Purugganan v. AFC Franchising, LLC
Purugganan v. AFC Franchising, LLC
2022 WL 20701195 (D. Conn. 2022))
August 30, 2022
Richardson, Robert A., United States Magistrate Judge
Summary
The plaintiff filed a motion to compel better discovery responses from the defendant regarding ESI. The court denied the motion, finding that the plaintiff failed to establish the relevance of the requested ESI and that the defendant was unable to produce certain documents due to confidentiality and redaction concerns. One request was withdrawn, rendering the motion moot.
Additional Decisions
DANILO PURUGGANAN, Plaintiff,
v.
AFC FRANCHISING, LLC, Defendant
v.
AFC FRANCHISING, LLC, Defendant
CASE NO. 3:20cv360(KAD)
United States District Court, D. Connecticut
Filed August 30, 2022
Counsel
Brian C. Roche, Gerald C. Pia, Jr., Roche Pia LLC, Shelton, CT, Allan C. Samuels, Laura Carbo, Boca Raton, FL, for Plaintiff.Eric Del Pozo, Mark Kean Ostrowski, Matthew Gibbons, Sarah E. Dlugoszewski, Shipman & Goodwin LLP, Hartford, CT, Michael J. Douglas, Leak, Douglas & Morano, PC, Birmingham, AL, for Defendant.
Richardson, Robert A., United States Magistrate Judge
RULING ON PENDING MOTIONS
*1 Pending before the court is plaintiff Danilo Purugganan's Motion to Compel Better Discovery Responses. (Dkt. #191) The defendant filed a memorandum in opposition to the motion to compel (dkt. #195) and the plaintiff filed a reply brief (dkt. #199). For the following reasons, plaintiff's motion to compel is DENIED.
Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that
[p]arties 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
“Discovery under the Federal Rules of Civil Procedure is a conditional and carefully circumscribed process.” Bagley v. Yale Univ., 315 F.R.D. 131, 144 (D. Conn. 2016), as amended (June 15, 2016). The party seeking the discovery has the burden of demonstrating relevance. Id. This analysis “requires one to ask: Is the discovery relevant to a party's claim or defense? Which claim? Which defense? At this stage of the litigation, one looks to the parties’ pleadings for their claims or defenses.” Id. Once the requesting party has demonstrated relevance, “[t]he party resisting discovery bears the burden of showing why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).
“Where a party ‘fails to produce documents ... as requested,’ Federal Rule of Civil Procedure 37 permits ‘[the] party seeking discovery ... [to] move for an order compelling an answer, designation, production or inspection.’ ” In re Aggrenox Antitrust Litig., No. 3:14-CV-572 (SRU), 2017 WL 5885664, at *1 (D. Conn. Nov. 29, 2017) (quoting Fed. R. Civ. P. 37(a)(3)(B))(alterations in original). “Because the Federal Rules ... are to be construed liberally in favor of discovery, ... the party resisting discovery bears the burden of showing why discovery should be denied.” In re Aggrenox Antitrust Litig., 2017 WL 5885664, at *1 (internal citations and quotation marks omitted).
“All ‘[m]otions relative to discovery,’ including motions to compel, ‘are addressed to the discretion of the [district] court.’ ” Id. (quoting Soobzokov v. CBS, Quadrangle/New York Times Book Co., 642 F.2d 28, 30 (2d Cir. 1981)). “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.” Crawford-El v. Britton, 523 U.S. 574, 598 (1998). Discovery orders “will only be reversed if [the district court's] decision constitutes an abuse of discretion.” Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991).
Discussion
Plaintiff's Request for Production 1 states:
Produce the document(s) with respect to Plaintiff's Master Developer Agreement which substantiate(s) AFC's allegations in Paragraph 6 of its Answer that “In 2012, DRX Urgent Care, LLC (“DRX”) acquired the assets of the “Doctors Express’ system from DEF. In connection with this transaction, DRX took assignments of the “Doctors Express” Master Developer Agreements from DEF, Including that of Plaintiff”, including, but not limited to the specified assignment.
*2 The plaintiff argues that the requested documents are relevant to specific allegations in the defendant's answer. However, the defendant argues that the parties’ stipulation of facts makes the requested documents irrelevant. Given the stipulation, there is no dispute that the defendant acquired the assets in question. Since plaintiff need not prove a stipulated fact, defendant argues that the request for production is not relevant or is disproportionate to the needs of the case. The Court agrees. The defendant further argues that this is a fishing expedition designed to allow plaintiff to discover the financial details of a transaction to which he is not a party.
In his reply brief, plaintiff articulates a new theory of relevance for the requested documents. (Dkt. #199 at 3.) Plaintiff argues that the stipulation does not show what the third party (Doctors Express) may have represented to the defendant in connection with the Master Program. Although the plaintiff states that this “is very much at issue in this case,” plaintiff fails to articulate why this information is supposedly relevant. As the movant, plaintiff has the burden of establishing that the requested information is relevant. The Court finds that the plaintiff has failed to meet his burden. Therefore, plaintiff's motion to compel a response to Request for Production No. 1 is denied.
Plaintiff's Request for Production 2 states:
Produce the document(s) with respect to Plaintiff's Master Developer Agreement which substantiate(s) AFC's allegations in Paragraph 7 of its Answer that “In April 2013, an affiliate of AFCF acquired the assets of the “Doctors Express’ system from DRX. This sale also included as assignment of the “Doctors Express” Master Developer Agreements from DEF, including that of Plaintiff”, including, but not limited to the specified assignment.
Request for Production No. 2 is very similar to Request for Production No. 1. Therefore, the parties essentially make the same arguments for both requests. Thus, for the reasons articulated above, plaintiff's motion to compel a response to Request for Production No. 2 is denied.
Plaintiff's Requestion for Production 3 states:
Produce the document(s) signed at the closing in December, 2020, at which AFCF or its affiliate acquired the three franchised clinics specifically related to those three clinics in Plaintiff's Master Territory.
The defendant represents that the closing documents only contain a combined valuation for all thirteen clinics that were sold, and that defendant is unable to redact the document in a manner that would separate out the information for three clinics that are at issue in this litigation. (Dkt. #195 at 7.) Plaintiff argues that defendant should, at the least, produce the documents with a “confidential” designation. However, plaintiff's argument misses the point. The documents would only give the combined value of all thirteen clinics involved in the transaction. As the Court noted in a prior ruling (dkt. #180 at 9), the combined figure for all thirteen clinics is not relevant if the document does not indicate the value of each of the three clinics at issue. Marking the document confidential would not change this fact. Plaintiff's motion to compel a response to this request for production is denied.
Plaintiff's Request for production 4 states:
Produce the document(s) upon which Defendant relies to substantiate its allegations at Defendant's counterclaim, count four, paragraphs 32, 33 and 34, as to contracts with which Defendant claims Plaintiff interfered.
The plaintiff has withdrawn this request and, therefore, the motion to compel is denied at moot. (Dkt. #199 at 4.)
Plaintiff's Request for Production 5 states:
*3 Produce the document(s) which identifies who is managing the three clinics in what was Plaintiff's Master Territory that Defendant purchased on December, 2020, as well as the terms and conditions of that management.
Plaintiff argues that such documents would show the value that AFCF placed on the management of its clinics. Plaintiff asserts that he is entitled to obtain a copy of the contract that was entered into when AFCF took over the duties that plaintiff previously performed. (Dkt. #199 at 4.) AFCF argues that the requested information is not relevant and / or disproportionate to the needs of the case. The Court agrees.
The Request for Production asks the defendant to produce “the documents” which identify who is managing the three clinics, but it is unclear what the documents are. Presumably, the request could include any business documents with the individual's name on them. The plaintiff does not articulate how such documents would be relevant especially since the documents are likely to contain additional information. If the plaintiff wants to learn the identity of the individual who is managing the clinics, plaintiff can certainly serve an interrogatory on the defendant or ask a question during a deposition, but it is unclear how documents identifying the individual would be relevant.
Insofar as the motion to compel seeks documents identifying the terms and conditions governing the management of the clinics, the plaintiff has not shown how such documents would be relevant. Although it was in relation to a subpoena served on Thomas Kelly, in a previous ruling the Court found that documents related to the management of the clinics would not be relevant. (Dkt. #180 at 9 and n.6). The instant motion to compel, as to request for production 5, is denied for the same reason.
Plaintiff's Request for Production 11 states:
Produce the Newmark Knight Frank market analysis report referenced in the expert report of John Bise at paragraph 38e.
Defendant, AFCF, produced a document to the plaintiff and represents that it is the only document that defendant's expert reviewed in forming the basis of his expert opinion. Plaintiff has attached an excerpt from the deposition of defendant's expert. The deposition indicates that the document is part of a larger document but does not indicate that the expert witness reviewed the other pages to form his opinion. Although the excerpt generally describes what the larger document is, the excerpt does not indicate what type of information is contained on the pages that the expert did not rely upon or indicate why those other pages are relevant. Similarly, plaintiff's brief fails to articulate or explain how the other pages of the document are relevant.
The plaintiff has the burden of establishing relevance. Bagley v. Yale Univ., 315 F.R.D. 131, 144 (D. Conn. 2016), as amended (June 15, 2016). Given defendant's representation that the expert only relied on the single page that was produced during discovery, and the plaintiff's failure to articulate the substance of the other pages, the Court finds that the plaintiff has failed to show how the other pages are relevant. The plaintiff's motion to compel an additional response to this request for production is denied.
*4 Plaintiff's Request for Production 12 states:
Produce the Duff & Phelps data referenced by your expert John Bise at paragraph 42 of his report.
The defendant responded to this request by stating that the responsive document has been produced. Plaintiff's brief states that plaintiff was unable to locate the Duff & Phelps document and asked the defendant to supply the Bates numbers for the document, but defendant failed to supply it. Defendant's brief states that the document was produced on November 23, 2021, and the Bates number is AFCF #0931. Plaintiff's reply brief states that “defendant is selecting only one page of a document referenced in its expert's report, which is improper for the same reasons referenced in [Request No.] 11, above.” (Dkt. #199 at 5).
The plaintiff has not provided sufficient information to put the document or the expert's testimony in context. Plaintiff has not submitted a copy of the expert's report to the Court, so it is unclear which documents he has “referenced.” Although the plaintiff's reply brief attaches a copy of the document that was produced (dkt. #199, at Exhibit A), the document itself does not answer the inquiry. It is unclear from the document whether Bates No. AFCF #0931 is the “Duff Phelps data” that the expert referenced or only part of the Duff Phelps data. The document has “Duff & Phelps” at the top and there is certainly “data” at bottom of the page. Assuming the plaintiff asserts that there is more to the document, plaintiff has not claimed that the expert purported to rely on other pages of the document, or that the expert otherwise indicated that the other pages (if they exist) might contain relevant information.
As with Request for Production No. 11, the defendant purports to have produced the responsive document. The plaintiff has failed to submit sufficient information for the Court to determine if other relevant documents exist or were reviewed and relied upon by the expert. The motion to compel is denied as to this request for production.
Plaintiff's Request for Production 13 states:
Produce the workbook referenced at document page 426 (and testified to at pages 216-217 of the deposition of Randy Johansen taken on October 13, 2020, Randy Johansen Exhibit 16)-which was described by Mr. Johansen as the accountant analysis of the earnings of the 13 clinics and tier 2 clinics.
Defendant represents, and the plaintiff is unable to dispute, that the workbook does not exist. The Court is told that defendant has performed a second search for the workbook and is unable to locate anything. The Court is constrained to deny the motion to compel as it relates to the workbook. Plaintiff, if they so choose, can certainly argue to the trial judge that there is a potential basis for seeking an adverse inference if plaintiff can establish that the workbook has been destroyed, discarded, or lost by the defendant. However, at this time, given defendant's representations, there are no documents for the Court to order the defendant to produce.
*5 Plaintiff's Request for Production 19 states:
Produce the written, signed agreement between Starboard and New Dimensions (As requested at pages 189-190 of the Mr. Johansen's deposition taken on October 13, 2020).
Defendant, AFCF, asserts that it has searched for documents responsive to this request and such documents do not exist. As with Request No. 13, based on defendant's representation, there are no responsive documents for the Court to order the defendant to produce. However, to the extent that defendant specifically stated that it has no such document in its possession, the Court reminds defendant that it has to produce documents within its custody or control. Although plaintiff's briefs do not assert that the document is within defendant's control[1], the Court reminds defendant that it is obligated to produce documents within its custody or control.
Plaintiff states that “the written agreement between Starboard and New Dimensions relates specifically to the offer for the clinics which AFCF purchased.” It is unclear from the briefs whether the document would contain a combined valuation for multiple clinics or a valuation of the three clinics at issue in this case. If the document contains a valuation for the three specific clinics and the plaintiff can establish that the document was once in defendant's possession but was lost or destroyed during litigation, the plaintiff can certainly ask the trial judge for an appropriate instruction, but at the moment, given the defendant's representation, there are no documents for the Court to order the defendant to produce.
Plaintiff's Request for Production 20 states:
Produce the document for the sale of the franchises containing the signature of Medvest and/or New Dimensions with the transactional attorneys. (As requested at pages 212-213 of Mr. Johansen's deposition taken on October 13, 2020).
Based on defendant's response to Request for Production No. 20, the defendant asserts that all of the information contained in the responsive documents is comingled in the same manner as the information discussed in Request for Production No. 3. The defendant represents that “the MedVest Agreement only contains information regarding the sale of franchised locations in Massachusetts,” and asserts that the locations are irrelevant to plaintiff's claims. (Dkt. #195 at 12). The Court agrees and notes that plaintiff's former clinics were in Connecticut. (Dkt. #180 at 4). The defendant also represents that “the New Dimensions Agreement contains information regarding the seven locations, four of which are unrelated to plaintiff's claims and [defendant) is unable to redact the information related to the three relevant clinics.” (Dkt. #195 at 12). As a result, based on the same reasoning that the Court denied the motions to compel responses to Request for Production No. 3, the motion to compel a response to Request No. 20 is denied.
Conclusion
*6 For the foregoing reasons, Plaintiff's Motion to Compel (Dkt. #191) is DENIED as articulated in this ruling. As plaintiff's motion has been denied the Court will not grant plaintiff's request for Attorneys’ fees related to this motion.
This is not a Recommended Ruling. This is a discovery ruling or order which is reviewable pursuant to the “clearly erroneous” statutory standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. R. 72.2. As such, it is an order of the Court unless reversed or modified by a district judge upon motion timely made.
SO ORDERED this 30th day of August, 2022 at Hartford, Connecticut.
Footnotes
Plaintiff's reply brief states that this is a “signed agreement made by an outside party to purchase 3 clinics in Plaintiff's Master Territory which Defendant refused to approve, but instead purchased those clinics itself.” (Dkt. #199 at 6).