United States District Court, E.D. Louisiana
FIRST AMERICAN BANKCARD, INC.
SMART BUSINESS TECHNOLOGY, INC. ET AL.
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
an action asserting various state law claims pending in this
court under the court's diversity of citizenship
jurisdiction. Plaintiff, First American Bankcard, Inc., seeks
damages, alleging that defendants provided it with deficient
and defective services relating to the design, manufacture
and hosting of software products for use by plaintiff in
processing cash advance and check cashing at casinos.
filed a Motion to Compel Discovery and for Reasonable
Expenses against one of the defendants, Smart Business
Technology, Inc. Record Doc. No. 136. The motion seeks
additional responses to plaintiff's Interrogatories Nos.
6, 8, 10, 13, 14 and 15 and Requests for Production Nos. 3,
6, 7, 36, 37, 42 and 43. Defendant filed a timely opposition
memorandum, Record Doc. No. 145, and plaintiff was permitted
to reply. Record Doc. No. 152. Having considered the motion
papers, the record and the applicable law, IT IS ORDERED that
the motion is GRANTED IN SUBSTANTIAL PART AND DENIED IN
motion is granted as to Interrogatories Nos. 6, 8, 10 and 15,
and all objections are overruled, subject to the limitation
contained herein. Specifically, defendant has offered nothing
sufficient to support or establish its objections on grounds
of disproportionality and undue burden and expense
outweighing the likely benefit of this highly relevant
discovery. The amendment to Fed.R.Civ.P. 26(b)(1) that
incorporated the proportionality component into the threshold
definition of the scope of discovery
does not place on the party seeking discovery the
burden of addressing all proportionality
considerations. Nor is the change intended to permit the
opposing party to refuse discovery simply by making a
boilerplate objection that it is not proportional. The
parties and the court have a collective responsibility to
consider the proportionality of all discovery and consider it
in resolving discovery disputes. . . . A party requesting
discovery, for example, may have little information about the
burden or expense of responding. A party requested to provide
discovery may have little information about the importance of
the discovery in resolving the issues. . . . A party claiming
undue burden or expense ordinarily has far better information
- perhaps the only information - with respect to that part of
Federal Civil Judicial Procedure and Rules at p. 150
(quoting Advisory Committee Notes to the 2015 Amendments to
the Federal Rule of Civil Procedure) (Thomson Reuters 2017)
(emphasis added). In this instance, defendant has offered
nothing more than a boilerplate proportionality objection,
without providing any information concerning burden or
expense that the court would expect to be within
defendant's own knowledge.
ORDERED, however, in the exercise of the court's
responsibility to consider the proportionality of all
discovery, that the time period as to which Interrogatories
Nos. 6 and 15 must be answered is limited to the time period
alleged in the complaint as the period of the business
relationship between the parties, June 8, 2009 to the date
when plaintiff “elected to permanently end its
relationship” with defendant. Record Doc. No. 1
(Complaint) at ¶¶ 18, 33.
motion is granted as to Interrogatories Nos. 13 and 14. All
objections are overruled. The limited responsive information
provided in response to these interrogatories is deficient.
Again, defendant has offered nothing more than a boilerplate
proportionality objection, without providing any information
concerning burden or expense that the court would expect to
be within defendant's own knowledge. In addition, the
vague reference to “responsive Documents” that
defendant says it will produce fails to comply with the
specificity requirements of Fed.R.Civ.P. 33(d)(1). Defendant
must answer these interrogatories by providing all responsive
information within its corporate knowledge.
addition, I note that the copy of interrogatory answers
provided to me in connection with this motion does not
include the verification of interrogatory answers, sworn
under oath, required by Fed.R.Civ.P. 33(b)(1)(B), (3) and
(5). The required verification must be provided.
the disputed requests for production, the motion is granted
as to Requests for Production Nos. 3, 6, 7, 36, 37 and 42.
The objections are overruled because they are absurd in this
context. A discovery ruling is interlocutory and
non-dispositive. The requested materials are clearly relevant
and within the scope of discovery. The fact that they are
ordered produced for discovery purposes in no way pretermits
the court's resolution of the ultimate, dispositive
issues defendant objects are “disputed.” Almost
all claims or defenses as to which discovery is sought are
disputed. A protective order sufficient to address
defendant's concerns about the use to which these
materials may be put is already in place, Record Doc. No.
139, and these materials may be produced subject to that
protective order, if appropriate. Defendant must provide new
written responses to each request clearly stating, without
objection, either that all responsive materials in its
possession, custody or control are being produced or that it
has no responsive materials in its possession, custody or
first time in its opposition memorandum, though not
in its Rule 34(b) written responses and/or objections to
these requests, defendant argues that it “does not have
possession of the requested data” because it “is
no longer a going concern” and, upon its business
demise, the materials “remained in the hands of [its]
former owners and top officers, co-defendants Fuente and
Romero.” Record Doc. No. 145 at p. 4 (emphasis
added). This argument is unpersuasive for two reasons.
because defendant did not assert this argument in its Rule
34(b) written responses, the objection has been waived.
See Poulos v. Naas Foods, Inc., 959 F.2d 69, 74 (7th
Cir. 1992) (party “waived any objection to production
by failing to object when disclosure was due”);
Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8,
10, 12-13 (1st Cir. 1991) (objections to requests for
production were waived by failure to make timely objections);
McLeod, Alexander, Powell & Apffel v. Quarles,
894 F.2d 1482, 1484 (5th Cir. 1990) (vague objections lacking
in specificity held invalid); In re United States,
864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general
rule, when a party fails to object timely to interrogatories,
production requests, or other discovery efforts, objections
thereto are waived.”); accord Autotech Techs. Ltd.
P'ship v. Automationdirect.Com, Inc., 236 F.R.D.
396, 398 (N.D. Ill. 2006); Brown-Stahlman v. Charter
Trust Co., No. 04-CV-322-SM, 2006 WL 680874, at *1
(D.N.H. Mar. 16, 2006); Banks v. Office of Senate
Sgt.-at-Arms, 222 F.R.D. 7, 21 (D.D.C. 2004).
a party's obligation to produce materials in the Rule 34
production and inspection process extends beyond mere
possession. Defendant's obligation is to produce such
materials or electronically stored information