United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO COMPEL
E. SCHREIER UNITED STATES DISTRICT JUDGE
Beef Products, Inc., filed a complaint against defendant,
Michael Hesse, alleging a breach of contract claim for
solicitation of employees. Docket 64. Beef Products moves to
compel Hesse and interested parties, Automatic Equipment
Manufacturing Co., Jeff Carlson, Cameron Jacobs, Alec Hannah,
Chuck Szitas, Britton Wall, and Bryce Snyder (collectively,
“Third Parties”), to respond to specific
discovery requests for production and forensic examinations.
Docket 125. Hesse resists the motion to compel. Docket 132.
The Third Parties also resist the motion. Docket 131. For the
following reasons, Beef Products' motion to compel is
January 26, 2018, Beef Products served its First Set of
Interrogatories and its First Set for Request for Production
on Hesse. Docket 127 ¶ 3; Docket 127-6. On February 9,
2018, Beef Products served Third-Party Subpoenas on Carlson,
Jacobs, Wall, Szitas, Snyder, Hannah, and Automatic. Docket
127 ¶ 4. Beef Products, Hesse, and the Third Parties
participated in written discovery. Id. ¶ 5.
There have been several discovery disputes between the
parties; the parties have filed three motions to compel.
Id. ¶ 5; see Dockets 32, 55, 80.
letter to Hesse's counsel, dated March 11, 2019, Beef
Products identified eight outstanding categories of documents
that were responsive to Beef Products' discovery
requests. Docket 127 ¶ 6. On March 13, 2019, Hesse
responded that the March 11th letter was the first time Beef
Products raised these issues; he stated that he would
“do [his] best to timely respond.” Docket 127-1
at 8. On March 15, 2019, Hesse had not provided a substantive
response to the March 11th letter, so Beef Products asked
Hesse for a response date. Docket 127 ¶ 7; Docket 127-1
at 10. On March 19, 2019, Hesse responded that his
“goal” was to provide a written response by April
1, 2019. Docket 127-1 at 12. On March 20, 2019, Beef Products
asked Hesse and Automatic to provide a response by March 22
as to whether they intended to respond to Beef Products'
requests or whether any documents would be produced.
Id. at 14. That same day, Hesse responded that he
produced several responsive documents and did not see how his
production was deficient. Id. at 16. On March 21,
2019, Beef Products sent an email describing why Hesse's
discovery was deficient. Id. at 19.
March 22, 2019, Hesse emailed Beef Products a timeline
regarding the current discovery dispute. Id. at
22-24. Hesse maintained his position that he produced all
responsive documents and alleged that any attempt for
judicial relief for the dispute was premature. Id.
at 23. On March 25, 2019, Beef Products responded that though
Hesse had produced documents responsive to the eight
categories of outstanding discovery, there were still
“holes” in his production. Id. at 26-30.
In this email, Beef Products provided a list of the types of
documents it believed Hesse should produce in response.
Id. at 26-29.
March 27, 2019, Hesse responded that he was amendable to
producing documents to respond to some of the requests, but
he viewed other requests to be unduly burdensome and
disproportionate. Id. at 32. Hesse informed Beef
Products that he did not believe he could produce the
requested documents by the April 3rd deadline because he was
focused on producing other documents that were due April 8th.
Id. The next day, Beef Products inquired about the
date that the requested documents would be produced.
Id. at 34. On April 1, 2019, Hesse emailed Beef
Products that he was working with Automatic to produce
documents around April 19th. Id. at 36. On April 19,
2019, Hesse began producing responsive documents.
Id. at 40. But on April 23, 2019, Beef Products
informed Hesse by email that he was still deficient in
producing responsive documents beyond his initial production
on April 19th. Id. at 42. Hesse did not respond.
Docket 127 ¶ 11.
Products also met and conferred with the Third Parties by
phone and email to discuss the outstanding discovery,
privilege and redaction logs, and forensic examination.
Id. ¶ 12. On February 11, 2019, Beef Products
and the Third Parties had a meet-and-confer call.
Id.; see Docket 127-2 at 5-9. On the call,
the Third Parties agreed to produce Carlson's
supplemental production responses and their privilege and
redaction logs by March 15, 2019. Docket 127 ¶ 12. Beef
Products inquired about conducting a forensic examination of
the Third Parties' computer systems and devices.
Id. ¶ 13; Docket 127-2 at 9.
the meet-and-confer call, the Third Parties informed Beef
Products that they would not agree to a forensic examination.
Docket 127-2 at 11. The Third Parties also requested two
extensions of the deadline for their response to the February
11th letter and for production of the requested items.
Id. at 18, 22; Docket 127 ¶ 14. Beef Products
was reluctant to grant the extensions, but agreed to both.
Docket 127 ¶¶ 14, 15; Docket 127-2 at 20, 24, 28.
On two occasions Beef Products emailed the Third Parties
inquiring about the status of the outstanding discovery.
Docket 127 ¶ 15; Docket 127-2 at 24, 26. On April 23,
2019, Beef Products told the Third Parties that it intended
to seek relief from the court because of the extended delay
in production. Docket 127-2 at 32. In response, the Third
Parties noted the large amount of discovery they were
involved in and that they were continuing to work on
producing supplemental discovery and the logs. Id.
3, 2019, Beef Products filed the present motion to compel
forensic examination and production of documents. Docket 125.
Rule of Civil Procedure 26 governs the scope of discovery in
civil matters, providing:
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
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). If a party does not produce
requested documents, the party seeking discovery requests may
move for an order compelling production. See Fed. R.
Civ. P. 37(a)(3)(B).
scope of discovery under Rule 26(b) is extremely broad.
See 8 Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 2007 (3d ed.
2015). The reason for the broad scope of discovery is that
“[m]utal 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. (quoting
Hickman v. Taylor, 329 U.S. 495, 507 (1947)). The
federal rules distinguish between discoverability and
admissibility of evidence. Thus, the rules of evidence assume
the task of keeping out incompetent, unreliable, or
prejudicial evidence at trial. But these considerations are
not inherent barriers to discovery. Christensen v.
Quinn, 2013 WL 1702040, at *4 (D.S.D. Apr. 18, 2013).
Products moves to compel Hesse to produce relevant,
non-privileged documents responsive to Beef Products'
First Set of Requests for Production (Docket 127-6). Docket
125 at 1; Docket 126 at 17-18. Beef Products alleges that
Hesse has outstanding or deficient discovery for seven
categories of documents. Docket 126 at 18-19; see
also Docket 127-1 at 4-6. Hesse argues that he produced
all responsive documents for these requests and supplemented
his responses. Docket 132 at 3. The court will address each
of the seven categories in turn.
Documents Evidencing Salary, Bonus, and Benefits Paid to the
Subject Individuals for the Relevant Time Period
Products made a number of requests for production that relate
to the compensation and benefits of the Subject Individuals.
Docket 127-1 at 5.
REQUEST NO. 19: Any and all DOCUMENTS RELATING TO the
compensation AUTOMATIC has paid or will pay each of the
SOLICITED EMPLOYEES, including, but not limited to, salary,
bonus, and benefits.
REQUEST NO. 22: Any and all DOCUMENTS sufficient to show the
compensation AUTOMATIC has paid or will pay individuals
within AUTOMATIC's sales group or department during the
RELEVANT TIME PERIOD, including, but not limited to, salary,
bonus, and benefits.
REQUEST NO. 71: ANY and all DOCUMENTS RELATING TO
compensation paid to the SOLICITED EMPLOYEES during the
RELEVANT PERIOD, including, but not limited to, commissions,
“fixed salary, ” and “perks.”
Docket 127-6 at 12, 13, 20.
objects to this category and argues that he produced the
personnel files for the Subject Individuals. Docket 132 at 3.
Hesse states that the personnel files contain compensation
information, W-2s showing 2017 and 2018 salaries, benefit
information, employee handbook, and documents covering
travel, vacation, and retirement information. Id.
Hesse also argues that if Beef Products has any additional
questions regarding this topic, Beef Products can ask such
questions at the depositions. Id. at 4.
Products contends that the personnel files do not contain
sufficient information to fully respond to the requests.
Docket 142 at 13. First, Beef Products would like Hesse to
produce W-2s from 2016. Id. Second, Beef Products
alleges that the benefits information only pertains to those
currently offered in 2019 and does not provide information
for 2016-2018. Id. at 14.
does not object to the relevancy of these requests. Thus, the
court considers the requests to be relevant. Hesse needs to
produce W-2s for the Subject Individuals and Automatic's
employees for 2016. Additionally, Hesse must produce any
benefit documents for the Subject Individuals and
Automatic's other sales employees for 2016-2018.
Documents Evidencing the Start of Health and/or other
Benefits for the Subject Individuals
Products' requests #19 and 22 call for the production of
documents that refer to the start of benefits for the Subject
Individuals. Docket 127-1 at 5; Docket 127-6 at 12, 13. Hesse
objects to the motion as it relates to this category and
argues that the category does not fall within the scope of
the requests. Docket 132 at 5.
#19 pertains to “any and all documents
relating” to compensation including benefits.
Docket 127-6 at 12 (emphasis added). The term
“relating” encompasses the start date of health
and other benefits. Thus, this objection is overruled.
also objects to this category because he already produced
this information. Hesse alleges that he produced information
regarding benefits given to the salespeople (health,
financial, and wellness benefits) and information about offer
and hire dates for the Subject Individuals. Docket 132 at 5.
Beef Products argues that Hesse has not produced any
documents that show the date the Subject Individuals started
to receive benefits from Automatic. Docket 142 at 15. The
documents produced showing the offer and hire dates are not
responsive to the requests for production on the
benefits' start dates. The fact that an employee was
offered a job or hired on a certain date does not illustrate
when the employee began to receive benefits.
Products' motion to compel for this category of documents
is granted. Hesse should provide any documents that show the
start of health and/or other benefits for the Subject
Full Salary and Compensation Information for Individuals
Employed in Sales Positions at Automatic other than the
Solicited Employees, including ...