United States District Court, E.D. Louisiana
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
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
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).
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
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.
Standard of Review
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).
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.”
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.
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 ...