*1 TO: Pamela Lynn Colon, Esq.

Miles L. Plaskett, Esq.

Julian Jackson-Fannin, Esq.

Harvey W. Gurland, Jr., Esq.

Christopher Allen Kroblin, Esq.

THIS MATTER is before the Court upon Defendants Atlantic Tele-Network International, Inc.[,] (ATN) and Virgin Islands Telephone Corporation d/b/a Viya (Viya)’s Renewed Motion to Compel Discovery Responses (First Requests for Production of Documents) and Incorporated Memorandum of Law (ECF No. 88). Plaintiff filed an opposition to the motion (see ECF No. 104), and said Defendants filed a reply thereto (see ECF No. 106).

Said Defendants take issue with what they refer to as Plaintiff's “supplemental” objections to Requests for Production (RFP) Nos. 3, 9, 10, and 76 and Plaintiff's “privilege” objection to RFP Nos. 2 and 8 (Mot. at 6 et seq.); seek production of responsive documents from “key custodians” (Mot. at 13 et seq.); and, request the Court to order Plaintiff to provide the “search methodology” used to search for responsive documents (Mot. at 16).[1]

I. DISCUSSION

A. Applicable standards

Federal Rules of Civil Procedure Rule 34 governs the production of documents. Subparagraph (a) of the said rule requires the responding party to produce responsive documents “in the responding party's possession, custody, or control ....” Fed. R. Civ. P. 34(a)(1). It is well established that “[f]ederal courts construe ‘control’ broadly for Rule 34 purposes.” Castellani v. City of Atl. City, No. 13-5848 (JBS/AMD), 2016 WL 7155826, at *3 (D.N.J. Sept. 15, 2016). Our sister court for the Western District of Pennsylvania notes, “[E]ven if a document is not within the responding party's actual possession or custody, courts broadly construe the word “ ‘control.’ ” Arconic Inc. v. Novelis Inc., No. CV 17-1434, 2018 WL 4958976, at *3 (W.D. Pa. Oct. 15, 2018) (citations omitted). In Perez v. Great Wolf Lodge of the Poconos LLC, No. 3:12-CV-01322, 2017 WL 34697 (M.D. Pa. Jan. 3, 2017), the court declares:

Id. at *6.

Although Rule 26 allows a party to withhold “information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material,” Fed. R. Civ. P. 26(b)(5), the rule mandates that “the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Usually “this description takes the form of a privilege log.” Anderson v. Caldwell City Sheriff's Office, No. 1:09cv423, 2011 WL 2414140, at *2 (W.D.N.C. June 10, 2011). See also, e.g., New Park Ent. L.L.C. v. Electric Factory Concerts, Inc., No. CIV.A. 98-775, 2000 WL 62315, at *8 (E.D. Pa. Jan. 13, 2000) (“Courts in this district have held that parties must comply with the requirements of Fed. R. Civ. P. 26(b)(5) by providing a privilege log.” (citation omitted)). The Anderson court continues, ““[A] party simply cannot claim privilege and refuse to provide a privilege log; indeed, some courts have found that doing so results in waiver of the privilege.’ ” 2011 WL 2414140 at *2 (citations omitted).

B. Laches

*2 Plaintiff begins its arguments in opposition to Defendants ATN and Viya's motion by claiming that said Defendants have waived their right to compel discovery pursuant to the operation of laches. Opp'n (ECF No. 104) at 5-6. It is true that the federal rules do not specify a time limit for filing a motion to compel and that a court may deny a motion to compel due to undue delay. See, e.g., Herndon v. City of Henderson, Case No.: 2:19-cv-00018-GMN-NJK, 2020 WL 7382766, at *3 (D. Nev. Dec. 16, 2020). However, the Court was unable to find any case law employing the theory of laches in the context of discovery and motions to compel discovery.

In the absence of a specific rule, the “determination as to the timeliness of [a motion to compel] is left to the exercise of judicial discretion.” Id. The general rule, as followed by this Court, is that “motions to compel filed during the discovery period are rarely considered to be untimely.” V5 Technologies v. Switch, Ltd., 332 F.R.D. 356, 360 (D. Nev. 2019). See also, e.g., Kmart Corporation v. Sunny Isle Developers, LLC, 1:14-cv-00077, 2016 WL 11396508, at *1 (D.V.I. Dec. 20, 2016) (stating the general rule that a “motion to compel discovery must be filed with the time allowed for the discovery itself” and collecting cases). Here, in the matter currently before the Court, at the time said Defendants filed their renewed motion to compel on February 25, 2021, the discovery deadline was set for March 31, 2021.[2] See Scheduling Order (ECF No. 51), entered March 20, 2020. Thus, said Defendants’ motion was filed well in advance of the close of discovery. In addition, the Court determines that any delay in the filing of the original and renewed motions to compel was not undue or prejudicial to Plaintiff. Consequently, the Court finds the renewed motion to compel timely and any rights due to said Defendants have not been waived.

C. Reservation of objections

The language of the Court's text only Order (ECF No. 66), entered June 24, 2020, granting the parties Agreed Motion for Extension of Time (ECF No. 63), copies the language used in the said motion. See Agreed Motion for Extension of Time (ECF No. 63) at 1 and Order (ECF No. 66).[3] The language itself makes clear that the parties’ negotiated extension of Plaintiff's deadline to respond to Defendant ATN and Viya's RFP to June 25, 2020, covered both written responses and objections. Id. The agreed motion and order allowed the actual documents to be produced by July 15, 2020. Id. The amended written responses to be filed on July 15, 2021, were to be served in order to include Bates stamp numbers to the original written responses. Id. Nothing either in the agreed motion or in the Court's order granting the motion can be construed to allow Plaintiff to assert objections to said Defendants’ RFP beyond the June 25, 2020, deadline. And, while Rule 34, unlike Rule 33, compare Fed. R. Civ. P. 33(b)(4) with Fed. R. Civ. P. 34(b)(2)(C), does not expressly provide that untimely objections are waived, the Court finds that Plaintiff has not established good cause[4] for not stating specific objections in its initial written responses served on June 25, 2020, especially given that fact that Plaintiff agreed to the said deadline.[5]

*3 Even if the motion and order could be interpreted otherwise, the Court finds nothing in the rules or caselaw that authorizes reserving objections. See, e.g., Pepperwood of Naples Condo. Ass'n, Inc. v. Nationwide Mut. Fire Ins. Co., No. 2:10-cv-753-FtM-36SPC, 2011 WL 3841557, at *2 (M.D. Fla. Aug. 29, 2011) (where the court, addressing discovery responses that gave answers but then stated that the answer was given subject to certain objections, declares, “Simply put, the rules do not on their face give a party that option.... Rule 34(b)(2), relating to request for production, provides that a responding party shall state in writing what documents will be produced, and that if objection is made to part of the request, the objection must specify the part and permit inspection of the rest. Objecting but answering subject to the objection is not one of the allowed choices under the Federal Rules” (citing Mann v. Island Resorts Dev., Inc., No. 3:08CV297/RS/EMT, 2009 WL 6409113, at *3 (N.D. Fla. Feb. 27, 2009) (emphasis in original)). In Mann v. Island Resorts Dev., Inc., the court held, “In this court, however, no objections are ‘reserved’ under the rules; they are either raised or they are waived.” 2009 WL 6409113, at *3. See, also, Fogarty v. Gallegos, No. CIV 05-26 WJ/LFG, 2005 WL 8165399, at *9 (D.N.M. Sept. 27, 2005) (“[A] response which purportedly ‘reserves’ the right to raise objections at a later time may result in waiver of any objections that could have been raised.” (citation omitted)); Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 304 (D. Kan. 1996) (“Parties cannot reserve objections to use at their leisure.”).

Based upon the foregoing, the Court finds that Plaintiff waived any objections not specifically asserted in its initial written responses dated June 25, 2020.[6]

Even though Plaintiff's objections have been deemed waived, the Court specifically overrules Plaintiff's objections to the words and phrases “commencement” (RFP No. 3), “reflecting the computation of any damages” (RFP No. 9), and “to perform services” (RFP No. 76). The Court finds nothing vague, unusual, or ambiguous about Defendants ATN and Viya's use of these words and phrases. The words and phrases are straightforward and unambiguous and shall be accorded their ordinary meanings.

D. Privilege objection

Defendants ATN and Viya ask the Court to overrule Plaintiff's objection to their RFP Nos. 2 and 8 based upon attorney-client privilege and/or attorney work-product doctrine. Taking Rules 34 and 26 together, objections to requests for production of documents based upon privilege must “state whether any responsive materials are being withheld on th[at] basis,” Fed. R. Civ. P. 34(b)(2)(C), and describe the nature of the documents that are not being produced and do so in a manner that enables the other party to determine whether the privilege attaches. Fed. R. Civ. P. 26(b)(5)(A)(ii).

The United States District Court for the Northern District of Texas’ explanation of the standard regarding the work-product protection of Federal Rule of Civil Procedure Rule 26(b)(5) in Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 WL 884742, (N.D. Tex. Feb. 27, 2014), is instructive:

*4 Id. at *2 (citations omitted) quoted in Zenith Ins. Co. v. Texas Inst. for Surgery, L.L.P., 328 F.R.D. 153, 162 (N.D. Tex. 2018) (emphasis added). See, also, e.g., Coldwell Banker Real Estate Corp. v. O'Neal, Civil Action No. 06–2525, 2006 WL 3845011, *1 (E.D. La. Dec. 29, 2006) (“[P]arties resisting discovery by asserting any privilege bears the burden of proof sufficient to substantiate their privilege claims and cannot rely merely on a blanket assertion of privilege.” quoted in Enron Corp. Sav. Plan v. Hewitt Assocs., L.L.C., 258 F.R.D. 149, 160 (S.D. Tex. 2009)).[7]

Plaintiff's response to RFP No. 2 reads, in full: “Plaintiff objects to this request on the basis that it violates the attorney work product doctrine in that the First Amended Verified Complaint was prepared by its attorney and anything relied upon in the attorney is covered by the doctrine.” Opp'n at 8. Plaintiff then states that the “response is complete and appropriate.” Id. On the contrary, Plaintiff's response does not comply with the requirements outlined in Rule 34 and Rule 26 that would allow Plaintiff to withhold discovery by claiming privilege. Nothing in Plaintiff's said response states whether responsive documents are being withheld, nor does Plaintiff offer or state any facts supporting its objection. Plaintiff has failed to provide any facts in the form of affidavits or even a privilege log.[8]

Plaintiff's response to RFP No. 8 is similar: “Plaintiff objects to this request on the basis that it violates the attorney/client privilege and attorney work product doctrine in that details contained within the requested documents will expose the substance of communications between Plaintiff and its attorney as well as the litigation strategy of the Plaintiff and other specifics regarding the work performed by the attorney.” Opp'n at 12. Again, Plaintiff does not adequately describe the documents that would be responsive to this request with facts sufficient for Defendants ATN and Viya (or the Court) to determine whether the documents are protected. Plaintiff merely makes a “blanket assertion of privilege,” Coldwell Banker, 2006 WL 3845011, at *1, and fails to “states specific and precise reasons for [its] claim of protection from disclosure.” Orchestrate HR, 2014 WL 884742, at *2.

*5 Although “courts have been more circumspect in finding a waiver of a privilege objection,” First Sav. Bank, F.S.B. v. First Bank System, Inc., 902 F. Supp. 1356, 1361 (D. Kansas 1995), courts have held that, as with boilerplate general objections, “[t]o avoid possible waiver, [assertions of privilege] must contain the additional information identified in [Rule 26(b)5].” Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005). See also Mezu v. Morgan State University, 269 F.R.D. 565, 577 (D. Md. 2010) (where the court finds that a failure to provide a privilege log “may constitute a forfeiture of any claims of privilege” (citations omitted)). Consequently, given Plaintiff's failure to assert the privilege properly, in conformity with Rules 34 and 26 of the Federal Rules of Civil Procedure, and in the absence of a privilege log, the Court finds that Plaintiff has waived any and all objections based upon attorney-client privilege and/or attorney work-product doctrine.

E. Withheld documents

Defendants ATN and Viya claim that Plaintiff has failed to produce responsive documents and that Plaintiff improperly claims in its opposition to the motion to compel that responsive documents are not within their possession or control. Mot. at 13-15, Rep. at 9-16. Plaintiff claims that it “does not own, maintain, manage, possess or control any of the email accounts of” certain individuals specifically identified by said Defendants in its motion whose communications said Defendants believe are relevant and responsive to its RFP. Opp'n at 18-19.[9]

Defendants ATN and Viya argue that, if Plaintiff did not have such possession or control, it could not have produced some email communications from some of the email addresses associated with those individuals that already have been produced. Rep. at 14. It appears that all the individuals identified by said Defendants are former employees, principals, or officers of Plaintiff or its affiliated company YomaPR. Mot. at 14-15.

Plaintiff cannot dispute that Rule 34 has been interpreted to include the production of documents where, even if the documents are not in the actual, physical possession of the party, the “party has the legal right to obtain the document.” Zaloga v. Borough of Moosic, No. 3:10-CV-2604, 2012 WL 1899665, at *2 (M.D. Pa. May 24, 2012). Courts also have found that “documents are within a party's control when it has ‘the ... practical ability to obtain the documents,’ particularly when the opposing party does not have the same practical ability to do so.” S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454, at *33 (D.N.M. Aug. 9, 2012) (citations omitted). See also R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 24 (S.D.N.Y.), opinion adopted, 271 F.R.D. 55 (S.D.N.Y. 2010) (“Evidence in a party's ‘control’ has been interpreted to mean evidence that the party has the legal right, authority, or practical ability to obtain by virtue of its relationship with the party in possession of the evidence. (citations omitted) (emphasis added)). Further, courts have held that parties could be compelled to “produce documents in the possession of current and past employees as to whom the [party] exercised some degree of control.” In re Domestic Air Transp. Antitrust Litig., 142 F.R.D. 354, 356 (N.D. Ga. 1992) (citation omitted) (emphasis in original). At the same time, Defendants ATN and Viya have not indicated to what, if any, extent Plaintiff has control over any former employees.

*6 The relationship between YomaPR and Plaintiff is unclear, and the Court cannot determine whether they are sister corporations or whether one is a subsidiary of the other. Where one corporation is a subsidiary or a parent of another and is alleged to have possession of documents that are responsive to a party's RFP, courts have based an order to compel upon whether and to what degree the one corporation has control over the other. See, e.g., Gerling Int'l Ins. Co. v. Commissioner of Internal Revenue, 839 F. 2d 131, 141 (3d Cir. 1988). In the absence of any evidence concerning the relationship between YomaPR and Plaintiff and whether one corporation may have the requisite control over the other sufficient to compel Plaintiff to produce documents possessed by YomaPR, the Court is unable to grant any request for such production.

However, the Court agrees with some of Defendants ATN and Viya's concerns regarding the affidavit of Jose F. Alegria offered by Plaintiff in support of its claims that it does not possess the email communications sought by said Defendants. See Rep. at 13-16. As said Defendants note, Mr. Alegria does not represent that he is the records custodian for Plaintiff. Id. at 15. In addition, said Defendants are correct that Plaintiff had the duty to preserve responsive email communications in anticipation of litigation and, certainly, after litigation was commenced. Id. at 14. Moreover, the Court finds that to the extent that Plaintiff asserts that it had or has no means of maintaining email communications “in the usual course of business” is not credible. Therefore, the Court will order Plaintiff to produce all email communications associated with the following names and email addresses, Jose H. Abilleira (jabilleira@yomapr.com); Jose F. Alegria (josefalegria85@gmail.com), David Claudio (dclaudio@yomapr.com, davidbclaudio@me.com, david@seneca.bz, and davidclaudio@icloud.com), Yaravi Porras (yporras@yomapr.com), Manuel Abilleira (abilleira@yahoo.com), Angel Piñero (apinero@yomapr.com), César Rodriguez (rcesaracct@yahoo.com and cesarrodriguez@yomapr.com), Vanessa Rondón (vrondon@yomapr.com), Randy Bonilla (randy.bonilla23@gmail.com), and Victor Torres (vtorresusvi@yomapr.com) that are responsive to said Defendants requests. Further, in the event and to the extent that Plaintiff continues to insist that it has no such responsive documents, the Court will grant Defendant ATN and Viya's request and order Plaintiff to provide Defendants ATN and Viya with a detailed report of its search methodology.

F. Nonresponsive responses

Although not directly brought to the Court's attention by Defendants ATN and Viya, the Court notes that in response to several RFP Plaintiff refers to a response to another RFP.[10] Rule 34 clearly provides, that responses are to address each request. Fed. R. Civ. P. 34(b)(2)(B) (which states, in relevant part: “Responding to Each Item. For each item or category, the response must ... state ...”). The Court finds that Plaintiff's reference to another RFP response is improper and an effective failure to respond. Consequently, the Court will order Plaintiff to supplement its responses and provide separate, individual answers, identifying specific documents by Bates stamp number to each RFP. See, e.g., S2 Automation LLC, 2012 WL 3656454, at *34.

In addition, those responses that reference documents that have been previously produced, the Court will “further order [Plaintiff] to identify by bates stamp number which documents are responsive to which requests.” Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 541 (D. Kan. 2006). See also, e.g., Safeair, Inc., 2009 WL 4066819, at *2 (“AirTran should identify previously produced documents by Bates number in response to each and all of Safeair's RFPs in its second discovery request.”); Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 618–19 (D. Kan. 2005) (“Since the documents have already been provided to Plaintiffs, the easiest way for DJG to comply with the ‘organize and label’ requirement would be for DJG to identify, by the Bates Numbers the DJG lawyers have already stamped on the documents, which documents are responsive to each of the document requests, as Plaintiffs have requested.”).

*7 To emphasize the fact that the Court expects Plaintiff to provide all documents that are responsive to the requests, the Court will order Plaintiff to include any and all responsive documents not only in its possession, but also within its care, custody, and control, Fed. R. Civ. P. 34(a)(1), whether or not the documents have been previously produced. Sierra Equity Group v. White Oak Equity Partners, LLC, No. 08-80017-CIV, 2010 WL 2400080, at *1 (S.D. Fla. June 16, 2010) (“Defendant is hereby put on notice that he is required to produce all documents not only in his possession, but all documents in his care, custody or control.” (citations omitted)); Payless Shoesource Worldwide, Inc. v. Target Corp., Civil Action No. 05-4023-JAR, 2008 WL 973118, at *5 (D. Kan. Apr. 8. 2008) (making clear that the court “was not limiting the nature of defendants’ search for, or production of, responsive documents” (emphasis in original)).

II. CONCLUSION

Having reviewed the motion and other briefs and the attachments thereto and upon due consideration thereof, the Court finds that Plaintiff's responses and amended responses to Defendants ATN and Viya's requests for production of documents are deficient. Consequently, the Court will grant the motion in part and deny it in part and will order Plaintiff to serve supplemental responses upon each said Defendant as set forth herein.

WHEREFORE, for the foregoing reasons, it is now hereby ORDERED:

ENTER:

Defendants ATN and Viya's renewed motion also requests production of allegedly missing documents. See Mot. at 13. However, said Defendants acknowledge in their reply that Plaintiff has produced these documents, albeit after the filing of the renewed motion. Rep. at 8-9.

Since the filing of the motion currently before the Court, the discovery deadline has been extended to June 30, 2021. See Order Amending Scheduling Order (ECF No. 102), entered March 12, 2021.

The Court granted the parties’ said motion by a text-only Order (ECF No. 66), which reads, in full: “ORDER (GWC) dated 6/24/2020 UPON CONSIDERATION of 63 Motion for Extension of Time, it is now hereby ORDERED that the motion is GRANTED; and, it is further ORDERED that Plaintiff shall serve its written responses and objections to ATN and VIYAs [sic] First Requests for Production of Documents on Thursday, June 25, 2020; and, it is further ORDERED that Plaintiff shall serve the corresponding documents to ATN and VIYAs [sic] First Request for Production of Documents on Wednesday, July 15, 2020; and, it is further ORDERED that Plaintiff shall serve amended responses with Bates stamp numbers to ATN and VIYAs [sic] First Request for Production of Documents on Wednesday, July 15, 2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (KMD) (Entered: 06/24/2020)” (words in all capital letters in original).

“[F]ederal district courts have discretion to grant relief from a waiver where there is good cause to do so. Karr v. Napolitano, Case No. C 11–02207 LB, 2012 WL 1965855 (N.D. Cal. May 31, 2012) (collecting cases).” Spectrum Scientifics., LLC v. Celestron Acquisition, LLC, Case No. 20-cv-03642-EJD (VKD), 2020 WL 7352644, at *1 (N.D. Cal. Dec. 15, 2020); see also, e.g., Brown v. Warden Ross Correctional Inst., Civil Action No. 2:10-cv-822, 2011 WL 1877706, at *2 (S.D. Ohio May 16, 2011) (“Rule 33 provides that any ground for objecting to an interrogatory “not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4). Although Rule 34, governing requests for production of documents, does not expressly provide relief for delinquent objections, courts have nonetheless likewise granted such relief upon a showing of good cause.” (citations omitted)).

The Court notes that the Agreed Motion for Extension of Time (ECF No. 63) was filed by counsel for Plaintiff. The Court is of the opinion that in the event Plaintiff required additional time to serve proper responses, including objections, it could have negotiated a further extension with Defendants ATN and Viya or sought such relief from the Court.

Defendants ATN and Viya direct their motion to Plaintiff's reservation of objections contained in their responses to RFP Nos. 3, 9, 10, and 76. However, the Court's finding that objections cannot be “reserved” and must be specifically stated in responses, when due, applies to all Plaintiff's responses that purport to reserve objections.

Although not a point at issue here since Plaintiff has submitted no facts or information, the Court notes that normally a party is required to provide such supporting information when the withheld documents should have been produced. Enron Corp. Sav. Plan, 258 F.R.D. at 163 (“When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Rule 26(b)(5) plainly contemplates that the required notice and information is due upon a party withholding the claimed privileged material. Consequently, reading Rules 26(b)(5) and 34(b) together, the producing party must provide Rule 26(b)(5) notice and information at the time it was otherwise required to produce the documents under Rule 34.”) (quoting First Savings Bank, F.S.B., v. First Bank System, Inc., 902 F. Supp. 1356, 1360 (D. Kansas 1995)).

No such affidavits or other document identifying and/or describing the alleged protected information were attached to Plaintiff's response to the motion to compel. Also, Defendants ATN and Viya declares in its renewed motion: “Monterey has failed to provide ATN and VIYA with a privilege log to support its objections.” Mot. at 11. As noted at footnote 7 above, these types of documents that describe the nature of the withheld information are normally required be provided at the same time production is due.

In support of Plaintiff's contention that it cannot be compelled to produce documents in the possession of a corporate officer or employee, it cites Paiewonsky v. Paiewonsky, 8 V.I. 62 (D.V.I. 1970). Opp'n at 19. First, the Court notes that the parallel citation to the Federal Rules Decision reporter in the Opposition is incorrect. Second, the Court can find nothing in Paiewonsky that could even remotely be interpreted to state that a “corporate party cannot be compelled to produce documents in the possession of a corporate officer or employee.” Opp'n. at 19.

Plaintiffs attach copies of its initial written responses and its amended responses to its Opposition (ECF No. 104) at Attachment Nos. 3-6.