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In & Out Welders Inc. v. H & E Equipment Services Inc.

United States District Court, M.D. Louisiana

March 16, 2018

IN & OUT WELDERS, INC.
v.
H & E EQUIPMENT SERVICES, INC., ET AL.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before 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).

         I. Background

         On 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).

         The parties are currently engaged in discovery regarding class certification issues. (R. Doc. 60; R. Doc. 83).

         On 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).

         On 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. Doc. 72-5).

         On 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).

         On 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).

         On 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).

         Through 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).[1] 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.

         II. Law and Analysis

         A. Legal Standards

         “Unless 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).

         “The 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)).

         Rules 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. 37(a)(4).

         B. Analysis

         1. Plaintiff's Third-Party Rentals - Interrogatory Nos. 1, 2, 3, 4, and 11, and Request for Production Nos. 6 and 7

         Defendants 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 (2) ...

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