Elvis Presley Enters., Inc. v. City of Memphis
Elvis Presley Enters., Inc. v. City of Memphis
2020 WL 4283276 (W.D. Tenn. 2020)
March 6, 2020
Vescovo, Diane K., United States Magistrate Judge
Summary
The court ordered the City to conduct a manual search for and produce all non-identical correspondence and hard copies of memoranda, notes, or other documents created after July 1, 2017 but on or before January 6, 2020. The court also ordered the City to search Bruce McMullen's cell phone(s) for text messages responsive to RFP No. 12. The City's supplemental production was due on or before March 18, 2020, and the court found that sanctions were not appropriate.
Additional Decisions
ELVIS PRESLEY ENTERPRISES, INC., EPPF, LLC and GUESTHOUSE AT GRACELAND, LLC, Plaintiffs,
v.
CITY OF MEMPHIS, TENNESSEE, Defendant
v.
CITY OF MEMPHIS, TENNESSEE, Defendant
No. 2:18-cv-02718-SHM-dkv
United States District Court, W.D. Tennessee, Western Division
Filed March 06, 2020
Counsel
Mary Roxana Rudolph, Spicer Rudstrom PLLC, Clarence A. Wilbon, James Bennett Fox, Jr., Adams and Reese LLP, Memphis, TN, for Plaintiffs.Carl I. Jacobson, John J. Cook, Jonathan P. Lakey, Kelly Lynn Hagy, Walk Cook & Lakey, PLC, Memphis, TN, for Defendant.
Vescovo, Diane K., United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION
*1 Before the court is the motion, filed on January 31, 2020, by the plaintiffs, Elvis Presley Enterprises, Inc., EPPF, LLC, and Guesthouse at Graceland, LLC (collectively “EPE”), to compel the defendant, City of Memphis, Tennessee (the “City”), to produce documents in response to EPE's First Requests for Production (“RFP”). (Pls.' Mot. to Compel, ECF No. 137.) The City filed a response in opposition on February 14, 2020. (Def.'s Resp., ECF No. 176.) EPE filed a reply to the City's response on February 21, 2020. (Pls.' Reply, ECF No. 190.) The motion has been referred to the United States Magistrate Judge for determination. (Order of Reference, ECF No. 154.)
A hearing was held on March 2, 2020. Clarence Wilbon and Ben Fox, attorneys for EPE, and Jonathan Lakey and Carl Jacobson, attorneys for the City were present. Robert Spence and Jerrick Murrell, attorneys for nonparty Economic Growth Engine Industrial Development Board (“EDGE”), were also present.
EPE served the City with its first set of RFPs in July 2019. The City timely responded to EPE's RFPs in September 2019. (See Pls.' Mot. to Compel, Ex. 1, ECF No. 137-1.) In the present motion to compel, eleven of the City's responses to EPE's RFPs are at issue and will be grouped together for the purposes of analysis as follows: (i) RFP Nos. 1 and 2; (ii) RFP Nos. 3 and 9; (iii) RFP Nos. 4 and 5; (iv) RFP Nos. 11 and 16; (v) RFP No. 12; and (vi) RFP Nos. 17 and 20.
Based on the written and oral arguments of counsel and the relevant correspondence between the parties, the court finds that the parties had a meeting of the minds and reached a final agreement as of January 6, 2020 regarding an electronic search protocol as set forth in the document entitled Electronic Search Parameters—1/6/20 (the “Electronic Search Protocol Agreement”).[1] The Electronic Search Protocol Agreement will be enforced according to its terms. See Warsco v. Moran Food, Inc. (In re DFI Proceeds, Inc.), 441 B.R. 914, 917 (Bankr. N.D. Ind. 2011)(enforcing parties' stipulations to discovery matters)(citing Fed. R. Civ. P. 29(b)); Widevine Techs., Inc. v. Verimatrix, Inc., 2009 WL 4884397, at *2 (E.D. Tex. Dec. 10, 2009)(denying motion to compel and enforcing parties' stipulation regarding email production). No further electronic search shall be conducted except as to text messages on the cell phones(s) of Bruce McMullen as provided herein.
The court further finds the parties did not reach an agreement as to whether a manual search of physical files for hard copies of documents would also be conducted in addition to the electronic search. As to the specific RFPs at issue in this motion, for the reasons stated on the record at the hearing, it is hereby ordered:
1) EPE's motion to compel as to RFP Nos. 1 and 2 is denied. The court finds sufficient the City's production as to RFP Nos. 1 and 2. No further search is required.
*2 2) EPE's motion to compel as to RFP Nos. 3 and 9 is granted in part. As to RFP Nos. 3 and 9, the City is ordered to conduct a manual search for and produce all non-identical correspondence and hard copies of memoranda, notes, or other documents — created after July 1, 2017 but on or before January 6, 2020 — of the City Representative and the record custodians identified Paragraphs 1 & 2 of the Electronic Search Protocol Agreement. The City's manual search shall be governed by the agreed-upon search parameters set forth in the Electronic Search Protocol Agreement.
3) EPE's motion to compel as to RFP Nos. 4 and 5 is denied without prejudice. The court finds based on representations of counsel that a manual search for documents responsive to RFP Nos. 4 and 5 was already conducted by the City. Counsel for EPE may ask deponents whether, after July 1, 2017 but on or before January 6, 2020, they obtained a written statement regarding “the Retaliatory Act,” which is defined by EPE in the RFP as “the City's contact with OPD to delay consideration of EPE's Development Application, including Bruce McMullen's October 1, 2018 contact with the OPD which resulted in the OPD tabling consideration of the Development Application indefinitely.” (Def.'s Resp., Ex. 1, ECF 176-1.) Any deponent that answers in the affirmative shall produce the written statement within seven days of the deposition. If any deponent refuses to produce the written statement, EPE may renew its motion to compel within ten days after the deposition.
4) EPE's motion to compel as to RFP Nos. 11 and 16 is granted in part. As to RFP Nos. 11 and 16, the City is ordered to conduct a manual search for and produce all non-identical correspondence and hard copies of memoranda, notes, or other documents — created after July 1, 2017 but on or before January 6, 2020 — of the record custodians identified in the Electronic Search Protocol Agreement. The City's manual search shall be governed by the agreed-upon search parameters set forth in the Electronic Search Protocol Agreement.
5) EPE's motion to compel as to RFP No. 12 is granted in part. The City is ordered to search Bruce McMullen's cell phone(s) for text messages responsive to RFP No. 12. The City shall conduct the search and produce in hard copy form all responsive text messages created after July 1, 2017 but on or before January 19, 2020. Only counsel for the City may search Bruce McMullen's phone for text messages. No third-party searches are permitted. The City's search shall be governed by the agreed-upon search parameters set forth in the Electronic Search Protocol Agreement.
6) EPE's motion to compel as to RFP Nos. 17 and 20 is denied. The court finds sufficient the City's production as to RFP Nos. 17 and 20. No further search is required.
The City's supplemental production is due on or before March 18, 2020. If EPE deems that the City's responses are insufficient, after first meeting and conferring with the City in an attempt to resolve any dispute, any motion to compel must be filed by EPE within 14 days after service of the City's responses to the discovery requests. Sanctions are not appropriate. Each party shall bear its own costs and attorney fees.
IT IS SO ORDERED this 6th day of March, 2020.
Footnotes
The City attached a copy of the Electronic Search Protocol Agreement to its response in opposition to EPE's motion to compel. (See Def.'s Resp., Ex. 7, ECF No. 176-7.) The Electronic Search Protocol Agreement is attached to this order for ease of reference.