United States District Court, D. South Dakota, Southern Division
UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF ASH EQUIPMENT CO., INC. D/B/A AMERICAN HYDRO; AND ASH EQUIPMENT CO., INC., A MARYLAND CORPORATION; Plaintiffs,
MORRIS, INC., A SOUTH DAKOTA CORPORATION; UNITED FIRE AND CASUALTY COMPANY, AN IOWA CORPORATION; AND RED WILK CONSTRUCTION, INC., A SOUTH DAKOTA CORPORATION; Defendants.
ORDER ON MOTION TO COMPEL BY DEFENDANT MORRIS, INC.
DOCKET NO. 66
VERONICA L. DUFFY, United States Magistrate Judge
a Miller Act action (40 U.S.C. § 3133(b)(3)(B)), brought
by the United States of America for the use and benefit of
Ash Equipment Company, Inc., doing business as American Hydro
(“Hydro”). Defendants are Morris, Inc.
(“Morris), United Fire and Casualty Company
(“UF&CC), and Red Wilk Construction, Inc. (Red
Wilk). Pending before the court is a motion filed by Morris
to compel Hydro to provide certain discovery. See
Docket No. 66. The presiding district judge, the Honorable
Lawrence L. Piersol, referred this motion to this magistrate
judge for a decision. See Docket No. 74.
Morris contracted with the United States Army Corps of
Engineers (“the Corps”) to do work on the Fort
Randall Dam spillway at Pickstown, South Dakota. Morris
obtained a Miller Act payment bond on the project from
defendant UF&CC in the amount of $7, 472, 670.25. The
payment bond obligated Morris and UF&CC jointly and
severally to guarantee payment to any subcontractor of
Morris’ who furnished labor and materials on the
project as well as to persons who had a direct contractual
relationship with Morris on the project.
the project required concrete removal using hydrodemolition
methods as required by the Corps in its project plans and
specifications. Morris subcontracted this work to Red Wilk,
who in turn subcontracted with Hydro. Red Wilk promised to
pay Hydro for Hydro’s work on the project within 10
working days after Morris paid Red Wilk on monthly progress
payments. Hydro brought suit after Red Wilk allegedly failed
to pay for certain claims made by Hydro for completed work on
the project. Hydro gave notice to Morris that it had not been
paid. Hydro’s first notice to Morris claims amounts
unpaid of $520, 135.00; its supplemental notice claimed
unpaid amounts of $1, 168, 018.49. In its complaint, Hydro
asserts a breach of contract claim against Red Wilk, an
equitable claim in quantum meruit against Morris,
and claim against the UF&CC bond.
served Hydro with certain discovery requests on June 19,
2015. See Docket No. 68-1. Morris then deposed the
president and sole owner of Hydro in October, 2015, and asked
questions about, inter alia, Hydro’s
calculation of its damages, including why the supplemental
claim was approximately double the initial amount claimed.
Morris was unsatisfied with the allegedly vague answers given
by Hydro’s president and the dearth of documents
produced. It now seeks an order from the court compelling
Hydro to answer Morris’ interrogatory number nine.
See Docket No. 66. It similarly seeks to compel
responses to Morris’ requests for production numbers
six, ten, eighteen, and twenty-three. Id. Morris
represents that this written discovery must be received in
order that Morris may take a deposition of Hydro pursuant to
Federal Rule of Civil Procedure 30(b)(6). Id.
resists the motion, arguing that the preferred method for
Morris to obtain the information it seeks is (1) to serve
Hydro with requests for the production of documents rather
than interrogatories and (2) to take Hydro’s deposition
pursuant to Rule 30(b)(6) instead of seeking the information
through interrogatories. Hydro also asserts Morris’
discovery requests are vague and that it has already complied
with many of the requests.
Meet and Confer Requirement
Before a party may make a motion to compel another party to
make discovery or disclosure, the movant must certify that
they have in good faith conferred or attempted to confer with
the opposing party from whom the discovery or disclosure is
sought in an attempt to resolve the disagreement without
court intervention. See Fed.R.Civ.P. 37(a)(1).
Morris alleges that it has complied with this requirement.
Hydro does not dispute that assertion. Therefore, the court
considers the motion on its merits.
Standards Applicable to Discovery
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 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
the scope of discovery need not be admissible in evidence to
See 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
(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