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United States v. Morris, Inc.

United States District Court, D. South Dakota, Southern Division

May 24, 2016

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,
v.
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

         INTRODUCTION

         This is 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.

         FACTS

         Defendant 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.

         Part of 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.

         Morris 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.

         Hydro 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.

         DISCUSSION

         A. 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.

         B. Standards Applicable to Discovery

         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 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 be discoverable.

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 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 proposed discovery is outside the scope permitted by ...

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