United States District Court, D. New Mexico
EDDIE LANDRY; MARIO CONSTANCIO, JR. and MARK TAMAYO, Plaintiffs,
SWIRE OILFIELD SERVICES, L.L.C. and SWIRE WATER SOLUTIONS, INC., Defendants.
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
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”); (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.; (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.
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. 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.
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.
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).
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.
The First Motion to Compel.
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.
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)).
Response to First Motion to Compel.
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.
Reply to First Motion to Compel.
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.
The March 23, 2017 Hearing.
Court held a hearing on March 23, 2017. See Draft
Transcript of Motion Hearing (taken March 23,
2017)(“March Tr.”). 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).
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 correspond to which document request.
See March Tr. at 33:11-15 (Gatling).
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).
Defendants' Status Report.
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.
The Motion for Protective Order.
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”). 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.
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,  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.
The Response to the Motion for Protective Order and the
Second Motion to
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. 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
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.
Second Motion to Compel Response.
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.
Motion to Quash Subpoena.
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.
Motion to Quash Response.
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.
The May Hearing.
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
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). 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).
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
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).
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).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).
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.
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
Third Motion to Compel.
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.
governs discovery requests for tangible objects and states:
may serve on any other party a request within the scope of
(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).
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). “‘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).
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
Fed. R. Civ. P. 26 advisory committee's notes (emphasis
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.”).
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 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
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
(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
Fed. R. Civ. P. 26(b)(1)(alterations added).
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.
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. 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
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)).
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.” 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
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.” Chief Justice
John Roberts, 2015 Year-End Report on the Federal Judiciary
at 6, Supreme Court of the United States, available at
(“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
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
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).
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
REGARDING MOTIONS TO COMPEL
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 ...