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 Plaintiff's Motion to Compel (R. Doc. 82)
filed on January 11, 2018. The motion is opposed. (R. Doc.
Court held oral argument on April 18, 2018. (R. Doc. 96). The
Court allowed the parties to file supplemental briefs not to
exceed five pages, without further leave of court,
identifying any relevant deposition testimony not discussed
with the parties' initial briefs. (R. Doc. 96 at 2).
filed a supplemental brief. (R. Doc. 97). Plaintiff filed a
supplemental brief exceeding the five page limit (R. Doc. 98)
and subsequently filed a motion seeking to exceed the page
limits and to strike the non-compliant supplemental brief.
(R. Doc. 100). The motion is opposed. (R. Doc. 101).
Court has considered all of the briefing submitted by the
parties, as well as oral argument by counsel, in resolving
Plaintiff's Motion to Compel.
October 5, 2015, In & Out Welders, Inc.
(“Plaintiff” or “In & Out”)
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, violate 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 (sometimes
referred to as “LDW” by the parties) and
Environmental Charges are included on pre-printed contracts,
and that Defendants misrepresent the nature and purpose of
these fees, which Plaintiff asserts 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).
6, 2017, Plaintiff propounded its First Requests for
Production on Defendants. (R. Doc. 82-2). Defendants provided
responses on August 8, 2017. (R. Doc. 82-3). Defendants
provided supplemental responses on September 12, 2017. (R.
November 10, 2017, Plaintiff's counsel sent an email to
defense counsel proposing certain search terms to obtain
responsive documents and raising certain issues with
Defendants' supplemental responses. (R. Doc. 82-6 at
4-6). Defense counsel provided a response letter on November
10, 2017. (R. Doc. 82-5). Plaintiff's counsel sent an
additional e-mail raising issues with regard to
Defendants' supplemental responses, and Defendants agreed
that the parties reached an impasse on the identified issues.
(R. Doc. 82-6 at 1-2). Plaintiff represents that the parties
held a discovery conference on January 10, 2018 but were
unable to resolve the issues identified in the motion. (R.
Doc. 82-1 at 13).
now seeks an order requiring Defendants to provide
supplemental responses to Requests for Production Nos. 1, 2,
3, 4, 7, 8, 9, 10, 13, 14, 15, 17, 19, 20, 21, and 23. (R.
Doc. 82). Plaintiff argues that Defendants' objections
based on relevance, overbreadth, speculation, and lack of
control are meritless, and to the extent Defendants have
raised privilege objections, they have not provided a
privilege log in accordance with Rule 26(b)(5)(A) of the
Federal Rules of Civil Procedure. (R. Doc. 82-1 at 3-4). In
opposition, Defendants argue that they have already produced
nearly 70, 000 pages of documents and over one gigabyte of
native documents, that many of the documents sought by
Plaintiff do not exist, and that compiling other documents
requested by Plaintiff would be unduly burdensome or
impossible. (R. Doc. 84).
separate filing, Plaintiff represents that Defendants
produced a 22-page privilege log on February 23, 2018
identifying hundreds of documents withheld as privileged. (R.
Doc. 86 at 2).
Law and Analysis A. Legal Standards
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)).
provides a party with 30 days after service of the discovery
to respond or object. See Fed. R. Civ. P.
34(b)(2)(A). If a party fails to respond fully to discovery
requests made pursuant to Rule 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).
Request for Production No. 1
Request for Production No. 1 seeks production of “all
documents relating to Plaintiff, including, but not limited
to invoices, contracts, and screen shots from any billing or
customer information storage system.” (R. Doc. 82-2 at
3). Subject to certain objections, Defendants produced
“copies of invoices and contracts pertaining to
Plaintiff, copies of correspondence between H&E and
Plaintiff, and other documents pertaining to In & Out
identified after a reasonable search.” (R. Doc. 82-3 at
3). In their supplemental response, Defendants asserted that
they would not produce “screen shots from its billing
or customer information storage system” because such
production would be unduly burdensome and would not result in
the production of relevant information not available through
other sources. (R. Doc. 82-4 at 4).
seeks production of the requested screenshots, arguing that
they “are relevant because they show the categories of
information that H&E maintains on In & Out which will
be used to show at class certification that H&E treats
all its customers in a common and typical way with respect to
the issues in this case.” (R. Doc. 82-1 at 4).
Defendants argue that the production of such screenshots
would be unduly burdensome, as it would require Defendants to
print each available window in two different software systems
and manually produce hundreds of screenshots. (R. Doc. 84 at
2). Defendants further argue that the production of
screenshots will not result in the production of additional
relevant information given that they have already produced
data regarding Plaintiff's dealings with Defendants, and
Plaintiff has noticed a Rule 30(b)(6) deposition on
“the operation information, setup and
functionality” of Defendants' computer systems.
supplemental brief, Plaintiff argues that despite having
conducted the foregoing Rule 30(b)(6) deposition after the
filing of its Motion to Compel, it has not obtained
information from Defendants' “Rental Result”
and “SAP” programs “produced in a manner
that would allow it to determine what type of information is
stored and how it is stored.” (R. Doc. 98 at 2).
Plaintiff identifies two other computer systems-NDS and
Rental Operations Center-but does not argue that information
from these systems would be responsive to the document
request. (R. Doc. 98 at 2).
their supplemental brief, Defendants argue that the Rule
30(b)(6) deposition testimony identifies “the types of
information accessible through Rental Result, ” and
that the deposition testimony, along with the previous
production of a spreadsheet and training manuals,
sufficiently respond to the document request. (R. Doc. 97 at
is no dispute that the electronically stored information
sought in the form of screenshots is obtainable pursuant to
Rule 34(a)(1)(A). Furthermore, Defendants do not dispute that
the information sought is relevant. Defendants have not
demonstrated that the discovery sought is not proportional to
the needs of the case or that the production of the screen
shots would cause their undue burden. Given Defendants'
resources and the amount at issue, manually printing or
capturing “hundreds” of pages of screenshots is
not unduly burdensome. Accordingly, the Court will grant the
IS ORDERED that Plaintiff's Motion to Compel is
GRANTED with respect to Request for
Production No. 1. Defendants must provide the requested
screen shots within 14 days of the date of
Request for Production No. 2
Request for Production No. 2 seeks production of “all
customer data for customers who have paid or been charged a
Fee,  including each customer's full name
and last known address, and the amount and date of each Fee
paid.” (R. Doc. 82-2 at 3). Subject to certain
objections, Defendants stated they would “produce
documents reflecting customers, by customer number only, who
have been charged LDW and Environmental Charges during the
period from 2009 through 2016.” (R. Doc. 82-3 at 4).
that Defendants have produced certain information in a
spreadsheet reflecting those customers that have been charged
fees, Plaintiff now seeks an order directing Defendants to
produce the documents that show which putative class members
paid specific Fees. (R. Doc. 82-1 at 5-6). In opposition,
Defendants explain that they do not have documents responsive
to this request because their general ledger entries for the
Fees, and all other charges, are only made at the time the
item is billed, not at the time it is paid. (R. Doc. 84 at
3). Defendants represent that they have produced financial
records reflecting when Fees were charged to customers, but
do not have responsive documents allocating payments to the
particular line-item charges of Fees. (R. Doc. 84 at 3-4).
supplemental brief, Plaintiff argues that it is not seeking
an order requiring Defendants to run any reports, and is
instead seeking the production of underlying data showing
“payments, payment dates, credits, and
write-offs” that Defendants' deposition testimony
indicates exists. (R. Doc. 98 at 2-3). In their supplemental
brief, Defendants reference certain deposition testimony,
indicating that while they could easily run reports saying
whether a particular invoice is open or not, it would take
individualized inquiry into the SAP program to determine
whether an invoice was paid in full or whether an amount was
written off. (R. Doc. 97 at 2-3).
Corporate Credit Manager stated that “It's pretty
easy to run a report that says it is open or not open. How it
became not open is not necessarily easy to go to in
SAP.” (R. Doc. 97 at 2). The Controller further
explained that the accounts receivable detailed in SAP would
still not reflect whether an invoice was closed because it
was written off or paid. “You'd have to go research
each particular transaction.” (R. Doc. 97 at 2).
initial opposition memo, Defendants discussed the possibility
of creating reports using SAP to create a list of invoices
including LDW or Environmental Charges, with additional data
indicating the status of that invoice. (R. Doc. 84 at 4). It
is apparent that such a record does not exist at this time.
Even then, the Court is satisfied that based on the
representations of the parties and the deposition testimony
above, even that report would not provide the “amount
and date of each Fee paid” as demanded in Request for
Production No. 2.
have reasonably complied with Request for Production No. 2 as
written. Defendants have also explained the limitations based
on how the accounting records are compiled and maintained,
and have diligently responded with the records available.
Review of transaction details numbering in what could be
hundreds of thousands is not reasonable. This is a situation
where the Court would expect the parties to find some area of
compromise based on the records as they exist. Instead,
Plaintiff seeks this Court to compel the Defendants to
produce records that do not exist, potentially create reports
that would still fall short of the demand in Request for
Production No. 2, or review documentation for every
transaction in the entire geographic area and duration
covered by the Complaint. The Court determines that none of
these are appropriate under the applicable Federal Rules of
IS ORDERED that Plaintiff's Motion to Compel is
DENIED with respect to ...