United States District Court, D. New Mexico
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.
MEMORANDUM OPINION AND ORDER
H. RITTER, U.S. MAGISTRATE JUDGE
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
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.
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.
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.
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.
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.
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.
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
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.
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.
Civ. P. 26(b)(1). “Information within this scope of
discovery need not be admissible in ...