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PEG Bandwidth PA, LLC v. Salsgiver, Inc.

United States District Court, W.D. Pennsylvania

July 13, 2017

PEG BANDWIDTH PA, LLC, Plaintiff,
v.
SALSGIVER, INC., Defendant.

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE.

         This case is a contractual dispute between a telecommunications-infrastructure provider-PEG Bandwidth PA, LLC-and a contractor it hired to install fiber-optic cables- Salsgiver, Inc. Pending before the Court is PEG's motion to compel and for sanctions (ECF No. 37). PEG seeks an order (1) requiring Salsgiver to immediately produce all documents that are responsive to PEG's document requests; (2) declaring that Salsgiver has waived all objections to those document requests by failing to respond to those requests; (3) requiring Salsgiver to “pay PEG all reasonable attorneys' fees associated with its attempts to obtain documents responsive to its [document requests]”; and (4) imposing any additional sanctions on Salsgiver that the Court deems appropriate. (ECF No. 38 at 4.) For the reasons below, PEG's motion to compel and for sanctions will be granted.

         I. Background[1]

         PEG filed this case against Salsgiver on August 2, 2016, and the parties are currently engaged in fact discovery. (See ECF No. 32.) PEG served its first request for the production of documents on Salsgiver on January 25, 2017 (see ECF No. 38-1 at 16)-meaning Salsgiver's responses to those document requests were due on February 24, 2017, see Fed. R. Civ. P. 34(b)(2)(A). As PEG explains in its motion, however, Salsgiver did not respond by that deadline. But February 2017 was an eventful month for Salsgiver; it switched counsel (see ECF Nos. 30-32), and this switch prompted the parties to jointly move to modify the initial scheduling order so that Salsgiver's new counsel could become familiar with the case (ECF No. 32 ¶ 2). The parties' proposed new scheduling order-which the Court entered on April 19, 2017-included a provision providing that “Defendant shall produce documents responsive to Plaintiff's First Request for Production of Documents on a rolling basis beginning no later than Friday, April 28, 2017.” (ECF No. 34 ¶ g.)

         In PEG's motion, PEG's counsel states that no documents were provided by April 28 or any time thereafter. PEG's counsel states further that he emailed Salsgiver's counsel on both May 2 and 13, 2017-copies of these emails are attached as exhibits to the motion-and left them a voicemail on May 13, 2017, to follow up on PEG's document requests. According to PEG's counsel, Salsgiver's counsel did not respond to either email or the voicemail and has been completely uncommunicative, prompting PEG to file the motion to compel before the Court. And although Salsgiver's response to PEG's motion was due by June 29, 2017, it failed to respond.[2]

         II. Legal Standard

         Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” This scope formerly included matters that were “reasonably calculated” to lead to the discovery of relevant evidence, but Rule 26 as amended no longer includes this language. A matter is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action.” See Fed. R. Evid. 401.

         Rule 37 provides the mechanism to compel discovery from a person or party who refuses to provide discovery. The party moving to compel discovery under Rule 37 bears the initial burden of proving the relevance of the material requested. See Morrison v. Phila. Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001) (citations omitted). If the movant meets this initial burden, then the burden shifts to the person resisting discovery to establish that discovery of the material requested is inappropriate. Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa. 1996) (citation omitted). The person resisting discovery must explain with specificity why discovery is inappropriate; the boilerplate litany that the discovery sought is overly broad, burdensome, oppressive, vague, or irrelevant is insufficient. See Josephs v. Harris Corp., 677 F.2d 985, 991-92 (3d Cir. 1982).

         Rule 37 provides also that if a motion to compel is granted, or if the requested discovery is provided after the motion's filing, “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed.R.Civ.P. 37(a)(5)(A). But there are some exceptions to this mandate. The Court must not order this payment if “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id.

         III. Discussion & Analysis

         PEG seeks an order (1) requiring Salsgiver to immediately produce all documents that are responsive to PEG's document requests; (2) declaring that Salsgiver has waived all objections to those document requests by failing to respond to those requests; (3) requiring Salsgiver to “pay PEG all reasonable attorneys' fees associated with its attempts to obtain documents responsive to its [document requests]”; and (4) imposing any additional sanctions on Salsgiver that the Court deems appropriate. (ECF No. 38 at 4.) The Court will address each request below.

         A. Production

         Whether PEG is entitled to the documents it seeks is an easy question. As the movant, PEG has the initial burden of proving the relevance of the material requested. See Morrison, 203 F.R.D. at 196. Although some of PEG's document requests are phrased broadly-for example, requests 28 and 29 seek any document Salsgiver “contend[s] constitutes an admission” by PEG or Salsgiver-all of PEG's document requests nevertheless relate to this case and are directed at matters that would make facts of consequence in this case more or less likely. (See ECF No. 38-1.) The documents sought are thus relevant, meaning Salsgiver had to establish that their discovery is inappropriate. See Momah, 164 F.R.D. at 417. But Salsgiver ...


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