S. Capitol Enters., Inc. v. Conseco Servs., LLC
S. Capitol Enters., Inc. v. Conseco Servs., LLC
2005 WL 8155415 (M.D. La. 2005)
October 6, 2005
Riedlinger, Stephen C., United States Magistrate Judge
Summary
The court granted the plaintiffs' motion to compel the defendant to produce the group billing records sought in Request for Production Number 5 without objections, and to provide an explanation of the “plan codes” and “product codes” contained in its response to Request for Production Number 16. The court also denied the defendant's motion for a protective order, finding that the defendant had not established that the production of documents was unduly burdensome or expensive.
SOUTHERN CAPITOL ENTERPRISES, INC. AND F. DAVID TUTT
v.
CONSECO SERVICES, L.L.C
v.
CONSECO SERVICES, L.L.C
CIVIL ACTION NUMBER 04-040-JJB-SCR, CIVIL ACTION NUMBER 04-705-JJB-SCR
United States District Court, M.D. Louisiana
October 06, 2005
Counsel
Steven C. Thompson, Stephen Layne Lee, Moore, Thompson, Lee & Broyles, Baton Rouge, LA, for Southern Capitol Enterprises, Inc. and F. David Tutt.Christine Lipsey, McGlinchey Stafford, PLLC, Baton Rouge, LA, Gary L. Howard, Paul P. Bolus, Bradley Arant Rose & White, Birmingham, AL, Michael Paul Fruge', Clayton and Fruge, Port Allen, LA, for Conseco Services, L.L.C.
Riedlinger, Stephen C., United States Magistrate Judge
RULINGS ON MOTION TO COMPEL FULL AND COMPLETE RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND MOTION FOR PROTECTIVE ORDER
*1 Before the court is a Motion to Compel Full and Complete Responses to Requests for Production of Documents filed by plaintiffs Southern Capitol Enterprises, Inc. and F. David Tutt. Record document numbers 73. Also before the court is a Motion for Protective Order filed by defendant Conseco Services, L.L.C. Record document number 78. The motion to compel is opposed.[1]
This matter arises out of contractual agreements between the plaintiffs and the defendant, which allegedly entitled the plaintiffs to receive commissions on sales and renewals of insurance policies. Plaintiffs claimed that commission payments were not properly made under the contract and that the extent of the underpayment is unknown. Plaintiffs asserted that their discovery requests will produce information necessary to evaluate their damages.
Plaintiffs filed a motion to compel the defendant to fully and completely respond to specific requests in both its first and second requests for production of documents. Plaintiffs asserted that the responses provided by the defendant were inadequate because the defendant failed to provide crucial information that is solely and exclusively within its possession and control.
Defendant asserted that the discovery requests at issue were nothing more than a fishing expedition. In support of this assertion, the defendant argued that the plaintiffs have not presented any evidence to support their claims, noting particularly that both F. David Tutt and his wife acknowledged the lack of evidence in their depositions.[2]
A review of the parties' arguments and exhibits show that the defendant should produce the group billing records sought in Request for Production Number 5. Plaintiffs asserted that the documents in this request were necessary to determine whether the proper commissions were being paid. Defendant responded by providing a spreadsheet which included information regarding insurance premiums collected by the defendant. Defendant asserted that the spreadsheet provided the same basic information as the billing records.
Defendant failed to establish that Request for Production Number 5 was irrelevant to the plaintiff's claims or that the production of such documents was overly burdensome. The billing records are the most reliable source for determining commission payment discrepancies. Defendant's assertion that the information contained in the billing records was substantially reproduced in the spreadsheet is unpersuasive in light of the defendant's own argument opposing Request for Production Number 6. Its response to that request indicates that the group billing records contain additional, more detailed, information relevant to the plaintiffs' claims.[3] Production of the actual records will also resolve any inaccuracies in the defendant's spreadsheet. Accordingly, the defendant is required to produce the group billing records sought in Request for Production Number 5.
*2 Defendant argued in its Motion for Protective Order that the plaintiffs should bear the expense of any additional production.[4] Defendant argued that shifting production costs is appropriate under the eight factors cited in Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002).[5]
Under the discovery rules, the presumption is that the responding party must bear the expense of complying with the discovery requests.[6] In cases involving electronic discovery, cost-shifting may be considered only when it imposes an “undue burden or expense” on the responding party.[7] “The burden or expense of discovery is, in turn, ‘undue’ when it ‘outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.’ ”[8] Whether the production of documents is unduly burdensome or expensive, thereby necessitating a cost-shifting analysis, “turns primarily on whether it [electronic records] is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production).”[9]
*3 While the defendant submitted evidence demonstrating that compliance with the plaintiffs' Request for Production Number 5 would cost the defendant $5,640 in time and manpower, it failed to explain how it determined this cost.[10] Defendant's reference to time and manpower is vague and ambiguous and does not establish the unduly burdensome nature of the cost, particularly in light of the fact that the information is retrievable.[11] As the responding party, the defendant has not overcome the presumption that it should bear the cost of this discovery.
Plaintiffs also sought the clarification of certain codes used in the documents produced in the defendant's response to Request for Production Number 16. This request sought the production of a Microsoft Excel file containing a list of all policies issued by Conseco Senior Health Insurance Company in the State of Louisiana at any time during its existence. The spreadsheets submitted by the defendant in compliance with this request contained certain codes, including plan codes and product codes, which rendered the relevant information of the spreadsheets indecipherable. Defendant's argument that the plaintiff did not request that specific information in their original request is without merit. Defendant is required to produce the requested information in a manner which the plaintiffs can comprehend.
The remaining requests for production were either sufficiently answered by the defendant or do not require a response at this time. Requests for Production Numbers 11, 12, and 13 sought documents, materials, and/or any other tangible evidence supporting the defendant's counterclaims regarding the plaintiff's failure to return confidential information.[12]Defendant argued that the documents supporting the counterclaims were in the exclusive possession of the plaintiff.
Defendant's responses indicate that the defendant is not in possession of any documents that support its counterclaims other than those document referred to in its response to Request for Production Number 13. If this is an inaccurate interpretation, the defendant should amend its responses and submit the relevant materials to the plaintiff, or bear the risk of sanctions under Rule 37.
Because Rule 37 provides a remedy for evasive or incomplete responses, it is also unnecessary for the defendant to verify its responses to Request for Production Numbers 1, 2, and 3.
Defendant has sufficiently complied with Requests for Production of Documents Numbers 10 and 14. The requested documents were produced in the same manner that the information was kept in the usual course of business. Defendant is not required to reorganize the information requested by the plaintiffs into a more searchable format.
Because the plaintiffs have not presented any evidence supporting their claims, it is unreasonable to believe that Requests for Production Numbers 6, 7, and 9 will lead to the discovery of admissible evidence. The group billing records and other discovery responses previously submitted should provide the plaintiffs with some evidence of a discrepancy in the commissions paid. Until the plaintiffs can produce some evidence supporting their claim for unpaid commission or other wrongful conduct of the defendant, additional production of documents is not unwarranted. If the plaintiffs can provide such evidence, the court will reconsider whether the remaining requests for production are reasonable.
*4 Considering the foregoing, the additional relief sought in the defendant's motion for a protective order not specifically discussed in this ruling is premature.
Accordingly, the motion to compel discovery filed by plaintiffs is granted, in part. Defendant shall provide a full and complete response to Request for Production of Documents Number 5 without objections,[13] within 30 days. Defendant shall also provide an explanation of the “plan codes” and “product codes” contained in its response to Request for Production of Document Number 16 within 10 days. Defendant's Motion for Protective Order is denied. Under Rule 37(a)(4)(C), the parties shall bear their respective costs incurred in connection with the motions.
Baton Rouge, Louisiana, October 6, 2005.
Footnotes
Record document number 77.
Record document number 77, opposition memorandum, p. 3.
See, record document number 77, opposition memorandum. Defendant asserted that the information sought in Request for Production Number 6, i.e. new business written in the plaintiffs' accounts, could be “gleaned” from the documents produced in Request for Production Number 5. Defendant added that if it were required to produce the group billing records in Request Number 5, this production would moot a response to Request Number 6.
Record document number 79, supporting memorandum to motion for protective order. Defendant also argued that it should not be required to produce ad hoc reports. This argument does not need to be addressed with respect to Request for Production Number 5 because it seeks actual records rather than a newly-created report.
Those eight factors include: (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefits to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative resources available to each party. Rowe, 205 F.R.D. at 429. In Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 316 (S.D.N.Y. 2003), the court modified these factors to include: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. Although the Eastern District of Louisiana cited the Rowe factors in Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439 (E.D. La. Feb. 19, 2002, this decision was rendered prior to Zubulake. For the reasons cited in Zubulake in favor of the modifications, this court finds that the Zubulake factors are more appropriate.
Zubulake, 217 F.R.D. at 316, citing, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380 (1978)
Zubulake, 217 F.R.D. at 318. See categories of electronic data storage listed discuss in Zubulake, 217 F.R.D. 318-20.
Record document number 77, opposition memorandum, exhibit B, Affidavit of James A. Such, ¶ 5.
Request for Production Number 13 also sought documents supporting the defendant's defenses to the plaintiff's claims. Defendant asserted that this request was vague and ambiguous. Without waiving this objection, defendant referred to discovery responses and pleadings in this matter, as well as documents produced by Conseco.
Generally discovery objections are waived if a party fails to timely object to interrogatories, production requests or other discovery efforts. See, In re U.S., 864 F.2d 1153, 1156 (5th Cir.), reh'g denied, 869 F.2d 1487(5th Cir. 1989); Godsey v. U.S., 133 F.R.D. 111, 113 (S.D.Miss. 1990).