involvement of the court in managing discovery is an important method of controlling problems of inappropriately broad discovery. Increasing the availability of judicial officers to resolve discovery disputes and increasing court management of discovery were both strongly endorsed by the attorneys surveyed by the Federal Judicial Center. See Discovery and Disclosure Practice, supra, at 44. Under the amended provisions, if there is an objection that discovery goes beyond material relevant to the parties' claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause standard warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard. Information about organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.
The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings. In general, it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial intervention. When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.
The amendments also modify the provision regarding discovery of information not admissible in evidence. As added in 1946, this sentence was designed to make clear that otherwise relevant material could not be withheld because it was hearsay or otherwise inadmissible. The Committee was concerned that the “reasonably calculated to lead to the discovery of admissible evidence” standard set forth in this sentence might swallow any other limitation on the scope of discovery. Accordingly, this sentence has been amended to clarify that information must be relevant to be discoverable, even though inadmissible, and that discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence. As used here, “relevant” means within the scope of discovery as defined in this subdivision, and it would include information relevant to the subject matter involved in the action if the court has ordered discovery to that limit based on a showing of good cause.
Finally, a sentence has been added calling attention to the limitations of subdivision (b)(2)(i), (ii), and (iii). These limitations apply to discovery that is otherwise within the scope of subdivision (b)(1). The Committee has been told repeatedly that courts have not implemented these limitations with the vigor that was contemplated. See 8 Federal Practice & Procedure § 2008.1 at 121. This otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery. Cf. Crawford-El v. Britton, [523 U.S. 574] (1998)(quoting Rule 26(b)(2)(iii) and stating that “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly”).

Fed. R. Civ. P. 26 advisory committee's notes (emphasis added).

         One gets the impression from reading the advisory committee's notes that the amendment was not intended to exclude a delineable swath of material so much as it is intended to send a signal to district judges to become more hands-on in the process of regulating -- mostly limiting -- discovery on relevance grounds alone. The “two effects” of the 2000 amendments might, thus, be only one effect: directing district judges to roll up their sleeves and manage discovery, and to do so on a relevance basis. The change in substantive scope from “subject matter, ” to “claim or defense, ” would, therefore, seem to “add teeth” to the relevance standard instead of narrowing that standard. It is not surprising that the Supreme Court of the United States of America and Congress would want to increase judicial presence: “relevance” is a liberal concept in the context of trial. Fed.R.Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”).

         Of course, regardless of the Court's musings about the rules, courts should also seek to give substantive content to amendments. Read literally, the rule does not permit parties to discover information relevant only to the claim or defense of another party; they must use discovery only to investigate their own claims and defenses. More problematically, however, the rule may prevent using the Federal Rules' compulsory discovery process to obtain “background” information not specifically relevant to any one claim or defense -- e.g., a plaintiff naming a pharmaceutical company as a defendant and then using discovery to educate itself generally about medicine, biochemistry, and the drug industry by using the defendant's expertise.

         In In re Cooper Tire & Rubber Co., 568 F.3d 1180 (10th Cir. 2009), the United States Court of Appeals for the Tenth Circuit clarified that the 2000 Amendments to rule 26 “implemented a two-tiered discovery process; the first tier being attorney-managed discovery of information relevant to any claim or defense of a party, and the second being court-managed discovery that can include information relevant to the subject matter of the action.” 568 F.3d at 1188. The Tenth Circuit further stated that,

when a party objects that discovery goes beyond that relevant to the claims or defenses, “the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action.” This good-cause standard is intended to be flexible. When the district court does intervene in discovery, it has discretion in determining what the scope of discovery should be. “[T]he actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.”

568 F.3d at 1188-89 (quoting the advisory committee's notes to the 2000 amendments to Fed.R.Civ.P. 26(b)(1))(citations and footnote omitted)(alteration in original).

         The 2015 amendments to rule 26(b)(1) continued this process of narrowing discovery's substantive scope and injecting courts further into the discovery process. The 2015 amendment made notable deletions and additions, both of which emphasized the need to make discovery proportional to the needs of the case. See Fed.R.Civ.P. 26(b)(1). Rule 26(b)(1), provides[13]:

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C) 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1)(alterations added).

         The Committee Notes state that the first deletion does not make a substantive change. Rather, the deletion was made because “[d]iscovery of such matters is so deeply entrenched” in standard discovery that including it would be “clutter.” Fed.R.Civ.P. 26(b) advisory committee's note to 2015 amendment.[14]

         Regarding the second deletion, the Committee Notes explain that the former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted.[15] Fed.R.Civ.P. 26(b) advisory committee's note to 2015 amendment.

The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that “‘relevant' means within the scope of discovery as defined in this subdivision. . . .” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.

Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment. The deletion, therefore, did not necessarily change discovery's scope, but clarified it. Accordingly, “[r]elevance 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.” State Farm Mutual Auto. Ins. Co. v. Fayda, No. 14-9792, 2015 WL 7871037, at *2 (S.D.N.Y. 2015)(Francis IV, M.J.)(internal quotation marks omitted)(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

         The most notable addition to rule 26(b) is the proportionality concept. Rule 26(b)(2)(C)(iii) has always limited overly burdensome discovery and required proportionality. See Fed.R.Civ.P. 26(b)(2)(C)(iii) (pre-2015 version). The proportionality requirement was relocated to 26(b)(1) to address the “explosion” of information that “has been exacerbated by the advent of e-discovery.”[16] Fed.R.Civ.P. 26(b) advisory committee's note to 2015 amendment. Describing how e-discovery is the driving factor in the 2015 amendment, the Committee Notes state:

The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.

Fed. R. Civ. P. 26(b) advisory committee's note to 2015 amendment.

         Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary indicates that the addition of proportionality to rule 26(b) “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.”[17] Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary at 6, Supreme Court of the United States, available at http://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx (“2015 Year-End Report”). He states that the proportionality concept seeks to “eliminate unnecessary or wasteful discovery, ” and to impose “careful and realistic assessment of actual need.” 2015 Year-End Report at 7. This assessment may, as a practical matter, require “judges to be more aggressive in identifying and discouraging discovery overuse by emphasizing the need to analyze proportionality before ordering production of relevant information.” State Farm Mutual Auto. Ins. Co. v. Fayda, 2015 WL 7871037, at *2 (internal quotation marks omitted). The burden of demonstrating relevance remains on the party seeking discovery, and the newly revised rule “does not place on the party seeking discovery the burden of addressing all proportionality considerations.” Fed.R.Civ.P. 26(b)(1) advisory committee's notes to 2015 amendment. See Dao v. Liberty Life Assurance Co. of Boston, No. 14-4749, 2016 WL 796095, at *3 (N.D. Cal. February 23, 2016)(LaPorte, M.J.)(observing that the 2015 amendment “reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses or objections”); Williams v. U.S. Envt'l Servs., LLC, No. 15-0168, 2016 WL 617447, at *1 n.2 (M.D. La. February 16, 2016)(Bourgeois, M.J.). In general, “the parties' responsibilities [] remain the same” as they were under the rule's earlier iteration so that the party resisting discovery has the burden of showing undue burden or expense. Fed.R.Civ.P. 26(b)(1) advisory committee's notes to 2015 amendment. See Dao v. Liberty Life Assurance Co. of Boston, 2016 WL 796095, at *3 (noting that, “while the language of the Rule has changed, the amended rule does not actually place a greater burden on the parties with respect to their discovery obligations”).

         Like with the 2000 amendments, it is unsurprising that the drafters are unable to articulate precise language narrowing the discovery's substantive scope. Instead of being Aristotelian and trying to draft rules, the drafters largely opted to make federal judges Plato's enlightened guardians. They have decided that no single general rule can adequately take into account the infinite number of possible permutations of different claims, defenses, parties, attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy, availabilities of information by other means, and other factors. They have dropped all discovery disputes into judges' laps. The drafters have decided that this determination requires the individualized judgment of someone on the scene, and that presence is what the rulemakers want when they: (i) encourage district judges to take a firmer grasp on the discovery's scope; and (ii) put their thumbs on the scale in favor of narrower discovery in the rule's definition of the scope of discovery.

         Rule 34 allows a party to serve requests to produce certain items “on any other party . . . in the responding party's possession, custody, or control.” Fed.R.Civ.P. 34(a)(1)(emphasis added). See Hickman v. Taylor, 329 U.S. at 504 (explaining that rule 34 “is limited to parties to the proceeding, thereby excluding their counsel or agents”). Applying this standard, courts have found that corporations control documents in their subsidiaries' hands, clients control case files in their attorneys' hands, and patients control health records in their healthcare providers' hands. See United States v. Stein, 488 F.Supp.2d 350, 360-62 (S.D.N.Y. 2007)(Kaplan, J.); CSI Inv. Partners II, L.P. v. Cendant Corp., 2006 WL 617983, at *6 (S.D.N.Y. March 13, 2006)(Eaton, M.J.)(compelling a client's attorney to disclose documents in the attorney's possession regarding the attorney's representation of that particular client, but only insofar as the documents were relevant). An employee's or corporation's ability to access the documents in the normal course of business weighs in favor of finding control. See, e.g., Gerling Int'l Ins. Co. v. Comm'r of Internal Revenue, 839 F.2d 131, 140-41 (3d Cir. 1988)(where “agent-subsidiary can secure documents of the principal-parent to meet its own business needs . . . the courts will not permit the agent-subsidiary to deny control for purposes of discovery”); Camden Iron & Metal v. Marubeni America Corp., 138 F.R.D. 438, 441 (D.N.J. 1991)(including “demonstrated access to documents in the ordinary course of business” in list of factors to be considered in determining control).

         Courts have specifically considered whether clients control information in their attorneys' hands. Because a client has the right “to obtain copies of documents gathered or created by its attorneys pursuant to their representation of that client, such documents are clearly within the client's control.” Am. Soc. For Prevention of Cruelty to Animals v. Ringling Bros. and Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006)(Facciola, M.J.). See Poppino v. Jones Store Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940)(“It is quite true that if an attorney for a party comes into possession of a document as attorney for that party his possession of the document is the possession of the party.”)(emphasis in original). Consequently, a party may be required to produce a document that it has turned over to its attorney when the document relates to the attorney's representation of that client on a specific matter. See In re Ruppert, 309 F.2d 97, 98 (6th Cir. 1962)(per curiam); Hanson v. Garland S.S. Co., 34 F.R.D. 493, 495 (N.D. Ohio 1964)(Connell, J.)(concluding that witness statements taken by a party's attorney in preparation of the case were within the party's control and subject to production under rule 34 on a proper showing); Kane v. News Syndicate Co., 1 F.R.D. 738, 738-39 (S.D.N.Y. 1941)(Mandelbaum, J.)(determining that a plaintiff in an action for copyright infringement could require the defendants' attorneys to produce a document from which the plaintiff hoped to ascertain whether material had been obtained from his copyrighted works).

The mere fact, however, that the attorney for a party has possession of a document does not make his possession of the document the possession of the party. The paper may be one of his private papers which he had before the relation of attorney and client was established. It is inconceivable that he should be required to produce such a paper for the inspection of his client's adversary. The paper which he has in his possession may be the property of some other client. It is inconceivable that he should be compelled to produce the document belonging to another client because the adversary of one of his clients demands it.

Poppino v. Jones Store Co., 1 F.R.D. at 219. See Hobley v. Burge, 433 F.3d 946 (7th Cir. 2006)(observing that a party may not have had control over its former attorney's documents); Ontario Inc. v. Auto Enterprises, Inc., 205 F.R.D. 195 (E.D. Mich. 2000). Simply put, if a person, corporation, or a person's attorney or agent can pick up a telephone and secure the document, that individual or entity controls it. See Simon v. Taylor, 2014 WL 6633917, at *34 (“Control is defined as the legal right to obtain documents upon demand.”).

         LAW REGARDING MOTIONS TO COMPEL

         Rule 37 provides enforcement mechanisms for rule 34. According to rule 37, if a party does not respond to an interrogatory or to a request for production, the party requesting the discovery may move the Court to compel the opposing party to respond. See Fed.R.Civ.P. 37(a)(2)(B). “[A]n evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). Se ...


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