ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL AND GRANTING PLAINTIFF'S MOTION TO DEEM ITS ADMISSIONS TIMELY [DOCKET NOS. 26 & 33]
VERONICA L. DUFFY, Magistrate Judge.
This diversity action is before the court on plaintiff Black Hills Molding's complaint against defendant Brandom Holdings, LLC alleging breach of contract and promissory estoppel. See Docket No. 1-1. Pending is Brandom Holdings' motion to compel plaintiff to respond to certain discovery requests. See Docket No. 26. Plaintiff resists this motion and filed a separate motion requesting that this court deem plaintiff's responses as timely. See Docket No. 33. The Chief District Judge, the Honorable Jeffrey L. Viken, referred these motions to this magistrate judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A) (2006).
BACKGROUND & PROCEDURAL HISTORY
On June 13, 2012, plaintiff Black Hills Molding, Inc. ("Black Hills Molding"), a corporation incorporated in the State of South Dakota, served a complaint on Brandom Holdings, LLC ("Brandom"), a corporation incorporated in the State of Texas, alleging breach of contract and promissory estoppel. See Docket 1-1. The complaint was initially filed in state court for the State of South Dakota. Id . However, defendant Brandom removed the complaint to the United States District Court for the District of South Dakota based on the Court's diversity of citizenship jurisdiction. See Docket 1; 28 U.S.C. §1441(a) (2006). As set forth below, the parties have become embroiled in a discovery dispute concerning the timeliness, sufficiency, and the appropriateness of court-ordered sanctions as it relates to Black Hills Molding's responses to Brandom's discovery requests.
On May 28, 2013, counsel for Brandom contacted counsel for Black Hills Molding requesting discovering of the six categories of documents pertinent to the present dispute, which Black Hills Molding stated it possessed in its January 18, 2013, initial disclosures. See Docket No. 28-4. On May 30, 2013, counsel for Brandom Holdings served on Black Hills Molding its first set of interrogatories, requests for production ("RFPs"), and requests for admission ("RFAs"). See Docket No. 28-1. Brandom's May 30, 2013 discovery requests consisted of ten interrogatories,  fifteen RFPs, and nine RFAs. Id . Following Black Hills Molding's failure to respond to the discovery requests, Brandom Holding's local counsel requested the same via telephone on June 6 and 7, 2013, and in writing on June 7 and 13, 2013. Id.
On June 25, 2013, counsel for Brandom, by letter, requested that Black Hills Molding supplement its initial disclosures. See Doc. 28-4. Notably, Brandom's letter stated that it was "a follow-up to my voice mail and e-mail messages to you as of today regarding Plaintiff's failure to produce documents identified in Plaintiff's initial disclosures and my good faith attempt to resolve this dispute as required by local rule 37.1. " Id . (emphasis added). In this letter, Brandom's counsel proposed delaying the deposition of Black Hills Molding's corporate representative until July 9-11, 2013, in an effort to allow Black Hills Molding adequate time to provide Brandom with the requested discovery in advance of the deposition. See id.
On June 26, 2013, Brandom's counsel served a Second Amended Notice of a Federal Rule of Civil Procedure 30(b)(6) deposition on Black Hills Molding, which was scheduled for July 11, 2013. See Docket 28-5. Brandom Holding's 30(b)(6) deposition was coupled with a subpoena duces tecum, instructing the corporate representative of Black Hills Molding to "bring with them to the deposition all documents (a) that they review between now and their deposition to prepare to testify on the foregoing subjects, or (b) that contain information responsive to the foregoing subjects." Id.
On June 28, 2013, counsel for Black Hills Molding requested that it be given until the close of business on July 2, 2013, a three-day extension,  to respond to Brandom's May 30 discovery requests. See Docket No. 28-6. Brandom granted the extension, and, on July 2, 2013, Black Hills Molding provided Brandom with 534 pages of documents sent via email. See Docket No. 29; see also Docket No. 28-7.
However, it was not until July 3, 2013, one day after the expiration of the three-day extension, that Black Hills Molding served its responses to Brandom's May 30 discovery requests on Brandom. See Docket No. 28-7. Specifically, Black Hills Molding admitted to RFAs one, two, and four; denied RFAs three, five, six, seven, and eight with an explanation; and denied RFA nine without an explanation. See Docket No. 28-7.
With respect to the interrogatories, Black Hills Molding responded by referring Brandom to the entirety of its July 2 email disclosures on fourteen of the twenty-one total sub-questions posed. See Docket No. 28-7. Black Hills Molding's responses, with the exception of those offered in sub-question (a) of both interrogatory eight and nine, provide little-if any support-or context for the response given. See, e.g., Docket No. 28-7. Similarly, Black Hills Molding responded to every one of Brandom's RFPs by answering: "[s]ee BH Molding 1-534, " "[w]e are still looking for these, " "[t]hese will be provided when the invoices are prepaid, " or "[s]ee BH Molding 534." See Docket No. 28-7. Black Hills Molding's responses to Brandom's ten interrogatories were signed only by its counsel. See Docket No. 28-7. No agent of Black Hills Molding signed its responses to Brandom's interrogatories.
On July 11, 2013, pursuant to the second amended deposition notice, see Docket No. 28-5, Brandom began the deposition of David Mallams, the corporate representative of Black Hills Molding. Docket No. 28-8. However, Brandom suspended the deposition of David Mallams after only ninety minutes and refused to depose Greg Mallams. Id . Brandom, in its motion to compel and without objection from Black Hills Molding, asserted that Mr. David Mallams failed to bring the documents requested in the subpoena duces tecum. Id.
On July 16, 2013, following the failed July 11 deposition attempt, counsel for Brandom contacted Black Hills Molding via letter with a stated purpose of providing a "good-faith attempt to resolve this dispute as required by Local Rule 37.1." Docket No. 28-8. In this letter, Brandom proposed a three-step process whereby Black Hills Molding would supplement its interrogatory responses and document production efforts by July 30, 2013, the suspended deposition of Black Hills Molding's corporate representatives would be reconvened by prior to August 31, 2013, and both Black Hills Molding and Brandom would file an agreed upon motion to extend the court's discovery motion filing deadline from July 31, 2013 to September 30, 2013. See id.
Brandom's July 16 letter to Black Hills Molding was Brandom's final attempt to resolve the discovery dispute without court intervention. Id . To that end, Brandom informed Black Hills Molding that unless it agreed to the proposed terms by July 18, 2013 at 5:00 p.m. Central Time, Brandom would file a motion to compel discovery from Black Hills Molding. Id.
On July 18, 2013, Black Hills Molding responded to Brandom's July 16 letter. Black Hills Molding's response was limited to the six deficiencies Brandom alleged regarding its initial disclosures. Notably, Black Hills Molding claimed that "some" of its disclosed documents were responsive both as initial disclosures and as responses to specific discovery requests. See Docket No. 28-9. In response to Brandom's first alleged initial disclosure deficiency, Black Hills Molding stated that the 534 pages of emails, which it provided to Brandom via email on July 2, 2013, containing correspondence between Black Hills Molding and either Brandom Holdings, LLC or Brandom Southwest, LP,  were dual purposed and should be considered both as part of Black Hills Molding's initial disclosures and as responsive to Brandom's specific requests for documents. Id.
In response to Brandom's second alleged initial disclosure deficiency, Black Hills Molding stated that the aforementioned 534 pages of emails "also reflect Holdings and Southwest's purchase of cabinetry components." Id . In response to Brandom's third alleged initial disclosure deficiency, Black Hills Molding provided new invoices from Black Hills Molding to either Brandom Holdings, LLC or Brandom Southwest, LP. Id . (referencing "BH Moldings 542 through 560"). Black Hills Molding also noted "that Tammy's computer contained some of the invoices but those were deleted prior to this litigation beginning." Id . Additionally, Black Hills Molding provided Brandom with a copy of the "Non-circumvention & Sales Agreement." Id.
On July 25, 2013, Brandom filed a motion compelling Black Hills Molding to respond fully and completely to its discovery requests, to make its corporate representative available to be deposed at a mutually agreeable time and location, and seeking the reasonable attorney's fees it incurred in filing its motion to compel. See Docket No. 26. Brandom also sought an order of the court deeming its RFAs to be admitted by Black Hills Molding because those responses were one day late. Id . Shortly thereafter, on August 14, 2013, Black Hills Molding filed a motion resisting Brandom's motion to compel discovery and moving the court to deem its July 3, 2013, responses to the defendant's RFAs as timely. See Docket No. 33.
A. Meet-and-Confer Requirement
Under Federal Rule of Civil Procedure 37(a)(4), a party's "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). A party requesting the discovery is entitled to move for a motion compelling disclosure after having made a good faith effort to resolve the dispute by first conferring with the other party. A motion to compel answers to interrogatories or requests for the production of documents is governed by Federal Rule of Civil Procedure 37. That rule provides, in pertinent part:
On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
FED. R. CIV. P. 37(a)(1).
Likewise, the local rules in this district require the movant to identify the efforts already taken to resolve the dispute without court involvement. Specifically, "[a] party filing a motion concerning a discovery dispute shall file a separate certification describing the good faith efforts of the parties to resolve the dispute." See D.S.D. LR 37.1.
Prior to seeking an order from this court compelling discovery, Brandom's counsel repeatedly and in good faith contacted the counsel of Black Hills Molding seeking discovery without court intervention. Brandom has contacted Black Hills Molding no less than seven times, including in-person conversations, telephone, email, and letter, in an effort to gain access to the discovery material that is the basis of this motion. See Docket No. 28. In fact, Brandom's June 25, 2013, and July 16, 2013, letters to Black Hills Molding specifically reference that the letters represented Brandom's "good faith attempt to resolve this dispute as required by Local Rule 37.1." Docket No. 28-4; see also Docket No. 28-8. Brandom waited until July 25, 2013, seven days after the expiration of the deadline that Black Hills Molding was given to accept Brandom's proposed resolution, before filing this motion to compel discovery. See Docket No. 28-8, 26.
To date, Black Hills Molding has not addressed, and apparently takes no issue with, Brandom's representations regarding its attempts to contact it and resolve the discovery dispute without court intervention. Accordingly, the court finds that Brandom has satisfied the good faith, meet-and-confer prerequisite to filing the instant discovery motion. See FED. R. CIV. P. 37(a)(1); D.S.D LR 37.1.
B. Standard Applicable to Discovery in Federal Court
1. General Scope
Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery in civil cases pending in federal court:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
FED. R. CIV. P. 26(b)(1). Rule 26 contains specific limitations relative to electronic discovery and other objections to providing discovery:
(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify the conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule 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 burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
See FED. R. CIV. P. 26(b)(2)(B) and (C). The scope of discovery under Rule 26(b) is extremely broad. See 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE § 2007, at 118-24 (3d ed. 2010). The reason for the broad scope of discovery is that "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." Id. at 120 (quoting Hickman v. Taylor , 329 U.S. 495, 507 (1947)). The Federal Rules distinguish between discoverability and admissibility of evidence. FED. R. CIV. P. 26(b)(1), 32, and 33(a)(2). Therefore, the rules of evidence assume the task of keeping out incompetent, unreliable, or prejudicial evidence at trial. However, these considerations are not inherent barriers to discovery. Discoverable information need not be admissible at trial; rather, "discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence." See FED. R. CIV. P. 26(b)(1) Advisory Committee's Notes, 2000 Amendment.
As stated above, Federal Rule of Civil Procedure 26 permits discovery of anything relevant to a claim or defense at issue in the case. The Advisory Committee's note to the 2000 amendments to Rule 26(b)(1) provides guidance on how courts should define the scope of discovery in a particular case:
Under the amended provisions, if there is an objection that discovery goes beyond material relevant to the parties' claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause standard warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard.... In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.
The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.... When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.
See FED. R. CIV. P. 26(b)(1) Advisory Committee's Notes, 2000 Amendment.
The same Advisory Committee's note further clarifies that information is discoverable only if it is relevant to the claims or defenses of the case or, upon a showing of good cause, to the subject matter of the case. Id . Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. "Relevancy... encompass[es] any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'" E.E.O.C. v. Woodmen of the World Life Ins. Soc'y, No. 08:03-CV-165 , 2007 WL 1217919, at *1 (D. Neb. Mar. 15, 2007) (quoting Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351 (1978)).
The party seeking "discovery must make a threshold showing of relevance before production of information, which does not reasonably bear on the issues in the case, is required." Id . (citing Hofer v. Mack Trucks, Inc. , 981 F.2d 377, 380 (8th Cir. 1993)). "Mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case." Id . (citing Cervantes v. Time, Inc. , 464 F.2d 986, 994 (8th Cir. 1972)). With these standards in mind, the court turns to the discovery requests made by Brandom to Black Hills Molding that are the subject of this dispute.
3. Plaintiff Waived the Right to Object to Defendant's Discovery Requests
Under Federal Rule of Civil Procedure 33(b)(4), if not timely asserted, objections to discovery requests are waived, unless the court finds good cause to excuse the failure to object. See, e.g., Janis v. Nelson, No. 09-5019 , 2009 WL 5216898, at *8 (D.S.D. Dec. 30, 2009); Delaney v. Ashcraft, No. 05-6045, 2006 WL 2080023, at *1 (W.D. Ark. July 25, 2006). Neither Black Hills Molding nor its counsel objected to any of the interrogatories or RFPs propounded by Brandom. Furthermore, the time during which Black Hills Molding could have made objections has lapsed, and there is an absence of good cause appearing in the record to excuse the plaintiff's failure to timely object. See Docket No. 28. Accordingly, to the extent the plaintiff had objections to Brandom's discovery requests, the plaintiff has waived the right to object. FED. R. CIV. P. 33(b)(4).
Black Hills Molding has also failed to sign its responses to Brandom's interrogatories in accordance with Federal Rule of Civil Procedure 33(b)(3) and (5). FED. R. CIV. P. 33(b)(5). Under the Federal Rule of Civil Procedure, interrogatories must be signed, under oath, by the party itself, not the party's lawyer. See FED. R. CIV. P. 33(b)(3) and (5) (the party must answer each interrogatory separately and fully in writing under oath-the attorney signs only as to objections that are interposed). Therefore, plaintiff's responses to interrogatories are invalid on procedural grounds, regardless of the substance of the answers given. The court now turns to the substance of the specific discovery requests made by Brandom Holdings.
4. Plaintiff's Interrogatories and Request for Production
Brandom Holding's interrogatories and RFPs requested responses to ten interrogatories and fifteen RFPs. Docket No. 28-1. Black Hills Molding failed to object to any of Brandom's interrogatories or RFPs. See Docket No. 28-7. As previously noted, the plaintiff has largely failed to address any of the interrogatories or RFPs. Most often, Black Hills Molding merely refers Brandom to the entirety of its document production. See Docket No. 28-7. Despite the defendants' lack of objection to the discovery requests, the court is obliged to discuss the relevancy and scope of Brandom's discovery requests with respect to the standards set forth above. As stated above, the scope of discovery under Rule 26(b) is extremely broad. See supra. With this in mind, each of Brandom's discovery requests is identified and the sufficiency of each of Black Hills Molding's corresponding responses is evaluated in turn.
a. Brandom Holdings' Interrogatories
i. Interrogatories 1-3
INTERROGATORY NO.1: If you contend that Brandom Holdings, LLC is a party to Exhibit A, please:
(a) State all facts that support your contention; and
[ANSWER: BH Molding 1-534.]
(b) Identify all documents that support your contention.
[ANSWER: BH Molding 1-534.]
INTERROGATORY NO. 2: If you contend that Brandom Holdings, LLC is bound by the terms of Exhibit A, please:
(a) State all facts that support your contention; and
[ANSWER: See complaint and BH Molding 1-534.]
(b) Identify all documents that support your contention.
[ANSWER: See BH Molding 1-534.]
INTERROGATORY NO. 3: If you contend that Brandom Holdings, LLC assumed the obligations of Brandom Southwest, LP under Exhibit A, please:
(a) State all facts that support your contention; and
[ANSWER: Yes see the emails from Phyliss Brennen, David Harvick and Joe Parziale wherein they question what ...