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Parkcrest Builders, LLC v. Housing Authority of New Orleans

United States District Court, E.D. Louisiana

September 19, 2017


         SECTION: “J” (4)



         Before the Court is a Motion to Compel (R. Doc. 347) filed by Housing Authority of New Orleans (“HANO”), seeking an order from the Court to compel Intervenor Liberty Mutual Insurance Company (“Liberty Mutual”) to fully respond to its Requests for Production of Documents. The motion is opposed. R. Doc. 352. The motion was submitted on August 30, 2017. However, HANO requested that the Court expeditiously consider their Motion to Compel (R. Doc. 339), which the Court granted, setting oral argument on August 14, 2017 (R. Doc. 346). For the following reasons, the motion to compel is DENIED.

         I. Background

         A. The Complaint

         This lawsuit was filed by the Plaintiff, Parkcrest Builders, LLC, seeking a Declaratory Judgment and Judgment for Damages in connection with a construction contract dispute between itself, as the original contractor, and Defendant HANO, the property owner. R. Doc. 21, p. 2. The Plaintiff alleges that, on March 4, 2013, it entered into a contract with Defendant for the construction of the Florida Avenue: New Affordable Housing Units (“the Florida Avenue Housing Project”) for the amount of $11, 288, 000.00. R. Doc. 1, p. 3. During work on the Project, there were a number of delays because of disputes between HANO and Entergy, omissions in the design documents and revisions to the design documents. R. Doc. 1, pp. 4-5. As a result of the difficulty in completing the project, Parkcrest was terminated as the contractor, and bond insurer, Liberty Mutual, was demanded by HANO to complete the Florida Avenue Housing Project. R. Doc. 28-1, p. 2. Liberty Mutual, satisfied its obligation pursuant to the performance bond and renamed Parkcrest as the completion contractor after executing a Takeover Agreement with HANO. Id. As a result, Liberty Mutual intervened in this lawsuit (R. Doc. 32) and HANO counterclaimed against Liberty Mutual, claiming Liberty Mutual caused the delays and also breached the construction contracts (R. Doc. 37).

         B. The Motion

         HANO filed the subject motion, seeking to compel Liberty Mutual to produce certain documents in its possession, namely (1) responsive documents to its request for production of documents maintained by Meridian Consulting Group/SourceHOV and (2) documents improperly withheld due to the designation of privilege, which Liberty Mutual has identified as consultant work product of Mr. Jack Lenhart, who is listed as a witness on Liberty Mutual's Witness List. R. Doc. 347. Specifically, during Mr. Jack Lenhart's deposition, HANO asserts that it requested the cost-of-completion analysis on the Florida Avenue Housing Project, as well as notes and other documents contained in his project file developed and maintained during his time on the project. R. Doc. 347-1, p. 1. In addition, HANO also seeks the award of “expenses” pursuant to Fed. R. Civ. P 37(a)(5)(A). Id.

         In opposition, Liberty Mutual contends that HANO's request is not timely because it waited until after the discovery period closed and trial of the proceeding was approaching. R. Doc. 352. Liberty Mutual further contends that no good cause exists pursuant to Federal Rule of Civil Procedure (“Rule”) 16, such that the motion should be denied. Id. at p. 1. Liberty Mutual also contends that the Motion to Compel is moot, as the documents HANO requests have already been produced, and further, pursuant to the privilege log, documents were subject to the consulting expert privilege. Id. at pp. 2-3.

         II. Standard of Review

         Rule 34 allows a party to request the production of “any designated documents or electronically stored information” or “any tangible things.” Moreover, Rule 34 allows a party to ask request production to the extent of Rule 26(b). Fed.R.Civ.P. 34(a).

         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. . . .” As such, Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Also, Rule 26(b)(1) specifies that discovery must be “proportional to the needs of the case, considering the importance 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.”

         Rule 37(a) allows a party in certain circumstances to move for an order compelling discovery from another party. If the motion is granted, Rule 37 provides that the court must, after giving an opportunity to be heard, require the party whose conduct necessitated the motion to pay the movant's reasonable attorneys' fees.

         Moreover, Rule 16(b) limits changes in the deadlines set by a scheduling order “only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). To determine if good cause exists, the Court should consider: (1) the movant's explanation for its failure to timely act; (2) the importance of the motion; (3) the potential prejudice in allowing the motion; and (4) the availability of a continuance to ...

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