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Pals v. Weekly

United States District Court, D. Nebraska

May 17, 2018

KATHRYNN PALS, as personal representative of the Estate of Jamison B. Pals and personal representative of the Estate of Ezra A. Pals; and GORDON ENGEL, as personal representative of the Estate of Kathryne L. Pals, personal representative of the Estate of Violet J. Pals, and personal representative of the Estate of Calvin B. Pals; Plaintiffs,
v.
TONY WEEKLY JR., BOHREN LOGISTICS, INC., INTERSTATE HIGHWAY CONSTRUCTION, INC., and D.P. SAWYER, INC., Defendants.

          ORDER

          SUSAN M. BAZIS, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' Motion to Compel and for Sanctions Against Defendant Interstate Highway Construction, Inc. (Filing No. 80) and the Motion to Bifurcate (Filing No. 105). For the reasons explained below, Plaintiffs' Motion to Compel and for Sanctions will be granted, in part. The Motion to Bifurcate will be denied without prejudice to reassertion at a later date.

         BACKGROUND

         Plaintiffs served their First Set of Requests for Production of Documents upon Defendant Interstate Highway Construction, Inc. (“Defendant”) on June 7, 2017. In October, 2017, Plaintiffs' counsel contacted the Court to schedule a telephonic conference regarding Defendant's discovery responses. Plaintiffs sought to compel Defendant to produce responsive documents and data from its email systems and other data sources, including text messages.

         The Court held a telephone conference with counsel on November 6, 2017. During the conference, there was discussion regarding the lack of internal correspondence produced by Defendant. At that time, Defendant's counsel represented that Defendant had produced all external and internal emails, and that no other responsive documents had been located. With this representation, the Court indicated that it could not order Defendant to produce documents that do not exist. The Court cautioned, however, that if it was determined that Defendant was withholding documents, Defendant would be subject to sanctions. Accordingly, the Court ordered, in part, that: (1) Plaintiffs could conduct a Federal Rule of Civil Procedure 30(b)(6) deposition regarding document production and preservation issues; (2) Defendant correspond with employees who worked on the Big Springs - Brule Construction Project (the “Project”) to determine whether the employees have any pictures or writings relevant to the Project or accident at issue in this litigation, and that if employees had such information, that it be produced; and (3) Plaintiffs specify any items Plaintiffs believe Defendant had not produced. (Filing No. 72.)

         On November 17, 2017, Plaintiffs' counsel noticed the Rule 30(b)(6) deposition regarding document preservation and collection. The deposition was scheduled for December 20, 2017, in Denver, Colorado. On December 15, 2017, Defendant's counsel disclosed that Defendant had discovered thousands of pages of responsive documents while preparing for the Rule 30(b)(6) deposition. The categories of documents located included those that Defendant had previously represented had been fully produced. Counsel agreed to continue the Rule 30(b)(6) depositions in light of these responsive documents.

         On December 18, 2017, Plaintiffs' counsel contacted the Court to provide an update regarding document production. In response, the Court authorized Plaintiffs to file a formal motion to compel. The motion was filed on December 22, 2017. (Filing No. 80.)

         DISCUSSION

         1. Plaintiffs' Motion to Compel and for Sanctions

         Plaintiffs request that the Court (1) compel Defendant to preserve and produce its complete project file, all correspondence, emails, and text messages related to the accident, as well as all correspondence, emails, and text messages related to the Project; (2) order Defendant to supplement its responses to Interrogatory Nos. 6, 8, 9, 12, and 16-19; (3) renew its order authorizing Plaintiffs to take a Rule 30(b)(6) deposition of Defendant regarding document preservation, collection, and spoliation, and order that the deposition take place in Minneapolis, Minnesota at Defendant's expense; and (4) impose sanctions against Defendant and its counsel to reimburse Plaintiffs' attorneys' fees and costs related to Plaintiffs' effort to obtain responsive documents.

         Defendant contends that it has complied with Plaintiffs' request that it produce the project file, all correspondence, emails, and text messages related to the accident at issue in this litigation, as well as all correspondence, emails, and text messages related to the Project. Defendant asserts that it has produced approximately 65, 696 pages of responsive documents. Defendant further maintains that it previously supplemented its responses to Interrogatory Nos. 6, 8, 9, 12, and 16-19.

         The Court will take Defendant's counsel at his word that all documents responsive to Plaintiffs' request for the project file and related documents have now been produced. The Court warns, however, that should this representation prove to be false, sanctions will be imposed.

         Plaintiffs contend that Defendant's supplemental responses to Interrogatory Nos. 6, 8, 9, 12, and 16-19 remain deficient, partially because the supplemental responses only generally refer Plaintiffs to Defendant's entire document production. Defendant must supplement its interrogatory responses to provide full and complete responses, and to indicate with particularity (preferably by bates number), where responsive information is located. Defendant shall do so within ten (10) days of this Order.

         Plaintiffs have also requested that Defendant re-bates number and produce documents again. The ...


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