United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants' Motion to Compel Discovery and
Unopposed Motion for Expedited Consideration (R. Doc. 31)
filed on July 6, 2018. The Motion is Opposed. (R. Doc. 36).
Western Surety Company (“Plaintiff” or
“Western”), initiated this litigation with the
filing of its Complaint (R. Doc. 1) on November 9, 2017.
Western is seeking to recover settlement amounts plus costs
it paid to a third party, Harry Pepper & Associates, Inc.
(“HPA”). The claims arise out of work that was to
be performed under a contract between HPA and NASA at the
John C. Stennis Space Center in Mississippi. HPA, the general
contractor, entered into a subcontract with Defendant PASI
for a portion of the work. Western issued a Subcontract
Performance Bond and a Subcontract Payment Bond for
PASI's scope of work, and alleges the named Defendants
executed a General Indemnity Agreement in favor of Western.
January of 2015, HPA notified PASI that it was in default on
the subcontract, which subcontract was then terminated in
February of 2015. (R. Doc. 1 at 6-7). HPA made demand on
Western under the Subcontract Performance Bond, which then
made demand on the Defendant-indemnitors under the General
Indemnity Agreement. (R. Doc. 1 at 7). HPA filed suit against
Western in May of 2016. (R. Doc. 1 at 7). Western settled
HPA's claims against it in August of 2017. (R. Doc. 1 at
8). HPA also filed suit against PASI arising out of the
subcontract, which claims were referred to arbitration. (R.
Doc. 31-1 at 4). The arbitration was heard in December of
2017 and, in January of 2018, the arbitration panel issued
its final award, ordering HPA to pay damages to PASI, and
finding PASI to have no liability. (R. Doc. 31-1 at 4; R.
Doc. 31-6 at 10-12).
is seeking to recover the sums it paid to HPA in settlement,
in addition to costs and attorney's fees, pursuant to the
General Indemnity Agreement executed by Defendants. (R. Doc.
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)).
must respond or object to a request for production within 30
days after service of the discovery. See Fed. R.
Civ. P. 34(b)(2)(A). This default date may be modified by
stipulation between the parties. Fed.R.Civ.P. 29(b). 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 responses 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).
provides that “[w]hen a party withholds information
otherwise discoverable by claiming that the information is
privileged or subject to protection as trial-preparation
material, the party must: (i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed--and do so in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the
claim.” Fed.R.Civ.P. 26(b)(5)(A). This Court's
local rules require that any privilege log must contain
“at least the following information: name of the
document, electronically stored information, or tangible
things; description of the document, electronically stored
information, or tangible thing, which description must
include each requisite element of the privilege or protection
asserted; date; author(s); recipient(s); and nature of the
privilege.” LR 26(c).
seek to compel responses to their Request for Production Nos.