*1 This matter is before the Court on Plaintiff's Motion to Compel discovery, which primarily concerns Defendants' objections to numerous requests for production [Doc. 78]. Having considered the Motion, Response, and Reply, the Court denies Plaintiff's Motion to Compel in its entirety. In addition to being unduly delayed without any persuasive justification, the Court finds Plaintiff has been in possession of many of the requested documents since the 2015 state-court action, Plaintiff utilized many of these documents in its Initial Disclosures, and many of Defendants' objections must be sustained under the law.

This case centers around a contract dispute. In 2003, Wold Oil Properties, LLC (WOP) and Black Diamond Energy entered into a contract known as the Farmout Agreement where WOP agreed to convey 25% of its interest in tracts of land that develop and operate wells producing coal bed methane gas in Wyoming (“Contract Area”). The Contract Area was divided into two areas with two separate Plans of Development (POD), designated as POD I and POD II. Black Diamond Energy (BDE) assigned its rights and interests under the Farmout Agreement to Black Diamond Energy of Delaware (BDED). Between 2003–2008, WOP allegedly failed to make earning assignments as required under the Farmout Agreement. In 2008, WOP and BDED entered into a Letter Agreement that provided WOP would pay outstanding joint interests bills, sign a Joint Operating Agreement (JOA), and make assignments for an additional 25% that BDE attained throughout the contract term. WOP and BDED eventually entered into a JOA. Subsequently, BDED assigned its interests in the Contract Area to Plaintiff Peter D. Holdings, LLC, and WOP assigned its interests to Defendant Chipcore.

On February 25, 2015, Plaintiff filed suit in state court seeking redress for Defendants' alleged failure to pay their share of expenses and failure to reimburse Plaintiff for materials and inventory. Both claims were expressly limited to Defendants' conduct with respect to the POD II wells. The state-court action was resolved after a three-day bench trial.

Plaintiff subsequently filed suit in this Court in December 2017, alleging claims of breach of contract, accounting, rescission, unjust interference, tortious interference, and unjust enrichment. Plaintiff later added claims for specific performance, conversion, and unjust interference. The present action concerns only the wells and leases in POD I.

Because the present Motion concerns a discovery dispute, a summary of the numerous deadlines governing this proceeding is necessary to understand the issues. When Defendants served their Initial Disclosures, they listed four documents they would use to support their claims or defenses: the Complaint, the Amended Complaint, the Notice of Dismissal of a Party, and the Order and Judgment from the state-court action. In contrast, Plaintiff's Initial Disclosures included sixty-five listed documents that spanned 1,036 pages. Notably, all 1,036 pages are documents that were labeled as exhibits in the state-court action.

*2 On March 20, 2019, Plaintiff served Defendants with fourteen requests for production. In April, WOP responded to Plaintiff's seventh and fourteenth requests with sixty-one pages of documents, but objected to the other requests. In May, Chipcore responded with objections and no documents. Plaintiff alleges that “Chipcore has produced no documents to date.” (ECF No. 79, at 3). On June 18, 2019, Plaintiff's counsel sent Defendants' counsel a letter detailing its stance on Defendants' objections to the requests for production.

The next day, Defendants filed a Motion for Summary Judgement. (ECF No. 49). On August 30, 2019, while the Motion for Summary Judgment was still pending, Plaintiff filed a Motion for an Extension of Time seeking to extend the discovery cutoff deadline, arguing that conducting discovery at this stage would be wasteful in light of the pending Motion to Dismiss. The Court notes, however, that a motion to stay discovery pending the determination of the dispositive motion was never filed.

The original discovery deadline of September 9, 2019, expired while the Motion for Summary Judgment was still pending. On September 16, 2019, this Court granted in part and denied in part Defendants' Motion for Summary Judgment, leaving claims for breach of contract, specific performance, accounting, and rescission to be resolved at a five-day bench trial set to begin on November 18, 2019. (ECF No. 71). On September 30, the Court held an informal, telephonic status conference to address Plaintiff's Motion for Extension of Time. (ECF Nos. 76, 77). After hearing from both parties as to Plaintiff's outstanding discovery requests, the Court denied Plaintiff's Motion for an Extension of Time and ordered the parties to confer as to the scope and method of the requests and to attempt to come to a meaningful resolution. (ECF No. 77). The parties were unable to resolve the remaining disputes, which led to Plaintiff filing the present Motion to Compel on October 4, 2019.

Under Rule 26, a party is entitled to discover “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1). Within the scope of Rule 26(b), a party may serve requests to produce designated documents that are within an opposing party's possession, custody, or control. FED. R. CIV. P. 34(a)(1)(A). The party responding to the requests for production must do so within thirty days, stating whether the documents will be produced, an inspection will be permitted, or whether there are objections to the requests. FED. R. CIV. P. 34(b)(2)(A). When a party fails to produce the documents requested under Rule 34, the requesting party may move for an order compelling discovery FED. R. CIV. P. 37. “Control of discovery is entrusted to the sound discretion of the trial courts, and a denial of a motion to compel discovery will not be disturbed absent abuse of discretion.” Martinez v. Schock Transfer & Warehouse Co., Inc., 789 F. 2d 848, 850 (10th Cir. 1986).

Plaintiff's Motion seeks an Order compelling Defendants to produce documents contained in the first, second, third, fourth, fifth, sixth, eighth, and tenth requests for production.[1] Defendants request Plaintiff's Motion be denied as untimely and because its objections to the requests were proper.

*3 Defendants first contend that Plaintiff's Motion be denied as untimely. Because the Federal Rules do not impose a deadline for motions to compel, the district courts must exercise discretion when deciding whether a motion is “too tardy to be considered.” Breen v. Black, No. 15-cv-168-NDF, 2016 WL 4257438, at *5 (D. Wyo. July 22, 2016) (citing Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d 673, 682 (10th Cir. 2012)). “While there is not a ‘hard-and-fast rule’ preventing a party from filing a motion after the close of discovery, courts generally consider the motion if the movant offers an acceptable explanation for the motion's tardiness.” Breen, 2016 WL 4257438, at *5 (internal quotations omitted). According to Plaintiff's Reply, the Motion is delayed because counsel decided to stay discovery while the motion for summary judgment was pending. To be fair, courts have recognized that discovery may be inappropriate when a fully dispositive motion is pending. See, e.g., Martinez v. Rittenhouse, No. 07-cv-02087-WYD-KLM, 2008 WL 1883596, at *1 (D. Colo. Apr. 25, 2008). But this Court never made such a determination in this case. Instead, Plaintiff allowed the September 9, 2019, discovery deadline to lapse despite becoming aware of the allegedly inadequate discovery responses in April and May of 2019.

The Court finds that the untimely nature of Plaintiff's Motion, coupled with its unpersuasive justification for his delay, requires the Court to deny its Motion. Indeed, granting Plaintiff's Motion to Compel at this stage “would undoubtedly necessitate abandoning the current trial date of [November 18, 2019], something the Court is unwilling to do on the basis of Plaintiff's inexplicable failure to seek resolution of the discovery matter by the Court in the many months before the discovery deadline.” James v. Patton, No. 06CV52JHP, 2007 WL 404744, at *3 (E.D. Okla. Jan. 31, 2007); Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999) (“[T]o require additional discovery after the court's decision on [Defendant's] motion for summary judgment, and on the eve of trial would cause a delay which the court finds inappropriate and unnecessary.”); See, e.g., Norton v. City of Marietta, Okla., 432 F.3d 1145, 1156 (10th Cir. 2005) (affirming denial of motion to compel filed after the discovery deadline).

This Court might be persuaded to excuse Plaintiff's lack of diligence in bringing the Motion if it were necessary to avoid some injustice but, after careful consideration of the merits of Plaintiff's Motion, the Court finds that no significant prejudice is present here. See Lane v. Page, 273 F.R.D. 665, 667 (D. N.M. 2011). The merits of each dispute will be addressed in turn.

The first and second requests ask Defendants to produce all well, lease, and lease acquisition files related to wells and leases in the Contract Area during the Covered Period. WOP's response stated the requested documents were in Chipcore's possession, not WOP's. Chipcore response stated the well and lease files would be made available for an on-site inspection and copying by Plaintiff, largely because the files were not available in electronic format. Plaintiff rejected the offer to inspect the documents, insisting instead that the documents be produced electronically.

Rule 34 permits requests for production of documents that the responding party has in its possession, custody, or control. FED. R. CIV. P. 34(a)(1). Because WOP does not have in its possession, custody, or control documents that are responsive to the first and second requests, the Court finds that it would be improper to compel WOP to respond further. Therefore, the Court only considers whether Chipcore must be compelled in this regard.

The federal rules contemplate two methods of production: a responding party may either produce the documents as they are kept in the usual course of business or they must organize and label them to correspond to the categories in the request. FED. R. CIV. P. 34(b)(2)(E)(i). The key to the dichotomy is that, absent specification in a parties' request, a responding party may “choose the form of their response.” Hydro Engineering, Inc. v. Petter Investments, Inc., No. 2:11-cv-00139-RJS-EJF, 2013 WL 6621033, at *2 (D. Utah Dec. 16, 2013). The purpose of the “usual course of business” option “is to place the burden of research on the party seeking the information, instead of requiring the responding party to conduct a burdensome search of its own records.” Nat'l Jewish Health v. WebMD Health Servs. Grp. Inc., 305 F.R.D. 247, 255 (D. Colo. 2014).

*4 Plaintiff's first and second requests do not specifically request for the documents to be produced electronically. Therefore, Chipcore chose to permit Plaintiff to inspect and copy the requested, hard-copy documents, which is the format in which the documents are kept in the usual course of Chipcore's business. Once a party produces or permits inspection of documents as they are kept in the usual course of business, that party “has no further duty under Rule 34 or otherwise ... to organize and label the documents.” Nat'l Jewish Health, 305 F.R.D. at 255. Nevertheless, in an attempt to resolve this discovery dispute prior to trial, Chipcore recently scanned all fifty-seven well and lease files for POD I into electronic format and sent them to Plaintiff's Counsel via email with an attached ShareFile link. Thus, the Court finds that WOP and Chipcore have properly responded to Plaintiff's first and second requests for production and denies Plaintiff's Motion to compel further discovery.

The third and fourth requests seek documents relating to revenue and expenses incurred during the operation of wells in the Contract Area. These requests seem to relate to Plaintiff's accounting claim, wherein Plaintiff seeks to determine the amount of revenue it is entitled to for the production of wells in POD I. Notably, Defendants' Motion for Summary Judgment argued, in relevant part, that the JOA precluded Plaintiff's contractual right to an accounting. This Court found Defendants' argument to be plainly erroneous given Wyoming precedent recognizing an accounting as an available equitable remedy. See Y-O Investments, Inc. v. Emken, 2006 WY 112, ¶ 9, 142 P.3d 1127, 1130 (Wyo. 2006).

Not surprisingly, Defendants objected to Plaintiff's requests for documents relating to the accounting claim on a similar basis, arguing that Plaintiff is not entitled to production of these documents because of provisions in the JOA. Defendants argue alternatively that Plaintiff is only entitled to documents from 2017–2019 because a provision that limits audits of accounts and records to two years preceding any requested audit. (See ECF No. 81, at 7). Generally, the proper scope of discovery is “any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1). Because this Court found Defendants' arguments regarding the contractual nature of the claim to be plainly erroneous, the Court would, under other circumstances, find discovery on this subject matter to be relevant to Plaintiff's accounting claim. However, when considering whether discovery is proportional to the needs of the case, the Court must consider, among other things, the parties' relative access to the relevant information and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id.

The Court finds that ordering further discovery in response to Plaintiff's third and fourth requests for production would be disproportional to the needs of the case. Since the Motion was filed, Chipcore emailed Plaintiff's counsel all relevant monthly and quarterly payout statements from January 2017–August 2019. (ECF No. 81, at 7 n.2). Plaintiff remains unsatisfied, however, in large part because Plaintiff already has the statements. According to Plaintiff, the third and fourth requests were seeking all of the invoices, internal reports, compiled data, and processed data created in preparation of the payout statements, alleging that the statements can be altered by “unscrupulous operators [who] cheat on the revenue side[.]” (ECF No. 87, at 4 n.3). But Plaintiff has failed to offer evidence or argument that the operators have cheated or otherwise acted dishonestly in this case. In fact, Plaintiff admits that such behavior is “less common because there are indeed public production records that serve at least as a check on such dishonesty.” Id. Furthermore, Plaintiff has already utilized various public records to determine the gross revenue of operations for the wells at issue and has gone further to include this calculation in its Proposed Stipulations of Fact. (ECF No. 82, at 7).

*5 In exercising its discretion over the course of discovery, the Court finds that Plaintiff's possession of the revenue statements and already-calculated analysis regarding the gross revenue of operations at issue illustrates that, at the very least, the parties have relatively equal access to the information sought and that the burden or expensive of further discovery on these issues outweighs its likely benefit. Proportionality notwithstanding, these facts demonstrate that no significant prejudice or injustice will result by denying Plaintiff's Motion to Compel in this regard. See Lane, 273 F.R.D. at 667. Thus, the Motion is denied.

The Fifth Request for Production seeks all documents relating to the historical production of wells in the Contract Area. Defendants argue that they are under no obligation to produce the documents because they are publicly available to Plaintiff on the Wyoming Oil and Gas Conservation Commission (WOGCC) website. Plaintiff disagrees and asserts that it is entitled to compare the public record with the records produced.

“It is well established that discovery need not be required of documents of public record which are equally accessible to all parties.” McKellips v. Kumo Tire Co., Inc., 305 F.R.D. 655, 680 (D. Kan. 2015) (stating that if Defendant had responsive documents that were publicly available and equally accessible to Plaintiffs, then Defendant need not produce those documents and may instead refer Plaintiffs to the documents). However, even if information is publicly available, the information may still be discoverable if the information does not appear to be “equally accessible to all parties[.]” RTC Mortg. Trust 1994-S3 by Trotter Kent Inc. v. Guadalupe Plaza, 918 F. Supp. 1441, 1452 (D. N.M. 1996).

In Ayyad v. Holder, the District of Colorado considered whether certain documents were “equally accessible to all parties.” No. 05-cv-02342-WYD-MJW, 2014 WL 4084165, at*1 (D. Colo. Aug. 19, 2014). The Defendant in Ayyad sought to strike from Plaintiff's designated exhibit list a statement submitted to the Senate Judiciary Committee, a governmental report submitted to the United Nations General Assembly, and an Amnesty International Report, arguing that Plaintiff failed to disclose these exhibits under Rule 26. Id. at *1. The court found that all three documents were equally available to both parties denied defendant's motion because of the general principal that discovery is not required of such documents. Id.

This Court finds that the documents at issue in this matter are similar to the governmental reports and documents in Ayyad. Indeed, the WOGCC is the administrative agency that governs oil and gas operations in the State. Documents detailing the historical production of wells, including the wells at issue, are available online through the WOGCC's website. Thus, the requested documents are both publicly available and equally accessible to both parties, and further discovery on the issue is not required.

In support of its argument, Plaintiff cites Jackson v. W. Va. Univ. Hospitals, Inc., 2011 WL 1831591, at *3-4 (N. D. W. Va. May 12, 2011). The Court finds that this case is distinguishable and therefore declines to apply it to the facts at hand. In Jackson, the requesting party would have had to file a Freedom of Information Act (FOIA) request to obtain the publicly-available documents. See id. Filing a FOIA request for permission to inspect and copy government documents is drastically different than simply downloading already-available and readily-viewable documents from a website, which is the case here. Therefore, the Court denies Plaintiff's Motion to compel further discovery of its fifth request for production.

*6 The sixth, eighth, and tenth requests are considered together because Defendants objected on the same basis for all three requests. The sixth request relates to forced pooling, the eighth request relates to title opinions, and the tenth request generally relates to the various agreements governing the relationship at issue. Among other things, Defendants objected on the basis that Plaintiff is already in possession of any responsive documents and therefore is under no obligation to produce any responsive documents.

The fact that a requesting party is already in possession of requested documents is not necessarily a sufficient reason to deny discovery. Cook v. Rockwell Int'l Corp., 161 F.R.D. 103, 105 (D. Colo. 1995). But in this case, the Court finds that it is. Defendants' objections are thoroughly supported and evidenced by the fact that the responsive documents Plaintiff seeks are listed in its Initial Disclosures. In fact, Defendants recently identified every responsive document by the state-court bates numbers and Plaintiff's Initial Disclosure exhibit numbers. The previous state-court litigation in this matter, coupled with Plaintiff's extensive initial disclosures detailing the precise documents that it is now presently seeking less than a month before trial, compels the Court to find that, under these circumstances, Defendants' objections must stand. Therefore, Plaintiff's Motion is denied.

Plaintiff's Motion is unduly delayed and, if granted, would require the Court to vacate the current trial date of November 18, 2019, and re-open discovery to allow for further production of documents and possible depositions. Plaintiff has known of the alleged deficiencies since April and May 2019 but chose to wait to file the present Motion well after the close of discovery and just weeks before trial. Thus, the Court finds Plaintiff's Motion is untimely. Perhaps more importantly, however, the Court finds that no significant prejudice or injustice will result from denying the Motion because Plaintiff is already in possession of the requested documents and has been since February 2019, as evidenced by the inclusion of the documents in Plaintiff's Initial Disclosures. Even still, the Court finds Defendants' objections to the requests for production are supported by applicable law and must stand. Therefore, Plaintiff's Motion to Compel [Doc. 78] is DENIED.

NOW, THEREFORE, IT IS ORDERED Plaintiff's Motion to Compel Production of Documents [Doc. 78] is DENIED.

DATED this 23rd day of October, 2019.