Sharp was appointed to oversee the Distribution Trust as set forth in the Confirmed Plan of Reorganization derived from the bankruptcy proceeding of Evans Industries, Inc. (“Evans”). The Distribution Trust was intended to gather the assets of Evans's estate and to distribute those assets to creditors of the estate. (R. Doc. 59, p. 2.)

On November 5, 2007, Sharp instituted the subject “directors and officers” suit against the Defendants, seeking recovery based on the Defendants' alleged failure to protect the value of Evans's assets both before and after Evans filed for bankruptcy protection. (R. Doc. 1, Compl.) Sharp further alleges that the Defendants operated from a “conflicted perspective and engaged in improper self-dealing” by pursuing certain actions and/or failing to take other actions that would have preserved some or all of Evans's assets. (R. Doc. 1; R. Doc. 59, p. 4.) He also asserts that the Defendants intentionally ignored or circumvented the safeguards that normally protect the creditors and shareholders of an insolvent corporation or a corporation that has filed for bankruptcy protection. (R. Doc. 1; R. Doc. 59, p. 4.)

During the course of discovery, on November 24, 2008, the Defendants propounded Interrogatories and Requests for Production of Documents upon Sharp. (See R. Doc. 53-3, Ex. A. pp. 1-5, Interrogs. and Req. for Produce. and Inspection of Docs.) Sharp provided his responses and objections on February 16, 2009, along with a series of computer discs containing responsive documents. (R. Doc. 59, p. 5; See also R. Doc. 53-3, Ex. A. pp. 6-29, Objections and Rasps. To Interrogs and Req. for Produce. and Inspection of Docs.) Sharp had obtained the responsive documents from the Derbes Law Firm, LLC (“Derbes”)–the firm which represented “the Evans Entities” prior to Evans's merger as well as Evans Industries, LLC during the bankruptcy proceeding and throughout the confirmation of the Reorganization Plan. (R. Doc. 59, pp. 5-6.) According to Sharp, Derbes provided the last disc on March 18, 2009, and Sharp produced that disc to the Defendants the same day.[1] (R. Doc. 59, p. 5.)

*2 The Defendants filed the instant motion on April 21, 2009, seeking an Order requiring Sharp to provide more specific answers to the discovery requests. (See generally R. Doc. 53.) According to the Defendants, Sharp's responses remain inadequate, because Sharp merely produced written answers which referenced discs containing 4,000 documents without correlating such documents. (R. Doc. 53-2, p. 2.) During the hearing, counsel for the Defendants clarified that the production actually consisted of 84,000 documents. (emphasis added).

Sharp opposes the motion, arguing that he has fully and adequately responded to the Defendants' discovery requests and has produced any and all evidence in his possession. (R. Doc. 59, pp. 1-2.) Although counsel for Sharp acknowledges that she initially agreed to provide descriptive lists for some of the documents on the discs, she emphasizes that this agreement was made prior to her learning that there are 84,000 pages of documents on the discs. (R. Doc. 59, p. 7.) Accordingly, Sharp argues that the preparation of a list describing all 84,000 documents would be unduly burdensome. (R. Doc. 59, p. 9.) He also asserts that the request for production of a descriptive list amounts to work product and opinion work product and is therefore impermissible. Ultimately, Sharp urges the Court to deny the subject motion in its entirety.

Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). The Rule specifies that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)(quoting Hackman v. Taylor, 329 U.S. 495, 507 (1947)). Furthermore, “it is well established that the scope of discovery is within the sound discretion of the trial court.” Coleman v. Amer. Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994).

Furthermore, under Rule 26(b)(2)(C), discovery may be limited if (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the information sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2)(C). In assessing whether the burden of the discovery outweighs the benefit, a court must account for: (1) the needs of the case; (2) the amount in controversy; (3) the parties' resources; (4) the importance of the issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the issues. Id.

The Defendants argue that Sharp's responses are inadequate because Sharp merely produced written answers which referenced discs containing 4,000 documents. (R. Doc. 53-2, p. 2.) They argue that the documentation produced does not correlate with any of the Interrogatories of Requests for Production and Inspection which were propounded. (R. Doc. 53-2, p. 2.) Therefore, the Defendants seek to compel more appropriate responses. They also request reasonable attorney's fees and costs. (R. Doc. 53-2, p. 2.)

*3 Sharp opposes the motion, arguing that he has fully and adequately responded to the Defendants' discovery requests. (R. Doc. 59, pp. 1-2.) He insists that any additional information he offered to provide was not required by law and was merely undertaken in the “spirt of cooperation.” (R. Doc. 59, p. 2.) Sharp explains that, upon information and belief, he has produced each and every piece of documentary evidence that exists. (R. Doc. 59, p. 7.) Sharp also points out that 13 of the Defendants' 15 Interrogatories instruct him to “list and describe each and every piece of documentary evidence” on a given topic.[2] Counsel for Sharp emphasizes that she agreed to provide listings of some of the documents on the discs which were specifically responsive to the Defendants' “ ‘please list and describe each and every item or document’ ” Interrogatories. (R. Doc. 59, p. 7.) However, counsel notes that, at the time she offered to provide these listings, she was unaware that there were more than 84,000 pages of documents contained on the discs. (R. Doc. 59, p. 7.)

Sharp insists that he has produced and/or made available for inspection and copying all relevant documents. (R. Doc. 59, p. 8.) Sharp also asserts that he produced the electronic documents in the format in which whey were ordinarily maintained, noting that the discs were produced exactly as received from Derbes, in the identical format and manner. (R. Doc. 59, pp. 9-10.) Furthermore, Sharp argues that it would be less burdensome for the Defendants to prepare a list describing the documents than it would be for him, particularly where, as here, the Defendants participated in and guided the events which are memorialized in the Derbes documents and may have created many of the documents. (R. Doc. 59, p. 9.) Finally, Sharp insists that to require him to generate “descriptive lists of documents equally accessible to both parties” would be tantamount to ordering the creation and production of what clearly comprises opinion work product and/or ordinary work product. (R. Doc. 59, pp. 11, 13.)

During the oral hearing, counsel for the Defendants argued that their request for a more specific, descriptive list of the documents previously sought via the discovery requests at issue is reasonable, emphasizing that 84,000 documents have been produced in an unorganized fashion. Counsel for Sharp replied, explaining that many of the documents are blank and were retrieved solely from the Defendant's company's lawyer's files. She also pointed out that the documents consists of emails between the Defendants and their counsel and were produced pursuant to the requests months ago in electronic format.

Upon review of the subject requests during the hearing, the Court noted that Request for Production No. 4, for example, simply asks Sharp to produce “any and all documents in your possession which support the allegations in each and every paragraph contained in the original Complaint and First Supplemental and Amending Complaint.” (R. Doc. 53-3, p. 15.) Counsel for Sharp explained that she produced all of the documents. Accordingly, the production to date seemed sufficient at first glance, particularly where as here, the Defendants did not ask Sharp to specifically identify which documents correspond with the individual allegations in the Complaint.

However, as the argument progressed, counsel for Sharp noted that the responsive documents were transferred to her firm from the Derbes firm. After receiving the documents, counsel for Sharp maintains that she had no choice but to produce the documents on discs due to a formatting incompatibility issue between the computers at both firms. She reiterated that she already produced these documents on her client's behalf and that they were produced in the manner they are kept and maintained in her office. She also pointed out that she does not have custody of Derbes's computers.

*4 The Court then asked counsel for Sharp whether the documents she produced provide the Defendants with any clue regarding his clients' alleged wrongdoing. Counsel replied affirmatively. She also asserted that the Bates number index that she prepared with respect to the documents at issue constitutes work product and is therefore not subject to discovery.

The Court remained unpersuaded by counsel's work product argument. The undersigned also expressed concern that counsel for Sharp had not adequately sanitized the documents and/or ascertained which documents were blank pages and which were totally irrelevant prior to producing them. Furthermore, the Court found that counsel for Sharp did not specify which documents were applicable to which allegations, as required by Federal Rule of Civil Procedure (“Rule”) 33.

In light of the foregoing, the Court orally ordered counsel for Sharp to supplement her client's response to the discovery requests within thirty (30) days. Specifically, the Court ordered counsel for Sharp to correlate the documents to the Complaint and the First Supplemental and Amending Complaint by providing a list of the Bates numbers that correspond with the allegations therein. The Court also instructed counsel to ensure that only relevant documents were produced by reviewing the discs and reproducing them after eliminating any non-responsive documents.

Therefore, the Defendants' motion to compel more specific answers to their discovery requests is granted as noted above. To the extent that Sharp has not yet supplemented his response to the discovery requests, he is ordered to do so no later than eleven (11) days from the entry of this Order. The Court, however, denies the Defendants' associated request for attorney's fees.

Accordingly,

IT IS ORDERED that the Defendants, Janice E. Hamilton, Gary V. Hamilton, Ronald J. Evans, Gary Roerig, and Lance Hamby's Motion To Compel More Specific Answers To Interrogatories and Responses To Requests for Production and Inspection of Documents (R. Doc. 53) is hereby GRANTED IN PART and DENIED IN PART.

Sharp explains the delayed production, noting that Derbes originally produced the documents responsive to the Defendants' discovery requests via email. However, due to technical difficulties, only one page of the documents could be opened. Accordingly, Sharp asked Derbes to produce the documents in disc format. Sharp apparently received the last disc from Derbes on March 18, 2009.

For example, Interrogatory No. 1 asks Sharp to “list and describe each and every piece of documentary evidence [he has] in support of each allegation contained in the original Complaint and Supplemental and Amending Complaint, identifying the document, date of document, and individual in possession of the document.” (R. Doc. 53-3, p. 19, Interrog, No. 1.)