United States District Court, M.D. Louisiana
IN & OUT WELDERS, INC.
H & E EQUIPMENT SERVICES, INC., ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants' Motion to Compel (R. Doc. 72)
filed on October 30, 2017. The motion is opposed. (R. Doc.
76). Defendants have filed a Supplemental Memorandum (R. Doc.
77) and a Reply (R. Doc. 80).
October 5, 2015, In & Out Welders, Inc.
(“Plaintiff”) brought this class action lawsuit
against H&E Equipment Services, Inc. and H&E
Equipment Exchange, LLC (collectively,
“Defendants” or “H&E”) claiming
that certain Loss Damage Waivers and Environmental Charges
contained in the Defendants' equipment rental contracts
constitute a breach of contract, are a violation of the duty
of good faith and fair dealing, and violate Florida's
Deceptive and Unfair Trade Practices Act. Fla. Stat. §
501.201, et seq. (“FDUTPA”) and
Texas's Deceptive Trade Practices-Consumer Protection
Act, Tex. Bus. & Com. Code § 17.50
(“TDTPA”). (R. Doc. 1 at 3). Plaintiff alleges
that the Loss Damage Waivers and Environmental Charges are
included on pre-printed contracts, and that Defendants
misrepresent the nature and purpose of these fees, which
Plaintiff asserts are solely included to raise profits. (R.
Doc. 1 at 2-3, 10-11).
parties are currently engaged in discovery regarding class
certification issues. (R. Doc. 60; R. Doc. 83).
September 1, 2017, Defendants propounded fourteen
interrogatories and twelve requests for production on
Plaintiff. (R. Doc. 72-2). Plaintiff provided timely
responses. (R. Doc. 72-3; R. Doc. 72-4).
October 5, 2017, defense counsel requested supplemental
responses to Interrogatory Nos. 1, 2, 3, 4, 8, 10, 11, 12,
and 13, and Request for Production Nos. 3, 4, 6, and 7. (R.
October 17, 2017, Plaintiff's counsel responded by
stating that information sought regarding
“Plaintiff's business dealings with other rental
companies” in Interrogatory Nos. 1, 2, 3, 4, and 11,
and Request for Production Nos. 6 and 7 is irrelevant. (R.
Doc. 72-6 at 1). Plaintiff's counsel clarified
Plaintiff's response to Interrogatory No. 8, and asserted
that responses to Interrogatory Nos. 10, 12, and 13 are not
appropriate at this time in the litigation. (R. Doc. 72-6 at
2). Finally, Plaintiff's counsel stated that Plaintiff
continues to search for documents responsive to Request for
Production Nos. 3 and 4. (R. Doc. 72-6 at 2).
October 19, 2017, defense counsel provided additional
information and legal positions in support of Defendants'
request for supplemental responses, acknowledging that the
parties had reached an impasse on Interrogatory Nos. 10, 12,
and 13. (R. Doc. 72-6 at 1).
October 30, 2017, the parties held a telephone conference on
the foregoing discovery issues, but were unable to resolve
the issues without court intervention. (R. Doc. 72-1).
the instant motion, Defendants seek an order requiring
Plaintiff to provide supplemental responses to Interrogatory
Nos. 1, 2, 3, 4, 10, 11, 12, and 13, and Request for
Production Nos. 3, 4, 6, and 7. (R. Doc. 72). In their
Supplemental Memorandum, Defendants represent that after the
filing of the instant motion, Plaintiff confirmed that all
documents responsive to Request for Production Nos. 3 and 4
located after a reasonable search have been produced. (R.
Doc. 77). Accordingly, the only remaining discovery requests
at issue are Interrogatory Nos. 1, 2, 3, 4, 10, 11, 12, and
13, and Request for Production Nos. 6 and 7.
Law and Analysis
otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
non-privileged matter that is relevant to any party's
claim or defense and 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. Information within this scope
of discovery need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 26(b)(1). The court must
limit the frequency or extent of discovery if it determines
that: “(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule
26(c)'s “good cause” requirement indicates
that the party seeking a protective order has the burden
“to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact
as distinguished from stereotyped and conclusory
statements.” In re Terra Int'l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v.
Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
33 and 34 provide a party with 30 days after service of the
discovery to respond or object. See Fed. R. Civ. P.
33(b)(2) and 34(b)(2)(A). If a party fails to respond fully
to discovery requests made pursuant as to Rules 33 and 34 in
the time allowed by the Federal Rules of Civil Procedure, the
party seeking discovery may move to compel disclosure and for
appropriate sanctions under Rule 37. An “evasive or
incomplete disclosure, answer, or response must be treated as
a failure to disclose, answer or respond.” Fed.R.Civ.P.
Plaintiff's Third-Party Rentals - Interrogatory Nos. 1,
2, 3, 4, and 11, and Request for Production
Nos. 6 and 7
seek supplemental responses to various discovery requests
seeking information on Plaintiff's equipment rental
history and related payments, negotiations, disputes, and
refunds regarding Loss Damage Waivers and/or Environmental
Charges (or related fees). (R. Doc. 72-1 at 4-8). Plaintiff
objected to these discovery requests on the basis that they
seek irrelevant information concerning rentals other than
those between the parties. Defendants' discovery
requests, and Plaintiff's responses, are as follows:
INTERROGATORY NO. 1:
Please identify each person or entity from whom You have
rented equipment during the period from 2009 to present.
RESPONSE TO INTERROGATORY NO. 1:
Plaintiff objects to this interrogatory because it seeks
information not relevant to the issues raised in this lawsuit
and not reasonably calculated to lead to the discovery of
admissible evidence. Subject to said objections, and as to
H&E, Plaintiff states that it rented equipment from
H&E from 2013 to 2016.
INTERROGATORY NO. 2:
For each of the companies identified in Response to
Interrogatory No. 1, please state whether You paid any charge
related to (1) a full or partial waiver of liability for loss
or damage to the equipment (sometimes called Loss Damage
Waiver or Physical Damage Waiver or Rental Protection) and/or