I. INTRODUCTION

*1 Plaintiffs, the funds collecting employee benefit contributions (“the Funds”), sued Laramie Enterprises, Inc., and Laramie filed both a counterclaim and a third-party complaint against Great Lakes Fabricators & Erectors Association. ECF No. 1; ECF No. 7; ECF No. 27. The Honorable Shalina D. Kumar referred the case to the undersigned for all non-dispositive pretrial matters under 28 U.S.C. § 636(b)(1)(A). ECF No. 69. The Funds and Great Lakes move the Court to sanction Laramie, including with the dismissal of Laramie's second amended counterclaim and third-party complaint. ECF No. 27; ECF No. 63; ECF No. 83; ECF No. 92. The Court held a hearing on December 17, 2024, and recommends that Laramie's second amended counterclaim and third-party complaint be dismissed, and that other sanctions described below be imposed.

II. BACKGROUND

In August 2024, the Funds moved to compel the depositions of 11 witnesses. ECF No. 63. The Funds explained that they asked Laramie in July 2024 to provide dates for the depositions but heard nothing, so the Funds noticed the depositions for dates in August 2024. ECF No. 63, PageID.884-885; ECF No. 63-4. The next week, the Funds' attorney, Jacquelyne Zolynsky, emailed Laramie's attorneys asking for confirmation that the depositions would go forward. Zolynsky wrote, “Given that we had to set these depositions sua sponte after you failed to provide dates, we need confirmation that they are going forward as scheduled.” ECF No. 63-4, PageID.904.

Defense counsel Bryan Kontry responded that “[t]he depositions cannot go forward until the necessary documents are produced.” Id., PageID.903. Kontry said that he was available for a meet and confer. Id. Zolynsky replied that she was available to meet and confer, but asked for deposition dates so that they could be re-noticed. Id. She also noted that Laramie's meet and confer “correspondence failed to actually identify which documents Laramie believes the Funds failed to produce,” so the meet and confer “may be helpful in that regard.” Id. Zolynsky accurately described Laramie's August 1, 2024 meet and confer correspondence; it included a list of discovery requests that the Funds allegedly answered inadequately but specified no missing documents:

ECF No. 63-2, PageID.894.

Kontry and Zolynsky conversed on August 16, 2024. Kontry emailed Zolynsky later that day saying that Zolynsky refused “to provide non boilerplate answers to [Laramie's] discovery requests,” so Laramie would file a motion. ECF No. 63-4, PageID.902. Zolynsky responded that their discussion “did not, in any way resemble a conversation.... Rather than actually having a meet and confer, you raised your voice and refused to let me finish a sentence.” Id. She denied that the Funds' discovery answers, which had been served four and a half months earlier, were boilerplate, and she emphasized that discovery was set to close two weeks later. Id. Zolynsky continued, “I was hoping we could sort all this out during our conversation today, but instead you hung up on me for absolutely no reason.” Id. Even so, she was “still willing to have a respectful and professional conversation about these issues.” Id.

*2 Kontry responded that their conversation that day had been only about the Funds' allegedly inadequate discovery responses and that Zolynsky could schedule another time to discuss anything else. ECF No. 63-4, PageID.901. Thus, from his view, counsel had no meet and confer about the depositions. Kontry stressed that Laramie was entitled to discovery responses without boilerplate objections and to know whether the Funds withheld any documents pursuant to the objections. Id. Kontry concluded, “Due to your mischaracterization of our conversation and your claim that you are confused and/or don't understand what is being requested, a written response is necessary.” Id. Kontry did not specify any mischaracterizations Zolynsky had made about their conversation.

The Funds moved to compel the depositions and Laramie moved to compel complete discovery responses. ECF No. 63; ECF No. 66. In Laramie's motion, it repeated its refusal to schedule depositions until the Funds supplemented their discovery responses. “Meaningful and relevant depositions cannot proceed without full and complete responses to Laramie's discovery requests.” ECF No. 66, PageID.947 (emphasis in original).

In late August 2024, after the parties filed their motions to compel, Zolynsky emailed Kontry to try to address Laramie's complaints about the sufficiency of the Funds' discovery answers. She wrote, “It is my honest belief that we are not withholding documents and that all responsive documents have been provided. However, as I stated before, I have a few questions about your requests. Do you have time to discuss tomorrow or Friday?” ECF No. 72-1, PageID.1060. Kontry refused to clarify what he believed the Funds had not produced: “I'd be happy to have a discussion with you as soon as you provide proper written discovery responses.” Id.

The Court held a status conference on October 1, 2024 to try to resolve the discovery disputes. As all counsel agree, this Court emphasized during the status conference that Laramie had no right to condition its participation in depositions on its satisfaction with the Funds' discovery responses. ECF No. 83, PageID.1083; ECF No. 92, PageID.1304; ECF No. 103, 1441-1442. The Court told the Funds that its objections to Laramie's discovery requests were boilerplate and failed to specify whether it withheld documents pursuant to its objections.

To give the parties a chance to resolve their disputes, the Court set another status conference for November 2024, extended the discovery deadline to December 2, 2024, and extended the dispositive motions cutoff to January 2, 2025. ECF No. 77. But at the November status conference, counsel reported that they had “made no progress toward resolving their discovery disputes.” ECF No. 80. The Court thus scheduled the December hearing on the motions and ordered the parties to submit supplemental briefs “targeting developments since the original motions were filed.” Id. And the “Court warned counsel for the second time that they and the parties could face sanctions under Federal Rule of Civil Procedure 37 and the Court's inherent authority, including an involuntary dismissal or default judgment, if the Court finds that they have violated the rules of discovery or prior court orders.” Id.

The Funds filed a supplemental brief to their motion to compel depositions, and Great Lakes moved for sanctions against Laramie related to the Funds' deposition requests. ECF No. 83; ECF No. 92. Laramie filed an update to its motion to compel. ECF No. 86, PageID.1197-1198; ECF No. 86-1; ECF No. 86-2.

Documents attached to the supplemental briefing reveal the turn of events after the October 2024 status conference. On October 16, 2014, Zolynsky emailed supplemental responses to Laramie's requests for production of documents. ECF No. 86-1. The Funds objected that many of Laramie's requests were not described with reasonable particularity, requiring the Funds to guess what Laramie sought. Id. On relevance and burden grounds, the Funds objected to requests for “all communications,” “all audits,” and “all” benefit contribution reports for “all” of the Funds' contractors from June 1, 2018 to the present. ECF No. 86-1. The Funds explained, “As Laramie is aware, there are hundreds of employers that submit contributions to the Funds on a regular basis. The burden and expense of producing the requested documents would be enormous on the funds and its participants and far outweigh their likely benefit.” Id., PageID.1207-1209. Thus, the Funds withheld documents related to other contractors. Id. The Funds denied withholding any other non-privileged documents. ECF No. 86-1.

*3 The next day, on October 17, 2024, the Funds sent Laramie deposition notices for the first week of November 2024. ECF No. 83-2. In an email from the same day, Zolynsky asked Laramie's counsel to “confirm the appearances of these witnesses at your earliest convenience.” ECF No. 83-3. Kontry did not write back until October 30, 2024 to state that they were available for Michael Laramie's deposition on November 13, 2024, but had “scheduling conflicts with all of the other dates that were unilaterally picked.” Id. Kontry promised to provide dates of availability for the remaining depositions, id., but the Court sees evidence only of Laramie serving notices for depositions it sought.

Zolynsky responded the next day, October 31, stating the Funds could not agree to adjourn the depositions without confirming new dates. ECF No. 83-4, PageID.1136. She complained that Laramie had waited two weeks to report that it had scheduling conflicts, so the Funds did not keep open other dates in November. Id. Zolynsky suggested that the parties proceed with at least a few depositions as time was of the essence. Id. She concluded by asking Kontry to inform her of his availability within the next few hours. Id.

Kontry's flippant response, sent 15 minutes later, evidences that he chose gamesmanship over cooperative discovery. First, pretending that he had not been the one to resist conferring about discovery and deposition dates, he wrote, “This is what happens when you unilaterally choose dates.” ECF No. 83-5, PageID.1139. Then, despite Zolynsky asking Kontry to forward dates of his availability minutes earlier, Kontry pretended that Zolynsky would “not agree to coordinate dates,” forcing him “to file objections to all the currently scheduled depositions.” Id. And Kontry pretended that he had the authority to withhold depositions until Laramie was satisfied with the Funds' answers to discovery requests. “Also, your supplemental discovery is inadequate. We cannot proceed with depositions until the Funds responds [sic] in good faith.” Id.

In her exasperated reply, Zolynsky stated:

ECF No. 83-6, PageID.1143.

On the same day, October 31, Laramie sent a summary of the alleged inadequacies in the Funds' supplemental responses to the request for production of documents. ECF No. 86-2. Recall that the Funds' supplemental responses were served two weeks earlier. ECF No. 86-1. In its summary, Laramie refused to pose more particularized requests. For example, it emphasized, “The request asks for ALL documents signed by Laramie”; “The request asks for ALL EXECUTED VERSIONS OF THE Collective Bargaining Agreement that apply or applied from January 1, 2016”; and “The Funds are assuming limitations to the scope of the response and stating that the scope wasn't defined. The scope was perfectly defined—ALL communications regarding the 2018 Memorandum of Understanding—regardless of the recipient, the sender, or the time it was issued.” ECF No. 86-2; PageID.1212-1213. Addressing the Funds' objection to relevance about documents related to other contractors, Laramie claimed that those documents would show a “pattern of action by The Funds amongst all contractors.” Id., PageID.1213. But Laramie does not explain how any such pattern of action would be relevant to legal issues nor how its request for all documents related to all other contractors is proportional to the needs of the case. Laramie may not have considered the scope of discovery under Federal Rule of Civil Procedure 26(b)(1); it cited Michigan Court Rule 2.313 as governing the discovery. ECF No. 86-2.

*4 Kontry's unproductive and insulting tone of Laramie's summary is worth noting. He wrote that Zolynsky was “struggling to comprehend even the most basic of words and sentence structures to properly answer the requests.” Id., PageID.1212-1213. Kontry then “assist[ed]” her by citing dictionary definitions of the words “documents,” “membership,” and “notification.” Id., PageID.1212-1213. He wrote that “[a]ny minimally intelligent person would understand this request.” Id., PageID.1213. The tone of the summary and Kontry's flippant comments in emails lend credence to Zolynsky's claim that Kontry raised his voice, cut her off, and hung up during their attempted meet and confer.

Still trying to secure the depositions, Zolynsky forwarded new notices on November 6, 2024, for depositions to take place on dates from November 13, 2024 to November 21, 2024. ECF No. 83-7. Kontry waited until November 12, 2024 to write, “As I said before, we need more than a week or two to coordinate our office schedule and client's schedule for depositions.” ECF No. 83-8, PageID.1179. This was more pretense, as the November 6 deposition notices were served “more than a week or two” before the dates set forth in the notices. Id. In a truly audacious move, Kontry then listed witnesses that he sought to depose in the first two weeks of December, though discovery closed on December 2. Id. And on November 18, 2024, Kontry forwarded notices of four depositions, all to take place two weeks later, on December 2, 2024, contradicting his earlier position that Laramie required more than two weeks' notice to schedule depositions. ECF No. 88-4. The Court temporarily granted the Funds' emergency motion for protective order. ECF No. 91.

In sum, though the Funds have pursued the depositions of nearly a dozen witnesses since July 2024, Laramie obstructed all but one from going forward during the discovery period.

The Funds ask that the Court dismiss Laramie's second amended counterclaim; order Laramie to pay the Funds' reasonable expenses for bringing their motion to compel; prohibit Laramie from offering the testimony of ten witnesses in dispositive motions practice or at trial[1]; and to compel Laramie to produce the witnesses within 30 days. ECF No. 83, PageID.1091-1092. In its motion for sanctions, Great Lakes concurs with the Funds' requests and asks the Court to also dismiss Laramie's third-party complaint. ECF No. 92, PageID.1312-1313.

III. ANALYSIS

A district court may sanction parties with entry of default judgment for discovery abuses. KCI USA, Inc. v. Healthcare Essentials, Inc., 801 F. App'x 928, 933 (6th Cir. 2020) (citing Rule 37(b)(2)(A)(vi)).

Courts consider four factors in this analysis:

Id. at 934. Although no one factor is dispositive, bad faith is the preeminent consideration. Id.; United States v. Reyes, 307 F.3d 451,458 (6th Cir. 2002); Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008). Dispositive relief is proper against a party who has engaged in contumacious conduct, perverse resistance of authority, or stubborn disobedience. Id. And a Court may impose dispositive relief as a sanction when “no alternate sanction would protect the integrity of the pre-trial proceedings.” Buck v. U.S. Dept. of Agriculture, Farmers Home Admin., 960 F.2d 603, 608 (6th Cir. 1992).

*5 Applying the factors described in KCI, the Court finds that the motions for sanctions against Laramie should be granted.

As noted, the most important consideration is whether Laramie “acted in willful bad faith.” KCI, 801 F. App'x at 934. Courts find willful bad faith when the party “display[s] either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings.” Schafer, 529 F.3d at 737. Here, Laramie either intended to thwart the depositions of all but one witness or acted with reckless disregard.

As the Court repeatedly told Laramie, it had no right to condition the depositions on its satisfaction with the Funds' discovery responses. Rule 26(d)(3) provides that unless parties stipulate or the Court orders otherwise, “(A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.” Nothing in the rule “contemplates sequencing discovery for tactical advantage to one party over another.” Avila v. Target Corp., No. 21-CV-907 (PKC)(JMW), 2021 WL 4311142, at *3 (E.D.N.Y. Sept. 22, 2021); see also Echon v. Sackett, No. 14-CV-03420-PAB-NYW, 2016 WL 1732708, at *2 (D. Colo. May 2, 2016) (finding that depositions and interrogatories “are complementary, rather than alternative or exclusive,” and may be taken “in any sequence”). Even after the Court emphasized that Laramie had no right to withhold the depositions, Kontry refused to “proceed with depositions until the Funds responds in good faith.” ECF No. 83-5, PageID.1139.

Despite insisting that it needed more discovery from the Funds before depositions could proceed, Laramie did not act with urgency when pursing supplemental discovery answers. First, Laramie did not complain about the discovery responses until four and a half months after the Funds served them, and not until after the Funds sought to schedule the depositions. ECF No. 63-4, PageID.902. Laramie then forwarded a meet-and-confer letter with no specific objections. ECF No. 63-2, PageID.894. Zolynsky requested a “respectful and professional conversation,” but Kontry refused, insisting that Laramie had to move to compel the responses. ECF No. 63-4, PageID.901-902. Laramie then filed a barebones motion claiming that all the Funds' discovery responses were incomplete but identifying only three. ECF No. 66.

Laramie's motion included no analysis about the relevance or proportionality of its discovery requests under Rule 26(b)(1). Id. The Court finds that Laramie waived its requests for relief. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to... put flesh on its bones.”); ECIMOS, LLC v. Nortek Global HVAC, LLC, 736 F. App'x 577, 583-84 (6th Cir. 2018) (same).

And as the Funds noted in their supplemental response to the document requests, Laramie's requests were too broadly posed. The federal rules require that a document request “must describe with reasonable particularity each item or category of items to be inspected.” Fed. R. Civ. P. 34(b)(1)(A). Thus, courts reject document requests that are “unlimited in subject matter and in time, and therefore would sweep in numerous documents that bear no relevance to the claims or defenses raised in this matter.” Mirmina v. Genpact LLC, No. 3:16CV00614(AWT), 2017 WL 2559733, at *3 (D. Conn. June 13, 2017). Courts have long condemned omnibus “any and all” document requests. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 387-88 (2004) (document requests asking “for everything under the sky” were “anything but appropriate”); Transamerica Life Ins. Co. v. Moore, 274 F.R.D. 602, 609 (E.D. Ky. 2011) (“Generally, a discovery request is considered overly broad or unduly burdensome on its face if it ‘(1) uses an omnibus term... and (2) applies to a general category or group of documents or a broad range of information.’ ”) (cleaned up).

*6 After the Funds objected that Laramie did not pose its requests with reasonable particularity, Laramie “made no suggestions for paring the request to focus on the specific types of documents it is seeking.” Design Basics, LLC v. DJW & Assocs. of Michigan, Inc., No. 17-12272, 2019 WL 7584399, at *2 (E.D. Mich. Aug. 6, 2019). Rather, Laramie doubled down on wanting “all” documents and lobbed insults at Zolynsky's intelligence. ECF No. 86-2.[2]

In sum, Laramie has shown no real concern that the Funds have withheld discoverable documents. It posed document requests that were not reasonably particularized; it did not complain about the Funds' responses to the discovery requests for months, and not until the Funds were trying to schedule depositions; and it filed a barebones motion to compel and then failed to pursue a meaningful meet-and-confer or pare its requests. These failures suggest that Laramie's reliance on the Funds' alleged insufficient discovery responses was a mere ruse designed to thwart the Funds' efforts to secure depositions.

The prejudice factor supports the motions for sanctions. “A party is prejudiced when it is unable to secure the information requested and required to waste time, money, and effort in pursuit of cooperation which the opposing party was legally obligated to provide.” Barron v. University of Michigan, 613 F. App'x 480, 485 (6th Cir. 2015) (cleaned up). The Funds diligently sought the depositions since July 2024 but could secure only one before the extended discovery deadline of December 2, 2024. “[I]n cases like this one, where the obstruction prevented the other party from accessing evidence needed” to prosecute the case, default is the appropriate sanction. Grange Mut. Cas. Co. v. Mack, 270 F. App'x 372, 378 (6th Cir. 2008); see also, KCI, 801 F. App'x at 935.

Great Lakes states that it has been equally prejudiced. It says that Laramie's third-party complaint is “predicated on the existence of an alleged contract” that Great Lakes denies exists, and that Laramie has failed to produce. ECF No. 92, PageID.1308-1309; ECF No. 92-3, PageID.1325-1326. Great Lakes requested that Laramie produce the contract, but Laramie responded that only Great Lakes had a copy. ECF No. 92-2, PageID.1320. And when asked in interrogatories about Laramie's claims in its third-party complaint, Laramie responded that it was “in the process of responding” and that “relevant information [would] be provided as soon as it is available.” ECF No. 92-3, PageID.1326. Laramie said that “Gordon ‘Chip’ F. Laramie will provide testimony addressing” Great Lakes' inquiries. Id. So as shown in emails from October 28 and 29, 2024, counsel for Great Lakes planned to attend Chip Laramie's deposition, which was scheduled for November 4, 2024. ECF No. 92-5, PageID.92-5, PageID.1333-1334. Great Lakes thus argues that it has been prejudiced by Laramie's failure to produce Chip Laramie for his deposition.

*7 Laramie complains that Great Lakes lacks standing to seek sanctions because it did not move to compel discovery. ECF No. 94, PageID.1370. But as Great Lakes notes, “[t]he sanctions provisions of Rule 37(b)(2) contain no [ ] standing limitation.” Payne v. Exxon Corp., 121 F.3d 503, 510 (9th Cir. 1997); see also Moreno v. Lindblade, No. 20-13292, 2022 WL 16836334, at *4 (E.D. Mich. Nov. 9, 2022). Under Rule 37(b)(2), the Court may impose sanctions when a party “fails to obey an order to provide or permit discovery.”

Given Laramie's failure to produce the alleged contract between it and Great Lakes, and given Laramie's representation that Chip Laramie's deposition testimony would answer questions posed in Great Lakes' interrogatories, Laramie's failure to produce Chip Laramie for his deposition supports the dismissal of the third-party complaint against Great Lakes.

The third factor addresses whether the Court warned defendants that failure their cooperate could lead to a default judgment. Although an earlier warning is relevant, it is not required when there is evidence of bad faith or contumacious conduct. Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997); Annabel, 2019 WL 2218766, at *5. For the reasons stated, the Court finds that Laramie engaged in bad faith and contumacious conduct.

And Laramie was warned. The Court warned that it had no right to condition its participation in depositions on its satisfaction with the Funds' discovery responses. ECF No. 83; ECF No. 92, PageID.1304; ECF No. 103, 1441-1442. The Court's November 7, 2024 order also “warned counsel for a second time that they and the parties could face sanctions under Federal Rule of Civil Procedure 37 and the Court's inherent authority, including an involuntary dismissal or default judgment, if the Court finds that they have violated the rules of discovery or prior court orders.” ECF No. 80, PageID.1072-1073. Thus, “[n]otice is satisfied.” KCI, 801 F. App'x at 936.

The last factor—whether lesser sanctions have been imposed or considered—supports sanctioning Laramie. The Court may impose dispositive relief as a “first and only sanction,” and it need not “incant a litany of the available lesser sanctions.” Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997). Because Laramie thwarted all but one deposition during the discovery period, dispositive relief is the only sanction that “would protect the integrity of the pre-trial proceedings.” Buck, 960 F.2d at 608.

IV. CONCLUSION

The Court RECOMMENDS that the Funds' and Great Lakes' motions for sanctions should be GRANTED. As requested by the Funds and Great Lakes, the Court should:

*8 Within 14 days of being served with this report and recommendation, any party may serve and file specific written objections to this Court's findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). If a party fails to timely file specific objections, any further appeal is waived. Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). And only the specific objections to this report and recommendation are preserved for appeal; all other objections are waived. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991).

Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must specify precisely the provision of this report and recommendation to which it pertains. Within 14 days after service of objections, any non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response must be concise and proportionate in length and complexity to the objections, but there is otherwise no page limitation. If the Court determines that any objections are without merit, it may rule without awaiting the response.