United States District Court, E.D. Louisiana
MR. MUDBUG, INC.
BLOOMIN' BRANDS, INC.
ORDER AND REASONS
WELLS ROBY, UNITED STATES MAGISTRATE JUDGE
the Court is a Motion to Compel (R. Doc. 45) filed by the
Defendant, Bloomin' Brands, Inc.
(“Defendant”), seeking an order from the Court to
compel the Plaintiff, Mr. Mudbug, Inc.
(“Plaintiff”), to amend its discovery responses.
The motion is opposed. R. Doc. 57. The motion will be heard
on January 11, 2017.
action was removed from the 24th Judicial District
Court on October 19, 2015. R. Doc. 1. The Plaintiff alleges
that during late 2007 to early 2008 it entered into a
contractual relationship with the Defendant under which the
Defendant ordered food products and services from the
Plaintiff. R. Doc. 6, p. 2. In 2008, the Plaintiff alleges
that the Defendant required the Plaintiff to expand its
facilities in order to handle the increased volume of food
product and service requests. R. Doc. 6, p. 3. In 2011, after
the Defendant allegedly awarded the Plaintiff another
contract for salad dressing, which resulted in the Plaintiff
embarking on another $16.8 million expansion. Id. In
the following years, the Defendant began to allegedly divert
business from the Plaintiff, eventually withdrawing from the
salad dressing contract in its entirety by 2013. Id.
at p. 4. By December of 2014, the business relationship
between the parties had terminated in its entirety.
Id. As a result in 2015, the Plaintiff filed a state
court petition for an amount on an open account on the
Plaintiff. The Defendant removed and asserted a counterclaim
of breach of contract to supply quality products. The
Plaintiff then amended its complaint to add claims for breach
of contract and detrimental reliance. R. Doc. 6. The
Plaintiff also asserted bad faith claims, but those claims
have been dismissed. See R. Doc. 30.
time, the Defendant has filed a motion to compel. The
Defendant initially served two sets of discovery requests on
November 6, 2015 and January 8, 2016. R. Doc. 45-1, p. 2. The
Plaintiff provided responses on December 6, 2015 and February
15, 2016, respectively. Id. at p. 3. After Defendant
substituted counsel on August 26, 2016, Defendant's
current counsel noted a number of deficiencies. In
particular, the Defendant asserts that the Plaintiff has not
identified responsive documents for each request and that the
Plaintiff has not produced ESI information in accordance with
Federal Rule of Civil Procedure 34(b)(2)(E). R. Doc. 45-1, p.
3-5. The Defendant states that it attempted to resolve these
matters with the Plaintiff by sending a letter on November 7,
2016, calling on November 14, 2016, and sending an additional
email on November 14, 2016. Id. at p. 3. However,
the Defendant states that the Plaintiff did not respond to
any of the Defendant's request for telephone conferences
to discuss these matters. As such, the Defendant filed the
instant motion. Id.
response to this motion, the Plaintiff argues that the
Defendant did not satisfy its obligation to meet and confer
because it argues that Plaintiff's counsel informed
Defendant that it need to defer any discovery conference
until after consulting with the Plaintiff about the
voluminous number of documents eligible for discovery. R.
Doc. 57, p. 2. The Plaintiff also argues that because the
motions come nearly one year after the discovery responses
were served that the motion is untimely. Id. at p.
3. The Plaintiff also states that it has addressed the
Defendant's concern regarding the production of ESI as it
has provided the Defendant with a thumb drive that can be
fully utilized by the Defendant. Id. at p. 2-3.
Standard of Review
of documents, electronically stored information, and things
is governed by Federal Rule of Civil Procedure 34. Rule 34
allows a party to request the production of “any
designated documents or electronically stored
information” or “any tangible things.”
Id. Similarly, Rule 33 allows a party to serve
another party written interrogatories which “must, to
the extent it is not objected to, be answered separately and
fully in writing under oath.” Fed.R.Civ.P. 33(b)(3).
Both Rule 33 and 34 allow a party to ask interrogatories and
request production to the extent of Rule 26(b). Fed.R.Civ.P.
Rule of Civil Procedure (“Rule”) 26(b)(1)
provides that “[p]arties may obtain discovery regarding
any non-privileged matter that is relevant to any party's
claim or defense ..... ” Rule 26(b)(1) specifies that
“[i]nformation within the scope of discovery need not
be admissible in evidence to be discovered.” Rule
26(b)(1) also specifies that discovery must be
“proportional to the needs of the case, considering the
important 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
Rule 26(b)(2)(C), discovery may be limited if: (1) the
discovery sought is unreasonably cumulative or duplicative,
or is obtainable from another, more convenient, less
burdensome, or less expensive source; (2) the party seeking
discovery has had ample opportunity to obtain the discovery
sought; or (3) the burden or expense of the proposed
discovery outweighs its likely benefit.
Rule of Civil Procedure 37 provides sanctions for failure to
cooperate in discovery. Rule 37(a) allows a party in certain
circumstances to move for an order compelling discovery from
another party. In particular, Rule 37(a)(3)(b)(iii)-(iv)
allows a party seeking discovery to move for an order
compelling an answer or production of documents where a party
“fails to answer an interrogatory” or
“fails to produce documents.” An “evasive
or incomplete” answer or production is treated the same
as a complete failure to answer or produce. Fed.R.Civ.P.
addition to alleging that the responding party has failed to
properly cooperate with discovery, a motion to compel under
Rule 37(a) must also “include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.” Fed.R.Civ.P. 31(a)(1).