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Donachricha v. Dolgencorp, LLC

United States District Court, M.D. Louisiana

July 21, 2015

REBA M. DONACHRICHA AND GEORGE DONACHRICHA, JR
v.
DOLGENCORP, LLC d/b/a DOLLAR GENERAL

ORDER

RICHARD L. BOURGEOIS, Jr., Magistrate Judge.

Before the court is a Motion to Compel filed by Defendant and Third-Party Plaintiff Dolgencorp, LLC d/b/a Dollar General ("Dollar General"). (R. Doc. 39). Dollar General seeks to compel Third-Party Defendant Coca-Cola Bottling Company United, Inc. ("Coca-Cola Bottling") to fully respond to certain interrogatories and requests for production. The motion is opposed. (R. Doc. 40). Dollar General has filed a Reply. (R. Doc. 43). For the following reasons, the Motion to Compel is GRANTED in part and DENIED in part.

I. Background

Plaintiff initiated this action against Dollar General in state court, claiming that she slipped and fell in a puddle next to a Coca-Cola cooler in a Dollar General store. (R. Doc. 1-2 at 2-3). Dollar General removed the action on August 14, 2014. (R. Doc. 1)

On December 10, 2014, Dollar General filed a Third-Party Complaint naming Coca-Cola Bottling as third-party defendant. (R. Doc. 8). Dollar General alleges that prior to the accident, on December 9, 2008, it had entered into a "Beverage Agreement" with an entity named Coca-Cola Enterprises, Inc. ("Coca-Cola Enterprises") and its "Participating Bottlers." (R. Doc. 8 at 3). Dollar General alleges that Coca-Cola Bottling is a Participating Bottler pursuant to the Beverage Agreement. (R. Doc. 8 at 3). Dollar General further alleges that the Beverage Agreement requires Coca-Cola Bottling "to defend, indemnify, and hold harmless [Dollar General] from and against all third party claims related to injury arising out of the negligence of Coca-Cola Bottling." (R. Doc. 8 at 3).

The court's scheduling order, which was entered on November 25, 2014, set non-expert discovery to close on June 30, 2015. (R. Doc. 5). Discovery is now closed.

Dollar General propounded the discovery at issue on April 23, 2015. (R. Doc. 39-2). Coca-Cola Bottling did not provide responses within 30 days of receiving the discovery requests. Dollar General did not move to compel production at that time the responses were due. On June 29, 2015, the day before the close of discovery, counsel for Dollar General sought responses to the outstanding discovery requests. (R. Doc. 39-3). Dollar General represents that the parties then held a telephone conference on June 30, 2015 in which counsel for Coca-Cola Bottling represented that responses would be provided later that day, and that Coca-Cola Bottling was objecting to Interrogatory Nos. 7 and 9, and Requests for Production Nos. 1, 3, and 4. (R. Doc. 39-1 at 4). According to Dollar General, these interrogatories and requests for production bear upon whether Coca-Cola Bottling is a "Participating Bottler" and subject to the "Beverage Agreement." (R. Doc. 39-1 at 2-3).

After the telephone conference, and apparently prior to receiving any responses, Dollar General filed the instant motion. (R. Doc. 39). Dollar General submits a Rule 37(a)(1) certificate with its motion stating that its counsel's e-mail request for the documents on June 29, 2015, and the telephone conference held on June 30, 2015, satisfy the good faith meet-and-confer requirements of Rule 37(a)(1). Coca-Cola does not argue that Dollar General did not satisfy its duties pursuant to Rule 37(a)(1) prior to filing the instant motion to compel.

Coca-Cola Bottling provided responses to the requested discovery on June 30, 2015. (R. Doc. 40-1). As stated in the telephone conference, Coca-Cola Bottling objected to Interrogatory Nos. 7 and 9, and Requests for Production Nos. 1, 3, and 4. Coca-Cola Bottling did not provide substantive answers to the foregoing interrogatories or produce any documents responsive to the foregoing requests for production.

II. Law and Analysis

A. Legal Standards

Rule 26(b)(1) of the Federal Rule of Civil Procedure provides that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." To be relevant, "information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The scope of discovery is not without limits, however, and the court may protect a party from responding to discovery when: (i) it is unreasonably cumulative or duplicative, or obtainable from some other less-burdensome source; (ii) the party seeking discovery has had the opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2).

Rule 33 of the Federal Rules of Civil Procedure provides for the service of written interrogatories. A party seeking discovery under Rule 33 may serve interrogatories on any other party and the interrogatory "may relate to any matter that may be inquired into under Rule 26(b)." Fed.R.Civ.P. 33(a)(2). "If the answer to an interrogatory may be determined by examining... a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries." Fed.R.Civ.P. 33(d).

Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents and tangible items. A party seeking discovery must serve a request for production on the party believed to be in possession, custody, or control of the documents or other evidence. Fed.R.Civ.P. 34(a). The request is to be in writing and must set forth, among other things, the desired items with "reasonable particularity." Fed.R.Civ.P. 34(b)(1)(A).

Rules 33 and 34 provide a party with 30 days after service of the discovery to respond or object. See Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A). If a party fails to respond fully to discovery requests made pursuant as to Rules 33 and 34 in the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move to compel disclosure and for appropriate sanctions under Rule 37. An "evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond." Fed.R.Civ.P. 37(a)(4).

A party may withhold information which would be otherwise discoverable on the basis of privilege. Fed.R.Civ.P. 26(b)(1). A party withholding information on the basis of privilege must expressly make the claim and describe the ...


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