United States District Court, D. New Mexico
ORDER REGARDING DEFENDANT DUQUETTE'S MOTION TO
COMPEL INITIAL DISCLOSURE SUPPLEMENTATION
KHALSA UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendant Duquette's
Motion to Compel Initial Disclosure Supplementation (Doc.
29), filed December 18, 2018. The Court, having reviewed the
parties' submissions and the relevant law, FINDS that the
motion is well taken in part and is GRANTED IN PART and
DENIED IN PART as follows.
motion, Defendant Duquette asks the Court to compel Plaintiff
to supplement his Rule 26 initial and supplemental
disclosures with the following categories of documents and
information: (1) invoices or receipts for replacement parts
Plaintiff claims it purchased to repair the vehicle that was
damaged in the traffic accident at issue; (2) an
“explanation” for why “some of the
supporting documentation provided includes charges for labor,
” even though Plaintiff claims that its own mechanics
repaired the damaged vehicle; (3) an hourly
“accounting” of the specific tasks
Plaintiff's mechanics performed to repair the vehicle;
and, (4) documentation reflecting the labor and material
costs Plaintiff saved while the vehicle was out of service,
which would mitigate the damages it claims for lost income.
the first category of documents, Plaintiff indicates that it
has provided all of the responsive invoices and receipts
currently in its possession, custody, or control, that it has
not yet received receipts or invoices from all of the
third-party vendors in question, and in fact that some of
this documentation does not yet exist because the purchases
are not yet finalized. (Doc. 33.) Plaintiff cannot produce
what it does not have, though it would be well advised to
promptly subpoena and produce the documents it needs to
support its damages claims; and, it certainly cannot produce
what does not yet exist. As such, with one exception, the
Court will deny Defendant's motion to compel Plaintiff to
produce these documents at this time.
exception concerns expenses Plaintiff claims it incurred by
purchasing parts from Nuss Truck & Equipment
(“Nuss”). Plaintiff's damages computation
appears to be itemized on the invoice attached to
Defendant's reply as Exhibit A. (Doc. 35-1.) This invoice
includes two charges by Nuss, i.e., a $5, 994.65
charge for parts and a $100 charge for shipping.
(Id.) However, based on other documents Plaintiff
has disclosed, these amounts appear to be estimates. (Doc.
35-2 at 1.) The actual amount Plaintiff paid Nuss appears to
be $5, 953.27, which includes a $95 charge for
“freight.” (Doc. 29-9 at 2; Doc. 35-3 at 3.) The
Court will therefore grant Defendant's motion in part and
compel Plaintiff to either provide supporting documentation
for two Nuss charges in the amounts of $5, 994.65 and $100 or
revise its damages computation to conform with the documents
it has already disclosed, which reflect one Nuss charge in
the total amount of $5, 953.27.
next category of information Defendant seeks is an
“explanation” for why an unidentified portion of
Plaintiff's “supporting documentation”
(presumably invoices for materials purchased from third
parties) includes labor charges, even though Plaintiff claims
that its own mechanics repaired the damaged vehicle at issue.
Certainly, if documentation that includes or reflects such an
“accounting” or “explanation” exists
and Plaintiff has it, then Plaintiff should produce it. If,
however, as seems more likely, Plaintiff would have to
create this documentation, then Defendant should
pursue this information by other means, such as
interrogatories or depositions. Federal Rule of Civil
Procedure 26 does not require a plaintiff to answer every
question the defendant may have about its damages in its
initial disclosures. See generally Fed. R. Civ. P.
Court's reasoning is the same regarding the third
category of information Defendant seeks, i.e., an
hourly “accounting” of the specific tasks
Plaintiff's mechanics performed while repairing the
damaged vehicle. Again, if documentation reflecting the
requested “accounting” exists and Plaintiff has
it, then Plaintiff should produce it; however, if Plaintiff
would have to create it, then Defendant should pursue the
information by other means.
reply, Defendant Duquette abandons his request for the fourth
category of documents he sought in his motion to compel,
i.e., documents supporting mitigation of
Plaintiff's claim for lost income, to include invoices
reflecting labor and material costs Plaintiff avoided because
the damaged vehicle was out of service. Defendant abandoned
this request in light of Plaintiff's explanation that its
business provides concrete pumping trucks to third parties
such as construction contractors, and “doesn't
involve invoiced sums for labor or materials.” (Doc. 33
at 3.) The Court will therefore deny Defendant's motion
to compel Plaintiff to disclose this category of documents.
because it has granted Defendant's motion in part and
denied it in part, the Court declines to apportion the
expenses the parties incurred in connection with the motion
pursuant to Federal Rule of Civil Procedure 37(a)(5)(C).
 However, the Court reminds both
parties of their obligation to supplement their disclosures
and discovery requests in accordance with Federal Rule of
Civil Procedure 26(e) and this ...