Sinclair Wyo. Ref. Co. v. A&B Builders, Ltd.
Sinclair Wyo. Ref. Co. v. A&B Builders, Ltd.
2017 WL 10309306 (D. Wyo. 2017)
October 31, 2017
Rankin, Kelly H., United States Magistrate Judge
Summary
The court found that the information surrounding the “hold” requests and the preservation efforts were discoverable, including the production of such information as to who received the “hold” requests, the dates those notices were issued, and the categories of data targeted for preservation. This allowed the parties to gain access to the relevant ESI and to ensure that all relevant ESI was preserved and available for use in the case.
Additional Decisions
SINCLAIR WYOMING REFINING COMPANY, a Wyoming Corporation, Plaintiff,
v.
A&B BUILDERS, LTD., a Texas limited partnership; MATRIX ENGINEEERING, LTD., a Texas limited partnership; APPLIED CONTROL EQUIPMENT, LLC, a dissolved Colorado limited liability company nka APPLIED CONTROL EQUIPMENT, LLLP, a Colorado limited liability limited partnership; INSTRUMENT & VALVE SERVICES COPMANY, a Delaware Company; FISHER SERVICE CO. dba FISHER CONTROLS INTERNATIONAL, INC., a Delaware corporation nka FISHER CONTROLS INTERNATIONAL, LLC, a Delaware limited liability company, and EMERSON PROCESS MANAGEMENT LLLP, a Delaware limited liability limited partnership, Defendants
v.
A&B BUILDERS, LTD., a Texas limited partnership; MATRIX ENGINEEERING, LTD., a Texas limited partnership; APPLIED CONTROL EQUIPMENT, LLC, a dissolved Colorado limited liability company nka APPLIED CONTROL EQUIPMENT, LLLP, a Colorado limited liability limited partnership; INSTRUMENT & VALVE SERVICES COPMANY, a Delaware Company; FISHER SERVICE CO. dba FISHER CONTROLS INTERNATIONAL, INC., a Delaware corporation nka FISHER CONTROLS INTERNATIONAL, LLC, a Delaware limited liability company, and EMERSON PROCESS MANAGEMENT LLLP, a Delaware limited liability limited partnership, Defendants
Civil No. 15-CV-91-ABJ
United States District Court, D. Wyoming
Filed October 31, 2017
Counsel
Brad W. Breslau, Pro Hac Vice, Cheri L. MacArthur, Pro Hac Vice, Richard R. Rardin, Cozen O'Connor, Denver, CO, Charles R. Tuffley, Pro Hac Vice, Geoffrey D. Farnham, Pro Hac Vice, Denenberg Tuffley PLLC, Southfield, MI, Kevin P. Caraher, Pro Hac Vice, Cozen O'Connor, Chicago, IL, Mark T. Mullen, Pro Hac Vice, David J. Walton, Pro Hac Vice, Cozen O'Connor, Philadelphia, PA, Thomas M. Regan, Cozen O'Connor, San Diego, CA, for Plaintiff.Bennett J. Lee, Pro Hac Vice, Garrett E. Dillon, Pro Hac Vice, Nicholas A. Merrell, Pro Hac Vice, Steven M. Wheat, Pro Hac Vice, Vincent Sebastinelli, Pro Hac Vice, Varela Lee Metz & Guarino LLP, San Francisco, CA, Steven F. Freudenthal, Freudenthal & Bonds, Cheyenne, WY, Janet B. Martin, Pro Hac Vice, Jay Scott Lasater, Pro Hac Vice, Leif Andrew Olaf Distad, Randy L. Sego, Lasater & Martin PC, Highlands Ranch, CO, David F. Evans, Hickey & Evans, Cheyenne, WY, Douglas H. Fleming, Pro Hac Vice, James E. Breitenbucher, Pro Hac Vice, Laura P. Hansen, Pro Hac Vice, Fox Rothschild LLP, Seattle, WA, James F. Bennett, Jennifer S. Kingston, John D. Comerford, Dowd Bennett LLP, St. Louis, MO, Matthew E. Johnson, Pro Hac Vice, Dowd Bennett LLP, Denver, CO, Michelle D. Nasser, Pro Hac Vice, Dowd Bennett LLP, Saint Louis, MO, Patrick D. McVey, Pro Hac Vice, James E. Breitenbucher, Fox Rothschild LLP, Seattle, WA, Paul J. Hickey, Robert John Walker, Hickey & Evans, Cheyenne, WY, for Defendants.
Rankin, Kelly H., United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART IVS DEFENDANTS' MOTION TO COMPEL [DOC. 217] AND DENYING PLAINTIFF'S MOTION FOR PROTECTIVE ORDER [DOC. 216]
*1 This matter is before the Court on Plaintiff's Motion for a Protective Order [Doc. 216] and IVS Defendants'[1] Motion to Compel [Doc. 217]. The Court having carefully considered the filings finds the IVS Defendants may conduct the deposition regarding Pro-Inspect topics # 3, 9, 11, 12, 13, and 18, and on the “hold” requests in topics #16, 17, and 18. However, IVS Defendants' request for the production of withheld communications is denied. The Court therefore denies Plaintiff's Motion for a Protective Order [Doc. 216] and grants in part and denies in part Defendant's Motion to Compel [Doc. 217].
While discovery on discovery is generally improper, the Court finds there is sufficient evidence that raises the issue of spoliation at this time. Further discovery into the issue may show its existence or non-existence. The Court is hesitant to allow discovery into the topic of Pro-Inspect. However, Pro-Inspect is sufficiently relevant, the potential prejudice and burden to Plaintiff is minimal, and there is sufficient indication of spoliation. Therefore, the Court allows the deposition on the topics regarding Pro-Inspect. The Court also finds the facts surrounding the “hold” notices are discoverable pursuant to Boyington v. Percheron Field Services, LLC. The “hold” notices themselves and communications regarding the notices, however, may be protected by the attorney-client privilege. At this time, the Court will not issue an opinion regarding the production of those communications as the briefing on the topic was improper.
BACKGROUND
This case arises from a September 27, 2013, explosion and fire at the Sinclair Refinery in Sinclair, Wyoming which caused damage to Plaintiff's hydrotreater unit, #4 HDS Unit. Pl.'s Compl., ECF No. 91, 7. The uncontroverted cause of the explosion was the failure of a valve, FV-241, on #4 HDS unit. Def.'s Mot. to Compel, ECF No. 206, 2; Pl.'s Resp. to Mot. to Compel, ECF No. 209, 2. A High-Temperature Hydrogen Attack caused the failure of FV-241 and the result of the valve's failure was the ignition of a fugitive pressurized and flammable hydrogen gas. Pl.s Compl., ECF No. 91, 7. Plaintiff claims damages in excess of $119,000,000. Id.
Earlier this year, Sinclair produced documents relating to Pro-Inspect, subject to agreed upon search terms. Following the production of these documents, IVS Defendants served a Rule 30(b)(6) Deposition Notice and Plaintiff objected to various topics included in the Notice. The Court held an informal telephonic conference with the parties on October 4, 2017, regarding the dispute. After hearing from the parties, the Court ordered counsel to confer no later than Friday October 6, 2017, and attempt to resolve the dispute without Court involvement. Txt. Only Order, ECF No. 2014. The Court further ordered another informal telephonic conference for October 10, 2017. Id. Defendants agreed to make various modifications to the Rule 30(b)(6) Deposition Notice during the October 6 meeting. Defendants served the modified Rule 30(b)(6) Deposition Notice on Plaintiff on October 6, 2017. Plaintiff served another Response to Defendants establishing the remaining objections.
*2 The Court subsequently held the October 10, 2017, discovery conference to discuss Plaintiff's remaining objections. Following the conference, the Court ordered the parties to submit simultaneous and expedited briefing on topics #3, 9, 11, 12, 13, 16, 17, and 18 of the Rule 30(b)(6) Deposition Notice. Txt. Only Order, ECF No. 215. The Court further ordered, pending an Order on the Rule 30(b)(6) Deposition Notice, the parties to prepare for all the topics (#1-29) for the depositions to occur during the week of November 6, 2017. Pursuant to Court order, Plaintiff filed a Motion for a Protective Order [Doc. 216] and IVS Defendants filed a Motion to Compel [Doc. 217]. Additionally, CB&I Defendants[2] filed a Response Brief in Support of IVS Defendants' Motion to Compel [Doc. 223] and Applied Defendants[3] filed a Notice of Joinder to incorporate the arguments of the other Defendants. The Motion for a Protective Order and the Motion to Compel are the basis for the current dispute between the parties.
PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER [DOC. 216]
Plaintiff generally argues deposition topics #3, 9, 11, 12, 13, 16, 17, and 18 are not proper within the scope of discovery because the topics: (1) seek information that is irrelevant and disproportionate to the needs of the case, (2) seek information protected by the attorney-client privilege and/or work-product, and (3) are overbroad and unduly burdensome. Pl.'s Mot. for Prot. Order, ECF No. 216-2. Plaintiff begins by separating the topics into two sections. Topics #3, 9, 11, 12, 13 and 18 relate to the Pro-Inspect litigation. Pl.'s Mot. for Prot. Order, ECF No. 216 at 3. Specifically, Topic #11 involves the deposition of J.R. Eggleston, Topic #12 involves the deposition of John Rosacker, and Topic #13 involves the deposition of Sara Harkins. The second section deals with topics #16, 17, and 18 which seek information regarding “hold” requests in the current litigation, Pro-Inspect litigation, and Infrassure litigation. Id.
Plaintiff also provides background information regarding the Pro-Inspectlitigation. Pro-Inspect arose from an explosion at Sinclair's refinery in 2011. Id. The cause of the explosion was a pipe burst at 583 crude unit and Sinclair initiated suit due to the resulting significant property damage and business interruption losses. Id. Discovery in Pro-Inspect closed on November 15, 2013 and the case was tried from April 16 through April 28, 2014. Pl.'s Mot. for Prot. Order, ECF No. 216 at 5. On the final day of trial, the Court took the case under advisement and the matter remains pending. Id.
With respect to the topics #11, 12, and 13, each of those individuals played a different role in the Pro-Inspect litigation. J.R. Eggleston was an employee of Sinclair during two different periods and was the custodian for the documents related to Pro-Inspect. Pl.'s Mot. for Prot. Order, ECF No. 216-2 at 13; Pl.'s Mot. for Prot. Order, ECF No. 216 at 3. Plaintiff's claim Mr. Eggleston's “material obtained from his first employment was produced in the Pro-Inspect litigation.” Id. However, Mr. Eggleston's custodian file for his second employment cannot be located. Pl.'s Mot. for Prot. Order, ECF No. 216 at 3 n. 4. John Rosacker was also a custodian for documents involved in the Pro-Inspect litigation and those materials were also produced. Pl.'s Mot. for Prot. Order, ECF No. 216-2 at 14; Pl.'s Mot. for Prot. Order, ECF No. 216 at 3, n. 5. Mr. Rosacker was not an employee of Sinclair at the time of the September 2013 incident. Pl.'s Mot. for Prot. Order, ECF No. 216-2 at 14. Finally, Sara Harkins' file was produced in the Pro-Inspect litigation and she was not an employee at Sinclair at the time of the September 2013 incident. Id. at 15.
*3 Plaintiff argues Pro-Inspect “involves a different unit, a different explosion, and a different time frame. It also involves different parties, different discovery requests, different custodians and witnesses, different discovery orders and rulings, and different issues.” Pl.'s Mot. for Prot. Order, ECF No. 216 at 3. Distinguishing Pro-Inspect from the present case, Plaintiff argues Pro-Inspect is unrelated to and is therefore not discoverable as it is not relevant to any party's claim. Id. at 4-5. Plaintiff particularly highlights the fact Pro-Inspect is pending final decision. Id. at 4.
Since the final decision in Pro-Inspect is pending, Plaintiff claims the risk of prejudice outweighs any marginal relevance. The risk of prejudice includes creating “an opportunity for Pro-Inspect's counsel, Hickey and Evans, who are counsel for [IVS Defendants] here, to use the discovery now sought in this case as a back-door device to re-open discovery into an unrelated pending case ....” Id. at 5. This also increases the risk of confusion. Id.Plaintiff finally argues prejudice stating, “[o]rdering additional discovery into the Pro-Inspect case in this litigation is tantamount to ordering discovery reopened in the Pro-Inspect litigation ....” Id. Further, this discovery on discovery is generally not allowed. Id. at 6.
Plaintiff's remaining arguments include a concern the topics in a deposition may implicate attorney-client privilege and/or work-product. Id. at 7. Plaintiff states discovery into the custodians of the records has the potential to reveal legal strategy. Id. Finally, Plaintiff argues the topics are unduly burdensome as they are outside the proper temporal scope. Id. at 8.
On the remaining topics relating to “hold” requests, Plaintiff agrees to make the information pertaining to the requests in the present case and Infrassureavailable pursuant to the requirements in Boyington v. Percheron Field Services, LLC, 2016 WL 6068813 (2016). Id. at 8-9. Boyington sets forth hold letters themselves are not discoverable, however, the information surrounding preservation efforts are discoverable. These preservation efforts generally involve the steps and processes of such efforts.
IVS DEFENDANTS' MOTION TO COMPEL [DOC. 217]
IVS Defendants emphasize they are only seeking information about the sources of already produced documents. Def.'s Mot. to Compel, ECF No. 217 at 6. There is no interest to delve into legal strategies employed or the reasons why certain policies or protocols were or were not followed. Id. at 8. Rather, IVS Defendants seek information on the process itself and to discover what documents were collected. Id. The focus is therefore on the facts surrounding preservation as opposed to decisions as how preservation was conducted. Id.
Specifically, IVS Defendants argue such information regarding Pro-Inspectdocuments is relevant because “[b]oth cases involve Sinclair's failure to implement PSM practices and procedures that met federal requirements and industry standards.” Id. at 2. Not only are there similar issues, IVS Defendants claim the issue of spoliation makes such discovery necessary. Id. at 7. IVS Defendants note Plaintiff has admitted to destroying critical documents. Id. Therefore, to understand the extent of prejudice to IVS Defendants resulting from Plaintiff's spoliation, IVS Defendants must inquire about what documents Plaintiff collected and which they did not. Id.
IVS Defendants not only request the depositions on all topics (#1-29), they further request the Court order Plaintiff produce all hold notices and communications to Sinclair employees about preserving evidence. Id. at 9. IVS Defendants argue such a production is necessary because such communications are discoverable in the face of spoliation. Id.
PLAINTIFF'S RESPONSE [DOC. 222]
*4 In Response, Plaintiff argues IVS Defendants mischaracterize the issues in the Pro-Inspect litigation. Pl.'s Resp., ECF No. 222 at 4. Pro-Inspectinvolves a negligent pipe inspection on a different unit and the present case involves improper metallurgy in a valve. Id. Further, Plaintiff argues the trial briefs in Pro-Inspect did not involve a conversation about PSM policies or practices and the issue was not central to the case. Id.
Plaintiff then argues they have produced all the information from the Pro-Inspect litigation and IVS Defendants failed to show how these deposition could add anything to discovery. Id. at 5. Plaintiff states, “[d]eposing Sinclair's witnesses now about custodians and dates of collection in the Pro-Inspect case can neither shrink nor expand the data available from that case.” Id. Such discovery, Plaintiff argues, is unprecedented. Id. at 6.
In regards to the hold notices, Plaintiff reiterates they are willing to produce information pursuant to Boyington with respect to the current litigation and Infrassure. However, IVS Defendants request for the production of the 164 highlighted withheld communications is improper. Plaintiff argues this request is improper because this issue was never raised during the telephonic informal conference with the Court and the documents sought are privileged.
CB&I DEFENDANTS' BRIEF IN SUPPORT OF IVS DEFENDANTS' MOTION TO COMPEL [DOC. 223]
CB&I Defendants argue the Court should grant the Motion to Compel since Plaintiff waived it's privilege through spoliation of evidence. Def.'s Br. In Support, EFF No. 223 at 1. CB&I Defendants support this argument by citing various communications with Plaintiff and the testimony of witnesses. CB&I Defendants close by stating these topics are permissible discovery since “Sinclair's spoliation is not an allegation; it is a fact.” Id. at 5.
IVS DEFENDANTS' RESPONSE [DOC. 224]
IVS Defendants reiterate they are not seeking discovery into legal strategy, they are seeking information regarding the facts surrounding preservation in Pro-Inspect. Def.'s Resp., ECF No. 224 at 2. Once again, IVS Defendants state collection dates and the custodians are essential to understanding the documents produced. Id. at 4. The remainder of IVS Defendants' Response argues for the need to produce the hold notices and any communications surrounding them. Id. at 4-8. Additionally, IVS Defendants argue there is no attorney-client privilege with respect to these documents. Id.
RELEVANT LAW
Rule 26 of the Federal Rules of Civil Procedure states,
[p]arties may obtain discovery regarding any non-privileged 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). The purpose of the rule is to allow broad discovery of relevant information as long as the discovery is proportional to the needs of the case and the information is not privileged. Id. Whether the information is admissible at trial is not a consideration. The reach of discovery permitted under Rule 26 “contemplates discovery into any matter that bears on or that reasonably could lead to other matters that could bear on any issue that is or may be raised in a case.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 649–50 (D.N.M. 2007) (quotations and citations omitted).
*5 In determining relevancy, a “request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the claim or defense of any party.” Estate of Collins v. United States, No. 10-CV-035-F, 2010 WL 11431843, at *1 (D. Wyo. Oct. 14, 2010)(internal citations and quotations omitted). While there is no presumption a discovery request is relevant, “relevance is often apparent on the face of the request.” In re Bank of Am. Wage & Hour Employment Practices Litig., 275 F.R.D. 534, 538 (D. Kan. 2011) (internal citations and quotations omitted). When a discovery request is not relevant on its face, “the proponent of the discovery has the burden to show the relevance of the discovery sought.” Id. When a discovery request appears facially relevant, the burden shifts to the resisting party to establish the request is not relevant by showing the request “(1) does not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad discovery.” Cont'l Coal, Inc. v. Cunningham, 06–2122–KHV, 2007 WL 4241848 (D. Kan. Nov. 28, 2007) (quoting Gen. Elec. Capital Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2004)).
In 2015, Rule 26(b)(1) was amended to restore “the proportionality factors in their original place in defining the scope of discovery.” .” Fed. R. Civ. P. 26, Adv. Comm. Notes, 2015 Amendments; Carr v. State Farm Mutual Automobile Ins. Co, 312 F.R.D. 459, 467 (N.D. Tex. 2015); see also National Railroad Passenger Corp. et al v. Cimarron Crossing Feeders, et al, 16-cv-1094-JTM-TJJ, 2017 WL 4770702, at *4 (D. Kansas 2017)(discussing a change from the 2015 amendments was to restore “proportionality to the definition of the scope of discovery.”). Prior to the 2015 amendments, Rule 26(b)(2)(C)(iii) allowed the court to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Most of the language from Rule 26(b)(2)(C)(iii) was adopted in 1983 and the 1983 Committee Note states the provisions were added “to deal with the problem of over discovery.” Fed. R. Civ. P. 26, Adv. Comm. Notes, 1983 Amendments. Fearing the softening of the 1983 amendments, in 2015 Rule 26(b)(1) was amended by taking the “considerations that bear on proportionality” in Rule 26(b)(2)(C)(iii) and moving them to 26(b)(1) to better define the scope of discovery. Fed. R. Civ. P. 26, Adv. Comm. Notes, 2015 Amendments.
The 2015 changes, however, did not place the burden of “addressing all proportionality considerations” on the party seeking discovery. Id.; National Railroad Passenger Corp., 2017 WL 4770702, at *4. Rather, the burden to prove disproportionality remains with the party resisting discovery. National Railroad Passenger Corp., 2017 WL 4770702, at *4. Amendments to Rule 26(b)(1) did not change the responsibilities of the court and this circuit allows a trial court broad discretion in implementing the terms of discovery, including protective orders, “which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....” Fed. R. Civ. P. 26(c); See Marsee v. U.S. Tobacco Co., 866 F.2d 319 (10th Cir. 1989); see also Fed. R. Civ. P. 26, Adv. Comm. Notes, 2015 Amendments (“Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.”).
In limiting “overdiscovery” courts are hesitant to allow “discovery on discovery.” For example, non-merit based discovery on preservation efforts is considered improper “when the requesting party has not made a threshold showing that spoliation has actually occurred.” In re Jemsek Clinic, P.A., No. 07-03006, 2013 WL 3994666, *7-8 (Bnkrtcy. W.D.N.C. Aug. 2, 2013). (internal citations omitted). Thompson v. U.S. Dept. of Housing and Urban Development sets forth a three prong test to prove spoliation. Thompson v. U.S. Dept. of Housing and Urban Development, 219 F.R.D. 93, 101 (D. Md. 2003). This three prong test includes:
*6 (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of mind;” and (3) the evidence that was destroyed or altered was “relevant” to the claims or defenses of the party that sought the discovery of the spoliated evidence to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.
Id. (internal citations omitted). Martin v. Allstate Ins. Co. and Cunningham v. Std. Fire Ins. Co. similarly held a party was not entitled to discovery on data preservation where the party failed to show the court spoliation was an issue. Martin v. Allstates Ins. Co., 292 F.R.D. 361, 364 (N.D. Tex. 2013); Cunningham v. Std. Fire Ins. Co., No. 07-cv-02538-REB-KLM, 2088 WL 2668301, at *5. Additionally, inquiries into data preservation are generally limited to the periods after a duty to retain arose or when the party could have reasonably anticipated litigation. In re Jemsek Clinic, P.A, 2013 WL 3994666, *7-8.
Where a court does allow data preservation discovery, such inquiry is limited to the facts surrounding preservation efforts. See In re eBay Seller Antitrust Litig., No. 07-cv-1882 JF (RS), 2007 WL 2852364, *2-3 (N.D. Cal. Oct. 2, 2007) (holding while plaintiff may not probe into what the company's attorneys told its employees, plaintiff may discovery what employees were doing to preserve data); Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 619 (D. Colo. 2007) (allowing plaintiff to explore the procedures of preservation efforts); Doe v. District of Columbia, 230 F.R.D. 47, 55 (D.D.C. 2005) (allowing plaintiff to explore the “defendant's policies and procedures of document retention and production.”). Specifically, in Boyington v. Percheron Field Services, LLC., the court found the information was relevant and the plaintiff's established legitimate concerns regarding the opposing party's preservation practices. Boyington v. Percheron Field Services, LLC., 3:14-cv-90, 2016 WL 6068813, *11-12 (D. Pa. Oct. 14, 2016). Plaintiff could therefore discover the “facts surroundingDefendant's preservation efforts.” Id. at 12. The Boyington court further addressed the possibility for these topics to arise in depositions and states “to the extent this issue arises in depositions – Plaintiff's future inquiries should focus on the data-preservation steps themselves, and not the contents of any communications between Defendant's counsel and its employees.”
RULING OF THE COURT
IVS Defendants' deposition topics # 3, 9, 11, 12, 13, and 18 seek to discover information regarding document retention policies involving the Pro-Inspect litigation. Additionally, topics # 16, 17, and 18 inquire into information regarding “hold” notices in the current litigation, Pro-Inspectlitigation, and Infrassure litigation. Plaintiff agrees to produce information pertaining to the “hold” requests pursuant to Boyington v. Percheron Field Services, LLC. Pl.'s Mot. for Prot. Order, ECF No. 216 at 8. Therefore, the main issue for the Court to address is whether the IVS Defendants may conduct depositions on the topics involving the Pro-Inspect litigation. The Court reluctantly grants IVS Defendants' Motion to Compel with respect to these topics and will address each of Plaintiff's arguments in turn.
*7 As previously addressed, Rule 26 of the Federal Rules of Civil Procedureallows broad discovery of relevant information as long as the discovery is proportional to the needs of the case and does not violate a privilege. SeeFed. R. Civ. P. 26(b)(1). Plaintiff argues the Pro-Inspect litigation is not relevant to the present litigation and therefore the information is not discoverable. Pl.'s Mot. for Prot. Order, ECF No. 216 at 3. Plaintiff specifically notes the different unit, the different fact scenario, and the fact Pro-Inspect occurred in 2011. Id. In contrast, IVS Defendants argue the information is relevant because both cases involve spoliation issues and Plaintiff's failure to follow PSM practices. Def.'s Mot. to Compel, ECF No. 217 at 2.
There is no presumption a discovery request is relevant; however, relevance can usually be determined on the request's face. See In re Bank of Am. Wage & Hour Employment Practices Litig., 275 F.R.D. 534, 538 (D. Kan. 2011). Considering the nature of both of the cases, the Court finds the topics are relevant to the present case. Pro-Inspect did involve a different unit and different causation facts; however, document preservation and potential spoliation is an issue present in both. Additionally, while the Pro-Inspect incident occurred in 2011, the Court finds only the two years difference compelling. It is clear IVS Defendants wish to connect spoliation between the two cases and only having two years between the incidences may prove relevant. There is sufficient connection on the issue of spoliation and thus the Court finds the requested information relevant. The Court must emphasize a finding of relevance in terms of discovery does not guarantee this information is admissible at trial. The standard for relevancy at the discovery level is different than admissibility at trial.
Plaintiff also argues even if there is marginal relevance, the request does not outweigh the potential prejudice to Plaintiff nor does it outweigh the potential burden. Pl.'s Mot. for Prot. Order, ECF No. 216 at 5. The Court does not find either of these concerns convincing. Specifically, Plaintiff's claim allowing these deposition topics will re-open discovery in a pending case. Id. Pro-Inspect requires no further action, discovery and the trial are both complete. The litigation only requires a decision from the Court and any discovery in the present case will not affect the Court's decision in Pro-Inspect. Finally, Plaintiff has pursued the present litigation in seeking damages in excess of $119,000,000. With such a large sum for damages, and in weighing the interests of the parties, the Court does not find the potential burden to be in excess.
Plaintiff asserts the deposition topics have the potential to illicit information protected by attorney-client privilege. Id. The mere potential deposition questions may involve protected information is insufficient reasoning in disallowing the deposition topics. Such a decision by the Court could have potentially negative consequences in future decisions where a mere connection to attorney-client privilege could suppress a deposition. Discovery is meant to be broad within reason of proportionality and issuing a protective order on a deposition topic because it may involve attorney-client privilege is counter to the purpose of discovery.
Further, IVS Defendants specifically stress they are only seeking information involving the facts surrounding document preservation and retention. Def.'s Mot. to Compel, ECF No. 217 at 6. Review of the deposition topics additionally reveal IVS Defendants only seek facts. They seek dates, physical location of documents, users who have access, general description of the data, and any back-up of the data. Pl.'s Resp. to Def.'s Depo. Notice, ECF No. 216-2. Such information surrounding the document preservation is not protected by attorney-client privilege and is therefore discoverable.
*8 The most concerning area for the Court's consideration is Plaintiff's argument such information is not discoverable as it is non-merit discovery on discovery. Generally, courts are reluctant to allow such discovery unless there is a threshold showing spoliation has occurred. See In re Jemsek Clinic, P.A, 2013 WL 3994666, *7-8. A key issue in the In re Jemsek Clinic, P.A. case involved the plaintiff seeking information in other lawsuits three years prior to litigation was likely between the involved parties. Id.
The difference is the court in In re Jemsek found the other lawsuit irrelevant. Id. In the present case, the Court finds there is sufficient connection between Pro-Inspect and the present litigation which makes inquiry into those topics relevant. Other cases cited by Plaintiff include Cunningham v. Std. Fire Ins. Co. and Martin v. Allstate Ins. Co.. Pl.'s Mot. for Prot. Order, ECF No. 216 at 6. In both of these cases, there was little indication of spoliation. (E.g., Cunningham, 2008 WL 2668301, at *5 (holding plaintiff's general assertion he believed there were more emails than those produced was insufficient to allow discovery of defendant's document preservation); Martin, 292 F.R.D. at 364 (holding there was no evidence to support the argument defendants may have additional documents)).
In the present case, the Court finds there is more than mere suggestion of spoliation and ultimately finds IVS Defendants argument convincing. IVS Defendants cite to such evidence as the note cards and flipcharts, the documents of Randy Cunningham, and the valve actuators. Def.'s Mot. to Compel, ECF No. 217 at 6. Moreover, through continued reflection of past pleadings, the Court finds this line of discovery necessary in order to fully determine the potential existence or non-existence of spoliation. The Court makes this finding reluctantly; however, the nature of the case necessitates such discovery.
The final issue to address is the “hold” requests. In their brief, IVS Defendants not only requested to compel the deposition topics regarding the “hold” requests, they also seek the production of those “hold” requests themselves and the communications regarding such requests. With respect to producing the “hold” requests and the 164 communications regarding these notices, the Court agrees with Plaintiff, the issue of producing the “hold” requests was not discussed in either of the telephonic discovery conferences. Pursuant to the Court's General Order Regarding Discovery Motions, parties are to strictly comply with Local Rule 7.1(b)(1)(A). Admin. Gen. Order 2012-04 at 1 (Jan. 2014). Parties are to confer and if they are unable to settle on the issues they “shall jointly contact chambers prior to filing any written discovery motion.” Id. There is no indication IVS Defendants conferred with Plaintiff regarding these withheld communications nor did IVS Defendants receive permission from the Court to file a written discovery motion for the topic. Therefore, written pleadings on the production of these withheld communications are improper at this time. The Court will not issue an opinion on the request and will instead focus upon the deposition topics relating to the “hold” requests.
Where a party makes an adequate showing hold letters include material protected under the attorney-client privilege or work-product doctrine, the hold letters are generally not discoverable. Major Tours, Inc. v. Colorel, No. 05-cv-3091 (JBS/JS), 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009). A concern in compelling the production of these “hold” requests is it “may dissuade other businesses from issuing such instructions in the event of litigation.” Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116, 1123 (N.D. Ga. 2007). However, the information surrounding the “hold” requests and the preservation efforts are discoverable. See Boyington, 2016 WL 6068813 at *9. This may include the production of such information as to who received the “hold” requests, the dates those notices were issued, and the categories of data targeted for preservation. Id.
*9 IVS Defendants' Rule 30(b)(6) Deposition Notice requests information on “[a]ll actions taken by Sinclair” for the “hold” notices in the present litigation as well as “the dates of each Document Retention Hold, the scope of each Document Retention Hold, the actions taken by Sinclair following the issuance of each Document Retention Hold to effect the preservation of Documents, and the date(s) any such actions were taken” in both Pro-Inspect and Infrassure. Pl.'s Resp. to Def.'s Depo. Notice, ECF No. 216-2 (emphasis added). IVS Defendants in these deposition topics are not seeking potentially privileged communications but rather the factssurrounding the “hold” requests. IVS Defendants are entitled to seek facts regarding who received notices, when the notices were issued, what actions were taken and when, and what categories the notices covered, or the scope of the notices. Finding the information regarding Pro-Inspectdiscoverable, the Court's holding applies to “hold” requests in the present lititgation, Infrassure and Pro-Inspect. Even though these deposition topics are discoverable, IVS defendants should be careful to avoid such questions that may implicate communications between Plaintiff's employees and counsel.
CONCLUSION
The Pro-Inspect litigation and the document preservation actions are relevant to the present case. The Court shares concern with the Plaintiff regarding allowing discovery on discovery. However, the present situation is distinguishable from the cases Plaintiff cited. The Court finds there is sufficient evidence that raises the concern of spoliation and the IVS Defendants have met the threshold showing. The nature of discovery is generally broad as long as relevant and proportional, and while this information is discoverable at this juncture in the case, there is no guarantee the information discovered is admissible at trial.
NOW, THEREFORE, IT IS ORDERED IVS Defendants' Motion to Compel [Doc. 217] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED Plaintiff's Motion for a Protective Order [Doc. 216] is DENIED.
IT IS FURTHER ORDERED parties shall conduct deposition on all topics (#1-29) listed in IVS Defendants' October 6, 2017 Rule 30(b)(6) Deposition Notice.
IT IS FURTHER ORDERED the depositions on the topics (#1-29) will occur during the week of November 6, 2017.
Dated this 31st day of October, 2017
IVS Defendants include the named Defendants, Instrument & Valve Services Company, Fisher Controls International LLC, and Emerson Process Management LLLP. The Order uses the terminology IVS Defendants to remain consistent with the Motion to Compel [Doc. 217].
CB&I Defendants refer to named Defendants A&B Builders, Ltd., Matrix Engineering, Ltd., and Howe-Baker Engineers, Ltd. as specified in CB&I Defendants Response Brief in Support of IVS Defendants' Motion to Compel [Doc. 223].
Applied Defendants refer to named Defendants Applied Control Equipment, LLC and Applied Control Equipment, LLLP as specified in Applied Defendants Notice of Joinder [Doc. 225].