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Brand Energy & Infrastructure Services, Inc. v. Irex Corp.

United States District Court, E.D. Pennsylvania

December 21, 2017



          ELIZABETH T. HEY, U.S.M.J.

         Presently, the court considers dueling motions regarding the Rule 30(b)(6) deposition of Jason Dodd, the Controller for the defendant Irex entities (“Irex”) and their designated deponent. Based on the deposition testimony, Brand “renews its request for an Order compelling [Irex] to produce financial documents sufficient to identify what profit [Irex] earn[ed] on any job for a Brand customer or how the money flowed between Irex entitites.” Doc. 256 at 1. Irex responds that the documentation provided is the information kept in the ordinary course of business that establishes the revenue and profit earned by Irex from Brand customers. Doc. 258 at 2-4. In its motion, Irex complains that Brand violated the discovery orders in this case and asks the court to mark the Rule 30(b)(6) deposition of Mr. Dodd completed. Doc. 255. Brand responds that Irex's accusations regarding the deposition are baseless. Doc. 259. For the reasons that follow, both motions will be denied.

         I. Brand's Motion

         In order to understand Brand's many complaints about the deposition, I need to review some history of the discovery disputes that have plagued this case. On October 20, 2017, I held oral argument on two motions to compel (Docs. 220 and 222) filed by Brand. As discussed at the hearing, in Brand's fourth request for production of documents numbered 1, 14, and 15, Brand was looking for the profit made by Irex from any former Brand customer in order to prove its damages. N.T. 10/30/17 at 7. As explained by Brand, this could be complicated by the movement of money between Irex entities if one Irex entity contracted with another to perform part of the work. Id. According to Brand, depending on the internal-Irex contracts, “[they] can actually make [their] profit look like zero” by billing services related to the job to different Irex entities. Id. at 20.

         At the hearing Irex's counsel represented to the court that through use of the Earned Revenue and Margin Reports (Bates Nos. IREX 0273536-39) and the Recognized Revenue Margin Reports (Bates Nos. IREX0273552-55) anyone could track the flow of money through the Irex entities. N.T. 10/30/17 at 26-27. As explained by defense counsel, the Recognized Revenue charts showed customer-level detail and the Earned Revenue charts showed the job-level detail. Id. at 26. Defense counsel then walked through two examples using the Earned Revenue and Margin Report from 2016 (Bates No. IREX0273539) to show the contracts for the Dominion Clover Outage and Dominion Opossum Point Station, showing the job level contract numbers and costs, and then to the Recognized Revenue Margin for 2016 (Bates No. IREX0273555) to show the customer level revenue and margin. Id. at 27.

         After questioning Mr. Dodd regarding these reports for the relevant years, Brand argues that “Defendants' representations to the Court were not true or accurate in any way.” Doc. 256 at 2. Specifically, Brand argues that Mr. Dodd testified that, “unless one has a working knowledge of the operations of the Irex organization, one cannot interpret all of the information contained in the financial reports.” Id at 3. However, the excerpt of Mr. Dodd's deposition cited for this proposition shows Mr. Dodd was asked to look at one of the Recognized Revenue Reports, which contain customer-level detail, not job-level detail. Dodd Dep. at 217:18-23. Defense counsel explained at the oral argument that the Recognized Revenue Reports and the Earned Revenue Reports needed to be reviewed to obtain both customer and project based data.

         Brand complains that it cannot identify the customer from the Earned Revenue and Margin Reports. Brand also argues that the financial documents “do not identify all of Defendants' customers who may have worked on jobs for Brand customers . . . and do not tell which job corresponds to a particular customer, how much Defendants earned on any particular job, or what Irex entities billed for services for such jobs.” Doc. 256 at 3.[1]In support of this proposition, Brand cites to deposition testimony in which Mr. Dodd was specifically asked to identify the customer for whom a specific project was done on the Earned Revenue and Margin Report for 2013. Doc. 256 at 3 (citing Dodd Dep. at 199:14-25). Mr. Dodd responded that the document did not identify the customer and the only way to cross-reference to a customer would be to access the ERP, Irex's accounting software. Dodd Dep. at 199:25-200:10; 200:23-201:5; 202:7-18; 252:21-25.[2] The upshot of Brand's argument is that Irex has produced documentation showing the earned revenue by customer and by project, both of which are over inclusive, i.e., the project information provided does not identify the customer and the customer information does not identify the project. Brand wants a single report that identifies revenue/profit for its former customers project by project.

         Irex complains that Brand's motion in this respect is nothing more than an untimely motion for reconsideration of this court's October 24, 2017 Order (Doc. 236). Doc. 258 at 2. I disagree to some extent with the characterization. Had the Rule 30(b)(6) deposition of the Controller of Irex revealed that defense counsel had actually misrepresented the financial documentation provided, the court would have no problem revisiting the issue in light of new evidence. However, the original requests for production that resulted in the production of the financial documentation at issue sought financial statements, income tax filings, operating budgets, revenues generated, profits generated, Earned Revenue & Martin Reports, Recognized Revenue by Region/Area/Mrkt Reports, transactions between or among the relevant Irex entities, and transfers of assets between or among the relevant Irex entities. Plaintiff's Fourth Request for Production of Documents, Nos. 6-8, 10-15. Mr. Dodd's Rule 30(b)(6) deposition does not undermine the validity of the documents produced. He testified that he would have to consult the accounting program to cross reference the jobs to the customers, so it does not appear that a document with such cross referencing is kept in the ordinary course of business. The fact that Brand is not happy with the form of the production does not undermine its validity.[3]

         Irex has produced the documentation to show what amounts it has made from former Brand customers based on documents it keeps in the ordinary course of business. I will not require it to manipulate its software to create reports it does not use in the ordinary course of business. See Fed.R.Civ.P. 34(b)(2)(E)(i) (requiring production of documents as they are kept in the usual course of business). Brand's motion will be denied.

         II. Irex's Motion

         In its motion, Irex argues that Brand went far afield in questioning Mr. Dodd during his Rule 30(b)(6) deposition, and asks the court to mark the Rule 30(b)(6) deposition of Mr. Dodd completed. Doc. 255. Again, some history of the discovery disputes in the case are necessary before delving into the arguments. According to earlier filings, on May 19, 2017, Brand served each of the six Irex Corporate Defendants with Rule 30(b)(6) deposition notices containing 56 separate topics. Docs. 197-1 at 2; 197-3. On August 9, 2017, Irex filed a motion for a protective order, asking the court to quash a number of topics listed in the deposition notices. After considering the motion, response, and the deposition notices, I granted Irex's motion, in part, limiting inquiry into certain areas temporally, and other based on relevancy. I precluded inquiry into other topics that I found were completely irrelevant. Doc. 207. Irex now argues that during Mr. Dodd's Rule 30(b)(6) deposition, Brand inquired into areas previously determined to be off limits and thereby wasted Mr. Dodd's time.

         Before proceeding to address Irex's specific arguments, I note that Irex appears to begin with a false premise. According to Irex, Mr. Dodd was available for over 7½ hours for the deposition at Brand's counsel's office and was on the record for 5 hours and 55 minutes. Doc. 255 at 5 n.2. Irex offered to compromise regarding Brand's request to continue the deposition by offering to make Mr. Dodd available for another 1 hour and 5 minutes, presumably on the assumption that his deposition was limited to 7 hours. On the contrary, as explained in my Order of August 30, 2017, “[i]f Irex identifies the same individual for multiple corporate defendants, he . . . shall be deposed for a maximum of . . . 7 hours . . . for each defendant for which he . . . has been designated.” Doc. 207 at 6 n.2. Thus, Brand is entitled to depose Mr. Dodd for 7 hours for each of the entities for which he was designated, rather than 7 hours total.[4]

         a. Deposition Topics 1-3, 9-10, and 12 - Corporate Structure/Inner Workings

         With respect to Topics 1-3, 9-10, and 12, which I previously noted “focus on the relationship between, ownership of, corporate structure of, transactions between/among, transfers of assets between/among, and shared services between/among nine Irex entities, ” I believe the confusion regarding permissible inquiry in these areas arises from the sequence of events prior to Mr. Dodd's deposition. When ruling on Irex's motion for a protective order, I limited inquiry to an explanation of the corporate structure of the Irex entities. Doc. 207 at 3. Thus, I found ...

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