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Mr. Mudbug, Inc. v. Bloomin' Brands, Inc.

United States District Court, E.D. Louisiana

January 11, 2017


         SECTION: “H” (4)



         Before 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.

         I. Background

         This 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.

         At this 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.

         In 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.

         II. Standard of Review

         Discovery 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. 33(a)(2); 34(a).

         Federal 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 benefit.” Id.

         Under 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.

         Federal 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. 37(a)(4).

         In 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).

         III. ...

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