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Environmental Dimensions, Inc. v. Energysolutions Government Group, Inc.

United States District Court, D. New Mexico

March 5, 2018

ENVIRONMENTAL DIMENSIONS, INC., A New Mexico Corporation, Plaintiff,
ENERGYSOLUTIONS GOVERNMENT GROUP, INC. n/k/a Atkins Energy Government Group, Inc., a foreign for profit corporation, Defendant.



         This matter comes before the Court on Defendant's Motion to Compel Discovery Responses to Interrogatories Nos. 6, 8, and 11; Request for Admission No. 2; and Requests for Production Nos. 7 and 13 (Doc. 38), filed December 1, 2017. Having considered the parties' positions and all pertinent authority, the Court will grant the Motion.[1]

         I. BACKGROUND

         As stated in Plaintiff's Complaint, Los Alamos National Security, LLC, (“LANS”) contracted with Plaintiff to “manage, treat, and package radioactive waste” generated at the Los Alamos National Laboratory (“LANL”). Doc. 1-1 at 4. Plaintiff, in turn, subcontracted with Defendant to “provide expert waste management personnel experienced in the LANS TRU Waste Program and knowledgeable of specific processes and procedures.” Id. Plaintiff contends that Defendant breached the subcontract by billing for services in excess of 35% of the work performed under Plaintiff's contract with LANS. Id. at 6. Plaintiff further alleges that Defendant has engaged in civil fraud, unfair trade practices, and tortious damage to its reputation and contract with LANS, ultimately resulting in “LANS eliminate[ing] the tasks that would have been otherwise assigned to Plaintiff … as a result of Defendant['s] conduct[.]” Id. at 12. Defendant admits that it contracted with Plaintiff but generally denies Plaintiff's claims. See Doc. 16 at 1-10. Defendant further brings counterclaims against Plaintiff for breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel/detrimental reliance, unjust enrichment, and open account/account stated. Id. at 10-17.

         Defendant served its first set of discovery requests upon Plaintiff on December 28, 2016, including 13 interrogatories, 5 requests for admission, and 17 requests for production. Doc. 38 at 2; Doc. 26 (Certificate of Service). Plaintiff's responses were due on January 27, 2017. Doc. 38 at 2; see Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A), 36(a)(3). However, on that date, Plaintiff emailed Defendant a letter enclosing only its responses to Defendant's requests for admissions. Doc. 27 (Certificate of Service); Doc. 38 at 2; Doc. 38-1; Doc. 38-2; Doc. 38-3. The letter further referenced a thumb drive containing unspecified documents. Doc. 38-2. Plaintiff stated that its responses to Defendant's interrogatories and requests for production would be “forthcoming.” Id. “The reference thumb drive arrived; however, it did not contain any documents.” Doc. 38 at 2.

         On February 3, 2017, Defendant emailed Plaintiff in an attempt to meet and confer about Plaintiff's deficient discovery responses. Doc. 38 at 2-3; Doc. 38-4. Plaintiff responded on February 10, 2017, apologizing for the blank thumb drive, and committing to get the balance of the owed discovery in the mail by close of business on February 15, 2017. Doc. 38 at 3; Doc. 38-5. Plaintiff's Certificate of Service for its responses indicate that it finally sent them on February 16, 2017. Doc. 29.

         On August 24, 2017, Defendant sent Plaintiff another meet and confer letter, this time raising specific “deficiencies” it identified in Plaintiff's responses to interrogatory numbers 1, 2, 3, 6, 8 and 11, requests for production numbers 3, 7, 9 and 13, and request for admission number 2. Doc. 38 at 4; Doc. 38-7. Plaintiff responded on August 28, 2017, promising to review its responses in light of Defendant's comments. Doc. 38 at 4; Doc. 38-8. On September 12, 2017, Plaintiff's counsel emailed Defendant stating that his client “has given me a diskette with a large number of files on it. Those are materials and emails from the LANL office of [Plaintiff] and some computer hard drives that were not originally scanned in the document production by the accounting department person that originally downloaded all the documents responding to the RFP you sent.” Doc. 38-10. Plaintiff further stated that the referenced diskette “should arrive shortly.” Id. Plaintiff provided additional documents responsive to Defendant's requests for production on September 20, 2017. Doc. 38 at 5.

         On October 13, 2017, Defendant again wrote to Plaintiff, seeking supplemental responses to its discovery requests. Doc. 38 at 5; Doc. 38-11. Plaintiff responded on October 20, 2017, indicating that it had mailed another thumb drive with “extensive discovery updates from computer hard drive inspections of other employees' hard drives[.]” Doc. 38 at 5; Doc. 38-12. Plaintiff also included revised discovery answers. Id. However, on November 6, 2017, Defendant emailed Plaintiff, stating that it had not received the referenced thumb drive. Doc. 38-13 at 2. Plaintiff responded on November 7, 2017, indicating that the thumb drive had been returned for postage due. Doc. 38-13 at 1. Plaintiff resent the thumb drive. However, when it was received by Defendant it was incomplete, containing only supplemental responses to interrogatories 1, 2 and 3, and so Plaintiff had to resend it. Doc. 38-13 at 1; Doc. 38-14. Then, on November 15, 2017, during a deposition, counsel for Plaintiff indicated that there were additional hard copy documents that had not been produced. Doc. 38-15. Finally, on November 17, 2017, Defendant received a diskette “which did not provide any new documents, and instead contained all previously produced documents, including those with identical Bates numbering.” Doc. 38 at 7.

         Defendant now moves the Court, “urg[ing]” it to compel Plaintiff to supplement its responses to interrogatory numbers 6, 8 and 11, requests for production numbers 7 and 13, and request for admission number 2. See Doc. 38 at 8-11. Defendant complains that it had to take two depositions of Plaintiff's former employees, Chris Edgmon (former project manager) and John Rodell (former COO), without complete discovery. See Id. at 8. Defendant seeks sanctions in the form of “disallowance of various claims or defenses to counterclaims or attorney's fees.” Id. at 11.

         “Plaintiff admits that [it] had difficulties with the initial production of documents[.]” Doc. 41 at 1. However, it contends that its “subsequent efforts at numbering and providing documents to Defendant were successful and continue to be used.” Id. Plaintiff further explains that it “was forced to lay off all of its employees and has only the Vice President of the company, Mr. Bradshaw as a knowledgeable person capable of searching, finding, and providing documents under the discovery requests of the Defendant.” Id. Plaintiff also offers excuses for its delays, including mistakes committed by its counsel in copying and mailing its various responses. Id. at 2. Plaintiff argues that “Defendant misconstrues its statement that employee hard drives were searched later, ” explaining that these subsequent searches were “confirmatory” and “conducted to make sure that the initial search of the Company correspondence files were properly numbered and turned over.” Id. Plaintiff explains that its initial responses to discovery were complete, and that the supplemental materials were drafts corresponding to final versions of letters that were already sent. Id. at 3. Plaintiff also explains that some of the supplemental discovery was “irrelevant to this litigation, ” sent “[o]ut of an abundance of caution[.]” Id. And, Plaintiff states that it expanded its answers to the interrogatories noted in Defendant's Motion to Compel, but that its “responses have not changed.” Id. at 4. Accordingly, Plaintiff asks the Court to deny Defendant's Motion.

         In its Reply, Defendant attaches Plaintiff's “Supplemental Discovery Response [Defendant's] Motion to Compel.” See Doc. 44-1. In this document, Plaintiff provides supplemental responses to all of the discovery requests at issue. See Id. Defendant appears to accept these responses for the most part, alleging only that Plaintiff's “expanded” answer to request for admission number 2 is deficient. Doc. 44 at 2. However, Defendant “has reason to believe” that Plaintiff's discovery responses continue to be incomplete. Doc. 44 at 4. It further contends that Plaintiff failed to produce “key documents” until after the present Motion was filed. Doc. 44 at 6. These documents appear to be the same that Plaintiff contended were irrelevant. See id.; Doc. 44-1. To the contrary, Defendant argues, these documents “are directly responsive to [its] requests for production.” Doc. 44 at 6. Defendant concludes by reiterating its request for sanctions, further explaining that it may need to reopen the depositions of Messrs. Rodell and Edgmon, and requesting fees and costs associated therewith. Doc. 44 at 10.


         Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery, providing that [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in ...

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