Daycab Co. v. Praire Tech., LLC
Daycab Co. v. Praire Tech., LLC
2020 WL 12846847 (E.D. Tenn. 2020)
November 16, 2020

Poplin, Debra C.,  United States Magistrate Judge

Cloud Computing
Possession Custody Control
Proportionality
Failure to Produce
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Summary
The court found that the defendants had exceeded the 25 interrogatory limit and had objected to certain interrogatories on the basis of relevance. The court ordered the defendants to supplement their responses to identify any ESI to which they have access, and warned that failure to abide by the order may result in sanctions.
Additional Decisions
DAYCAB COMPANY, INC., Plaintiff,
v.
PRAIRIE TECHNOLOGY, LLC, et al., Defendantsa
No. 3:20-CV-63-TRM-DCP
United States District Court, E.D. Tennessee, Northern Division
Filed November 16, 2020

Counsel

Donald K. Vowell, Vowell and Associates, Knoxville, TN, for Plaintiff.
James R. McKoon, McLean A. Stohler, McKoon, Williams, Atchley & Stanley, PLLC, Chattanooga, TN, Stephen C. Landon, Cadwell Sanford Deibert & Garry LLP, Sioux Falls, SD, Seth Lee Hudson, Nexsen Pruet, PLLC, Charlotte, NC, for Defendants Prairie Technology, LLC, Big Truck Parts, LLC.
James R. McKoon, McLean A. Stohler, McKoon, Williams, Atchley & Stanley, PLLC, Chattanooga, TN, Stephen C. Landon, Cadwell Sanford Deibert & Garry LLP, Sioux Falls, SD, for Defendants William R. Osman, Wanda Osman.
Poplin, Debra C., United States Magistrate Judge

MEMORANDUM AND ORDER

*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
 
This matter is before the Court on Plaintiffs' Motion to Compel Discovery. [Doc. 30]. Plaintiff moves the Court to require Defendants to respond, or clarify their responses, as to various discovery requests. Defendants have filed a Response in opposition [Doc. 40], and Plaintiff has filed its Reply. [Doc. 46]. The matter is now ripe for adjudication.
 
The Court notes that discovery in this matter is currently limited to the question of jurisdiction. [Doc. 23]. The Court will address each of the discovery requests at issue in turn, but before doing so, briefly considers the permissible scope of discovery.
 
“District courts have broad discretion over docket control and the discovery process.” Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citations omitted). “ ‘It is well established that the scope of discovery is within the sound discretion of the trial court.’ ” Id. (quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)). Federal Rule of Civil Procedure 26(b) identifies the acceptable scope of discovery:
Parties may obtain discovery regarding any nonprivileged 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). With these standards in mind, the Court turns to the discovery responses in dispute.
 
I. Excess Interrogatories
Initially, the Court notes that Defendants have objected to Interrogatories 16 through 26 of Plaintiff's Second Set of Interrogatories because they exceed the 25 interrogatory limit imposed by the Federal Rules of Civil Procedure. Plaintiff acknowledges that an objection to excess interrogatories was made, but fails to explain why it did not obtain prior consent of the Court to exceed the limit, nor otherwise address the excess interrogatory objection. [See Doc. 30 at 3 (“Defendants raised several objections... including the objection of asking more interrogatories than allowed by Rule 33”)].
 
The Federal Rules provide, in pertinent part, that “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1). A court has discretion to permit additional interrogatories in accordance with Fed. R. Civ. P. 26(b)(2). Id. However, Fed. R. Civ. P. 26(b)(2)(C) requires a court to limit discovery if (1) the requested discovery is unreasonably cumulative or duplicative or can be obtained from a more convenient or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the information sought; or (3) the burden or expense outweighs the likely benefit of the discovery. Leave to serve additional interrogatories has been denied where the requesting party failed to make “a particularized showing why the additional discovery is necessary.” King v. Butler Mfg. Co., No. 07-1165, 2008 U.S. Dist. LEXIS 64925, at *2 (W.D. Tenn. July 30, 2008).
 
*2 In this instance, Plaintiff has not filed a motion seeking to exceed the 25 interrogatory limit, nor is there any evidence in the record that Defendants stipulated to an increase in the number of interrogatories. In the absence of permission to exceed the 25 interrogatory limit, the Court finds that Defendants' objections as to Interrogatories 16 through 26 because of excess interrogatories must be sustained. With those objections sustained, the Court turns to the Interrogatories preceding Interrogatory #16.
 
II. Email and Website Archives
In many of the interrogatory responses at issue, Defendants state that they do not have access or control to their Email or website archives, which are hosted by their third party IT provider Sandhills Cloud (“Sandhills”). The Court can envision a circumstance where, for example, a Gmail user could permanently delete a message from his or her email, but a copy might still be preserved on Gmail's servers, which are not within the control of the actual user. However, that same user would still have access to any emails still available through the user's Gmail account (emails which have not been permanently deleted), even though the user does not own or control the Gmail servers. To the extent that Defendants contend that they are not required to search still existing emails or other documents which they do have access to simply because the email/documents are hosted by Sandhills, Defendants have offered no legal basis for such an assertion, and the Court rejects such an argument.
 
The Court notes that Plaintiff subsequently directly subpoenaed Sandhills. Sandhills stated that it had no responsive documents with respect to Interrogatories #7 and #8. With respect to Interrogatories #10, #11, #13, #14, Sandhills stated that any responsive documents, if they existed, would be found on backup tapes, and that it would be labor intensive to extract information from those tapes. Given that Sandhills is not currently before the Court, the Court does not address the issue of compelling Sandhills to produce documents from its backup tapes.
 
III. Tennessee Customers
Several of Defendants' objections arise from the fact that discovery is currently limited to the issue of jurisdiction, and that interrogatories seeking information relating to non-Tennessee customers would not currently be relevant. The Court agrees. In addressing the remaining Interrogatories, any supplemental responses Defendants are required to make shall be limited to those which would establish a connection with Tennessee, such as customers or potential customers who live in Tennessee.
 
IV. Interrogatory #7
This request seeks information relating to the previous versions of Defendants' websites, including the ability to make or place orders through the website. Defendants answered in part, stating that no products were sold to Tennessee customers through the website.
 
Defendants do not explicitly state that there are no responsive emails or other documents in the files to which they do have access. And while Defendants state that they did not sell any products to Tennessee customers through the website, there could conceivably exist responsive documents regardless of the fact that no Tennessee sale were made, including, but not limited to, versions of the website targeted at Tennessee customers or potential customers. Accordingly, Defendants are DIRECTED to supplement their responses to identify any responsive documents to which they have access. If no such documents exist, Defendants' responses should so state.
 
V. Interrogatory #8
*3 This request seeks information regarding whether Defendants' websites ever allowed customers to order products through the website. Defendants answered in part, stating that no products were sold to Tennessee customers through the website.
 
As with Interrogatory #7, the Court finds that even though no sales were made to Tennessee customers, there still might be other responsive documents relating to potential Tennessee customers to which Defendants might have access. Accordingly, Defendants are DIRECTED to supplement their responses to identify any responsive documents to which they have access. If no such documents exist, Defendants' responses should so state.
 
VI. Interrogatory #10
This request seeks information regarding communications with Tennessee customers or potential customers through the website's “Contact Prairie Technology” feature. Defendants answered in part, stating that “it does not believe it has had any written communications with customers from Tennessee or elsewhere through the related interface.”
 
Defendants belief that they do not have responsive documents is insufficient to satisfy their discovery responsibilities. They have a duty to search what records they do have access to, so as to determine whether responsive documents exist. Defendants are DIRECTED to supplement their responses to identify any responsive documents to which they have access. If no such documents exist, Defendants' responses should so state.
 
VII. Interrogatory #11
This request seeks information regarding whether Tennessee customers or potential customers have “signed in,” “registered,” or obtained “passwords” for Defendants' websites. Defendants answered in part, stating that “it does not believe it possess any responsive communications or writings responsive to this interrogatory.”
 
Defendants belief that they do not have responsive documents is insufficient to satisfy their discovery responsibilities. They have a duty to search what records they do have access to, so as to determine whether responsive documents exist. Defendants are DIRECTED to supplement their responses to identify any responsive documents to which they have access. If no such documents exist, Defendants' responses should so state.
 
VIII. Interrogatories #13 and #14
These requests asks Defendants to identify email records sent or received from persons in Tennessee (#13) and written communications regarding business inquiries from Tennessee residents. Defendants object to these requests as overly broad and unduly burdensome because they are not limited in time or regarding the subject matter of the emails/written communications in question. With respect to the question of time frame, the Court notes that the Defendants have asserted that they began operation on or around January 1, 2015. This would naturally limit the time frame of the interrogatories to approximately five years. The Court does not find this time frame excessive.
 
With respect to the question of the subject matter of the emails/written communications, given that the documents will initially be limited to connections with persons from Tennessee, the Court, at this time, does not find that the scope of the request is overly burdensome. If, after searching, Defendant uncovers a truly excessive number of potentially responsive documents, then the parties should meet and confer to discuss the use of search terms to narrow down the scope. If the parties are unable to agree as to the use of search terms, then Defendants may move for a protective order at that time. In doing so, the parties are directed to make every effort to resolve such an issue on their own. The Court will not look kindly on obstructive behavior or litigation gamesmanship.
 
*4 Accordingly, Defendants are DIRECTED to supplement their responses to identify any responsive documents to which they have access. If no such documents exist, Defendants' responses should so state.
 
IX. Objections That Interrogatories Are Not Relevant to Personal Jurisdiction
Plaintiff argues that Defendants have raised several objections that the information sought is not relevant to the question of personal jurisdiction. In doing so, Plaintiff only points to one specific Interrogatory, #21. [See Doc. 31 at pp. 18-19] The Court notes that Interrogatory #21 is one of those which exceeds the number of Interrogatories allowed under the Rules, and thus it is covered by the Court's ruling above. To the extent that any other such objections exist which have not been addressed above, Plaintiff has not specifically identified any other Interrogatories. The Court will not search through the discovery requests to identify potential issues that Plaintiff could have raised on its own. T o the extent that Plaintiff argues that the scope of discovery should be expanded beyond that of jurisdiction, the District Court has previously rejected such a request. [Doc. 39].
 

X. Conclusion
Accordingly, for the reasons set forth more fully above, Plaintiff's Motion [Doc. 30] is GRANTED in part and DENIED in part. Subject to the Court's findings above, the Court ORDERS Defendants to amend/supplement their discovery responses within two weeks of the entry of this Order. The Court ADMONISHES Defendants that the failure to abide by the instant Order may warrant sanctions. See Fed. R. Civ. 37(b)(2)(A)(i)-(vii).
 
IT IS SO ORDERED.
 
ENTER: