*1 On April 11, 2023, the Honorable District Judge Thomas S. Kleeh entered an Order, [ECF No. 60], referring Plaintiffs’ Motion to Compel Discovery from David and Kristen Weimer, [ECF No. 57], to the undersigned Magistrate Judge so he may consider the record and do all things proper to render a decision as to the disposition of the motion. The undersigned is also in receipt of Defendants’ Response. [ECF No. 63].

On May 3, 2023, the undersigned Magistrate Judge conducted a motion hearing on the pending, referred Motion to Compel Discovery. [ECF Nos. 61, 66]. At the Motion Hearing, [ECF No. 66], Plaintiffs’ counsel maintained their argument that there was a stay in discovery, per the Omnibus Report and Recommendation, [ECF No. 43], and the Motion to Compel, [ECF No. 57], is timely and reasonable considering Judge Kleeh's recent ruling on the same and issuance of a new scheduling order. [ECF No. 52, 53, 56]. Plaintiffs argued to the extent there was a mistaken interpretation of the stay in discovery, any delay in filing a motion to delay should be seen as excusable, and Plaintiffs seek lenience from this Court.

By their Motion, [ECF No. 57], Plaintiffs seek an Order from this Court compelling discovery on financial information from Braddock Construction, LLC., as well as the personal and business financial records of David and Kristen Weimer. Plaintiffs asserts this information is relevant to the ultimate issues in this case – interpretation of an indemnification clause between the parties and the assessment of damages, if any, for breach of contract. Plaintiffs’ counsel also proffered that they would not oppose the entry of a protective order or the Court's in camera review of the same documents to protect from the disclosure of any sensitive information belonging to Defendants.

Counsel for Defendants David and Kristen Weimer reiterated Defendants’ procedural objections, arguing that this Motion to Compel is untimely, and further arguing that Plaintiffs have not sufficiently demonstrated need for such sensitive financial information. [See also ECF No. 63 at 2].

The parties jointly noted for the undersigned that, pursuant to the recent Second Scheduling Order entered by the Honorable Thomas S. Kleeh, [ECF No. 56], the deadline for the completion of discovery in this matter does not conclude until December 15, 2023. [ECF No. 56 at 1]. The parties further represented they planned for on-going, supplemental discovery disclosures and meet-and-confer discussions in the coming weeks, including expert disclosures, which might narrow the materials sought regarding the assets and financial records of Braddock Construction, LLC., David Weimer, and Kristen Weimer from 2015 to present.

By Order dated May 11, 2023, the undersigned U.S. Magistrate Judge held the matter in abeyance and scheduled a Status Conference for June 7, 2023, to discuss ongoing discovery matters with the parties. [ECF No. 67].

At the June 7, 2023 Status Conference, the parties summarized that Braddock has since responded to Plaintiffs’ revived discovery requests but has not provided substantive responses. The parties explained that Braddock maintains primary objections to the requests on the grounds that the Motion to Compel is untimely and Defendants should not have to “start over” in discovery. Likewise, the Weimer Defendants maintain that they seek to avoid invasive financial discovery. Defendants support their objections by asserting that Plaintiffs have not made a sufficient case for piercing the corporate veil as to allow for discovery. Hopper v. Jay Bee Oil & Gas, Inc., 2021 WL 7448645, at *2 (N.D.W.Va., 2021).

*2 Plaintiffs’ counsel believes these objections to be contrary to law regarding alter ego claims and believes there is no strong basis for such an objection. Long v. M&M Transp., LLC, 2014 WL 235517, at *3 (N.D.W.Va. 2014) (“[W]hen a party seeks discovery about the relationships between individuals and a corporation, relevance is broadly and liberally construed. The issue is not whether [the party] may ultimately prevail on the piercing the corporate veil theory, but whether the allegations are sufficient to allow them to conduct discovery in an attempt to prove their allegations.”) (internal citations omitted).

1. The Motion to Compel is TIMELY.

Pursuant to Federal Rule of Civil Procedure 37(a), “a party may move for an order to compel discovery or disclosure from an opposing party where the opposing party fails to respond or where the party's response is evasive or incomplete.” Patrick v. Teays Valley Trustees, LLC, 297 F.R.D. 248, 253 (N.D.W.Va., 2013). Discovery responses are due within 30 days of service unless the parties or the court stipulate to a different due date. Fed.R.Civ.P. 33(b)(2); Fed.R.Civ.P.34(b)(2). However, district courts have the discretion to examine the circumstances surrounding a perceived “untimely” motion to compel in order “to avoid what may constitute overly ‘technical’ applications of the Rule.” Ayers v. Continental Cas. Co., 240 F.R.D. 216, 225 (N.D.W.Va. 2007). See also Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995) (District court are afforded “substantial discretion in managing discovery.”); Patrick v. Teays Valley Trustees, LLC, 297 F.R.D. 248, 253–54 (N.D.W.Va., 2013)

“Generally, absent a specific directive in the scheduling order, motions to compel discovery filed prior to the discovery deadline have been held timely.” Reed v. Beverly Hills Porsche, 2018 WL 10396251, at *1 (W.D.Va., 2018)(quoting PCS Phosphate Co. v. Norfolk S. Corp., 238 F.R.D. 555, 558 (E.D.N.C. 2006)). Motions to compel are deemed “untimely” and are less likely to be considered where the parties have ‘had adequate opportunity to perform all the discovery [they] needed.’ ” Wooten v. Commonwealth of Virginia, No. 6:14-cv-13, 2015 WL 13658068, at *2 (W.D. Va. June 9, 2015) (quoting Gulfstream, Inc. v. PalmYacht Sales, Inc., 176 F.3d 475, at *4 (4th Cir. 1999)).

Defendants Dave and Kristen Weimer argue the Plaintiffs’ Motion to Compel, [ECF No. 57], is untimely under the Local Rules of Civil Procedure 72.02 because over thirty (30) days has passed since Defendants served their discovery responses on June 7, 2022. Plaintiffs asserts that Defendants’ position fails to fully consider both Judge Kleeh's Order Granting the Joint Motion to Vacate Scheduling Order, as well as the undersigned interpretation of the same in his subsequent Omnibus Report and Recommendation. See Plaintiffs’ Exhibit 5, [ECF No. 57-5], Order, [ECF No. 41] (“deadlines ... are STAYED pending further order of the Court”); Omnibus Report and Recommendation, [ECF No. 43 at 21] (“this Court's most recent Order, ... effectively serves to also stay all discovery pending the determination of the pending dispositive motions[.]”).

The undersigned agrees with Plaintiffs’ position. The record is clear that Judge Kleeh vacated the scheduling order, including court-imposed discovery deadlines and requirements, in November 2021 pursuant to the parties’ joint motion. See [ECF No. 41 (granting ECF No. 39)]. The undersigned's Omnibus Report and Recommendation addressed that Order and the fact that the deadlines were already stayed, per Judge Kleeh's prior Order, because Defendants David and Kristen Weimer independently sought a stay of discovery by way of their motion, [ECF No. 30], which the undersigned denied as moot because discovery was already metaphorically “paused” per Judge Kleeh's Order. [ECF No. 43 at 21]. Upon review, Judge Kleeh adopted the undersigned's recommendations regarding the vacated order and Defendants’ motion for a stay of discovery. [ECF No. 52 at 14 (The Veil-Piercing Defendants have moved the court to stay discovery until it has ruled on their motion to dismiss. The scheduling order in this case has already been vacated. Thus, this motion is DENIED AS MOOT [ECF No. 30].”)].

*3 The undersigned cannot find Plaintiffs’ Motion to Compel is untimely or derelict when there was a stay in discovery per the Court's Order granting the parties’ joint motion, [ECF No. 41], the undersigned's Omnibus Report and Recommendation, [ECF No. 43 at 21 (recommending denial of duplicative motion to stay discovery)], and the Court's second Order Adopting the Report and Recommendation, [ECF No. 52 at 14 (motion for a stay in discovery moot)].

Notably, a Second Scheduling Order was entered on March 24, 2023, [ECF No. 56], and Plaintiff filed Motion to Compel, [ECF No. 57], shortly thereafter on April 7, 2023. There is no evidence to suggest Plaintiffs caused undue delay or attempted to prejudice Defendants in bringing this motion. Defendants are correct that gamesmanship is highly disfavored by this Court as it leads to a waste of judicial time and resources. See Segal v. Dinsmore and Shohl, 1:20-CV-267 (N.D.W.Va March 31, 2023) (Kleeh, J.). Because of the stay, put in place by the parties’ joint motion, the parties have not yet ‘had adequate opportunity to perform all the discovery [they] needed.’ ” Wooten v. Commonwealth of Virginia, No. 6:14-cv-13, 2015 WL 13658068, at *2 (W.D. Va. June 9, 2015) (quoting Gulfstream, Inc. v. PalmYacht Sales, Inc., 176 F.3d 475, at *4 (4th Cir. 1999)). This is especially the case for Plaintiffs who have not yet gotten any substantive responses from Braddock Construction, LLC.

Accordingly, the undersigned FINDS Plaintiffs’ Motion to Compel, [ECF No. 57], to be timely, despite any procedural objections from Defendants. Ayers v. Continental Cas. Co., 240 F.R.D. 216, 225 (N.D.W.Va. 2007). See also Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).

2. The Motion to Compel is GRANTED, IN PART, as to Braddock Construction, LLC, because the information sought therein is relevant, not privileged, and reasonably calculated to lead to the discovery of admissible evidence.

Federal Rule of Civil Procedure 26(b)(1) provides that

Fed. R. Civ. P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction. See Herbert v. Lando, 441 U.S. 153, 99 S.Ct.1635, 60 L.Ed.2d 115 (1979); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.451 (1947). However, pursuant to Rule 26(c), a litigant is not entitled to conduct discovery that is intended to harass, annoy, embarrass, oppress or that causes undue burden or expense to the opposing party.

Whether to grant or deny a motion to compel is generally left within the District Court's broad discretion. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922 (4th Cir. 1995).

The question here is whether Defendants Braddock Construction, LLC, as well as Defendants David and Kristen Weimer, should be compelled to produce business records pursuant to Second Scheduling Order, [ECF No. 56], Plaintiffs’ discovery requests, and Plaintiffs’ subsequent Motion to Compel, [ECF No. 57]. Plaintiffs are seeking information in discovery information regarding Braddock accounts, employees, finances, management, and supervision from 2015 to present, as well as the same information from the Weimer Defendants. Plaintiffs argue this information is relevant and reasonably calculated to lead to the discovery of admissible evidence regarding the indemnification clause, the Master Service Agreement, and the “hiring” of Braddock. The undersigned agrees – Plaintiffs appear to be seeking the most basic of business and financial records from Defendants. “Discovery of information for purposes of establishing the existence of facts sufficient to support an alter-ego theory is especially appropriate when much of the relevant information is in the control of the other party.” Long v. M&M Transp., LLC, 2014 WL 235517, at *3 (N.D.W.Va. 2014).

*4 For the reasons articulated above, and those set forth on the June 7 and May 3, 2023, oral records, the undersigned FINDS that the information sought by Plaintiffs Motion to Compel is relevant and reasonably calculated pursuant to Rule 26 of the Federal Rules of Civil Procedure. It is hereby ORDERED that Plaintiffs’ Motion to Compel, [ECF No. 57], is GRANTED, IN PART, to the extent Plaintiffs first seek business and financial records from Defendant Braddock Construction, LLC. The undersigned RESERVES JUDGMENT, or HOLDS IN ABEYANCE, Plaintiffs’ Motion to Compel, [ECF No. 57], to the extent it seeks the personal, individual tax records of Defendants David and Kristen Weimer. The undersigned will issue a final order as to Defendant David and Kristen Weimer and Plaintiffs’ Motion to Compel, [ECF No. 57], only after the receipt of further information which ripens the issue.

3. An additional status conference is necessary.

The undersigned Magistrate Judge now SCHEDULES an additional Status Conference in this matter by videoconference / teleconference to be conducted for Monday, July, 10, 2023 at 1:00 p.m. in the Magistrate Judge Courtroom at the Elkins,[1] West Virginia point of holding court. The Court will circulate the Court's Zoom information to the parties prior to the status conference. This status conference will address the status of the relevant business and financial records from Braddock Construction, LLC., to the Plaintiffs, and any proposed protective orders or in camera review requested by the parties. The parties are ORDERED to meet and confer by close of business on July 7, 2023, regarding the Motion and the information sought therein.

It is all so ORDERED.

The Clerk of the Court is directed to provide a copy of this Order to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.