GMS INDUSTRIAL SUPPLY, INC., Plaintiff, v. G&S SUPPLY, LLC, ET AL., Defendants Civil Case No.: 2:19cv324 United States District Court, E.D. Virginia Filed May 05, 2021 Counsel William A. Lascara, Jeffrey Dennis Wilson, Jesse Brian Gordon,. Thomas Saunders Berkley, Pender & Coward PC, Virginia Beach, VA, for Plaintiff. Robert William McFarland, James Patrick McNichol, Jeanne Elizabeth Noonan, Micaylee Alexa Noreen, V. Kathleen Dougherty, McGuireWoods LLP, Norfolk, VA, for Defendants. Leonard, Lawrence R., United States Magistrate Judge OPINION AND ORDER *1 Before the Court is Defendants G&S Supply, LLC, et al.'s motion for protective order and memorandum in Support. ECF No. 172. Plaintiff GMS Industrial Supply, Inc., filed a memorandum in opposition, ECF No. 173, and Defendants filed a reply, ECF No. 174. The Court held a hearing on the motion on April 28, 2021, at which Mr. Robert W. McFarland argued for Defendants and Mr. Thomas S. Berkley argued for Plaintiff. By its motion, Defendants seek a protective order from the Court which quashes Plaintiff's supplemental requests for production of documents (“RFP”) directed to ten defendants, quashes Plaintiff's request for admissions (“RFA”) directed to five of the defendants, and enjoins Plaintiff from issuing any further discovery requests. For the following reasons, Defendants' motion is GRANTED in part and DENIED in part. I. BACKGROUND On December 15, 2020, Defendants jointly filed a consolidated answer to Plaintiff's third amended complaint. ECF No. 158. In that answer, Defendants asserted thirteen “defenses and affirmative defenses.” Id. The same day, the Court issued a Rule 16(b) Scheduling Order setting Plaintiffs' discovery cutoff date at March 15, 2021. ECF No. 159, ¶ 5 (“Plaintiff shall complete all fact discovery not later than March 15, 2021”) (emphasis in original). On January 7, 2021, Plaintiff propounded separate supplemental RFPs to ten defendants in this case. ECF No. 172 at 2. The RFPs for each defendant were identical, and consisted of twelve separate document requests, each one directing Defendants to produce, with respect to twelve of the thirteen defenses,[1] “all documents in your possession supporting your affirmative defense.” Id., attach 1. For example, RFP #3 stated: “Produce all documents in your possession supporting your affirmative defense in Defendants' consolidated Answers, Defenses and Affirmative Defenses that GMS's claim of owed damages has failed to mitigate its damages.”[2] Id., attach. 1 at 10. On February 4, 2021, Plaintiff served RFAs directed to five defendants. ECF No. 172 at 1, attachs. 3-9. While only one set of RFAs were attached as an exhibit to the instant motion, Mr. Brinkley advised at the hearing that each set of RFAs were specifically tailored to the defendant to whom they were directed. Defendants answered neither the supplemental RFPs nor the RFAs. Instead, they filed the motion for protective order now before the Court. With respect to both the RFPs and the RFAs, Defendants contend that the discovery requests are duplicative, overly broad and burdensome, so as to be well beyond the proportional needs of the case. Defendants further contend that Plaintiff's RFPs and RFAs were promulgated well after the original discovery cutoff date, and the December 15, 2020, Rule 16(b) Scheduling Order should not be viewed to authorize new written discovery after the original discovery cutoff date passed. Defendants claim therefore that they are entitled to a protective order pursuant to Fed. R. Civ. P. 26(b)(2)(C). With respect to the RFPs, Defendants claim they are insufficiently particularized in violation of Rule 34(b)(1)(A), and violate the attorney work product immunity doctrine. Relying on In re Allen, 106 F.3d 582, 608 (4th Cir. 1997) and Sporck v. Peil, 759 F.2d 312, 316 (3rd Cir.), Defendants argue that, by asking defense counsel to identify his thoughts as to which documents support his legal theories, Plaintiff is impermissibly seeking his mental impressions, conclusions and opinions. With respect to just the RFAs, Defendants claim they are impermissibly numerous, duplicative, and substantively improper. Finally, based on what they contend are oppressive discovery tactics designed to drive Defendants out of business through litigation costs, Defendants seek an Order enjoining Plaintiff from promulgating any further discovery. *2 Plaintiff opposes the motion and instead asks the Court to require Defendants to respond to both the supplemental RFPs and RFAs. With respect to the RFPs, Plaintiff contends that the work product immunity does not apply. In their briefing and at the hearing, Plaintiff argues that Defendants have failed to respond to its document requests with any clarity, engaging in a “document dump” instead. Referencing several district court cases outside the Fourth Circuit which enforced RFPs seeking documents that supported certain claims or affirmative defenses of a party, Plaintiff contends that In re Allen and Sporck should be read narrowly, and that the Court should instead follow the principles of In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007 (1st Cir. 1988). Moreover, Plaintiff argues that because of the complexity of the case and the fact that there are so many defendants, neither the RFPs nor the RFAs are overly voluminous or burdensome. II. DISCUSSION A. Legal Standard As is always the case, the Federal Rules of Civil Procedure provide the framework for resolving discovery disputes. Rule 26(b)(1) establishes the scope of discovery: 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. Relevant here, Rule 26(b)(2)(C) sets forth the role of the court in enforcing the scope of discovery: 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 Rule 26(b)(1). Rule 26(c)(1) provides the tools a court may utilize to fulfill its role: A party or person from whom discovery is sought may move for a protective order in the court where the action is pending .... The court may, for good cause shown, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery. Finally, Rule 26(b)(3)(B) sets forth direction to courts when permitting discovery into certain trial preparation material: “If the court orders discovery of these materials, it must protect against disclosure of the mental impressions, conclusion, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” With these principles in mind, the Court analyzes the disputed RFPs and RFAs. B. Supplemental Requests for Production of Documents The Court disposes of two of Defendants' arguments in short order. First, pursuant to the Court's Rule 16(b) Scheduling Order, Plaintiff was entitled to submit written discovery as long as it could be completed before Plaintiff's discovery cutoff deadline. The Court's Order provided specific discovery cutoff dates, was directed to “fact discovery,” and did not include any limitations suggesting either party's discovery tools were in any way circumscribed. ECF No. 159, ¶ 5. While discovery in this case might initially have included an earlier cutoff date that passed prior to Plaintiff's promulgation of its RFPs (and RFAs), that deadline was necessarily superseded by the Court's December 15, 2021, Order. Accordingly, Plaintiff's discovery was not untimely. *3 Second, the supplemental RFPs do not fail the particularity test. Requests for production are provided for and governed by Rule 34. Rule 34(b)(1)(A) provides that the request “must describe with reasonable particularity each item or category of items to be inspected.” As Defendant correctly notes, a “reasonably particular” description must place the responding party on “reasonable notice of what is called for and what is not,” with sufficient information to enable the producing party to identify responsive documents. ECF No. 172 at 5, citing Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D.193, 202 (N.D. W. Va. March 30, 2000) and Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (N.C. M.D. Feb. 14, 1992). However, a request that is directed towards specific affirmative defenses does not fail the reasonable particularity test. Defendants are placed on reasonable notice of what is required, and, as evidenced by their very specific work product immunity objection, have no misconceptions or lack of understanding as to what categories of documents Plaintiff seeks. As defense counsel argued at the hearing, Plaintiff wants to know precisely what documents counsel thinks will support each of Defendants' defenses. Presumably, since he knows his case and the evidence adduced, he knows precisely what documentary evidence he may use to prove these defenses. Consequently, the RFPs are sufficiently particular, even more so than in some cases where this argument has been rejected. See, e.g., St. Paul Reinsurance Co., Ltd. v. Comm. Fin. Corp., 48 F.R.D. 508 (2000) (finding sufficiently particular an RFP seeking “All documents identified, or relied on, in your answers to counterclaim plaintiff's first set of interrogatories directed to counterclaim defendant.”). Where the supplemental RFPs are problematic is the extent to which they seek a response that would disclose the mental impressions and legal opinions of defense counsel. Attorney work product immunity is generally divided into two types: opinion work product, which “involves mental impressions, conclusions, opinions or legal theories ... which is absolutely immune from discovery” and fact work product “prepared in anticipation of litigation or for trial [which] may be discovered, but only with a showing of substantial need.” Nat 7 Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (quotation marks and citations omitted). Defendants aver, and Plaintiff does not dispute, that all relevant documents have been disclosed, and Defendants are not withholding any documents on the basis of the attorney's opinion work product immunity. The gravamen of Defendants' argument is that the RFPs, in effect, seek to require Defendants to have their counsel give his legal opinion to Plaintiff as to what documents support which defenses. Looked at another way, no one could seriously contend that any of the individual defendants would be in a position to respond to these RFPs. Instead, the response would have to be provided by the attorney based on his legal judgment as to the relevance of any particular document. While an RFP seeking, for example, invoices directed to a particular military installation could and would most assuredly be responded to by the party themselves, the instant requests assuredly would not be. Viewed in this light, the precedent established by the Fourth Circuit in In re Allen must compel a conclusion that these RFPs impermissible seek attorney opinion work product. In Allen, attorney Allen was brought into a case to conduct an interval review, and in those efforts prepared a memorandum which, in addition to interview notes and summaries of interviews, included certain employment records she had selected and arranged. The Fourth Circuit found that the attorney's “choice and arrangement [of discoverable documents] constitutes opinion work product because Allen's selection and compilation of these particular documents reveals her thought processes and theories regarding this litigation.” 106 F.3d at 608. The Court emphasized that the personal records themselves were discoverable, but the attorney's selection and arrangement of them was not. Id. The Allen court cited with approval the Third Circuit's decision in Sporck. In that case, the court refused to require an attorney to disclose to opposing counsel the documents he had provided to his client to review prior to a deposition. Finding that “[o]pinion work product includes such items as an attorney's legal strategy, [and] his intended lines of proof...”, the court further held “We believe that the selection and compilation of documents in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product.” 759 F.2d at 316. *4 Taken together, Allen and Sporck stand simply for the unremarkable proposition that a party's lawyer should not be forced to disclose his legal opinion—by organizing already-produced documents for his opponent's benefit—as to what specific evidence applies to which particular legal theory. What Plaintiff seeks is assuredly counsel's opinion. The point is shown by the impossibility of a privilege log here. Although such logs are often produced to generally identify the documents being withheld, as in Allen for instance, as noted supra Defendants have not withheld any documents, so there was no privilege log to create. In effect, in responding to these RFPs, the only thing Defendants could produce would be their counsel's legal opinion categorizing the evidence. Plaintiff seeks to have this Court limit the holding of Allen and Sporck to the specific factual circumstances therein, i.e., a memorandum prepared outside the pending litigation on a collateral matter (Allen), and documents presented to a witness prior to a deposition (Sporck). Plaintiff relies instead on the willingness of the First Circuit to limit the reach of Sporck when it decided In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d at 1015. In re San Juan Dupont Plaza Hotel Fire Litig. (“San Juan Fire Litig.”) was a massive multi-district litigation matter consolidated for discovery purposes in the District of Puerto Rico. The dispute there centered on the district court's adoption of an “identification protocol” as part of its case management order. Id. at 1012. The identification protocol required parties taking depositions to identify five days ahead of time a list of exhibits they intended to use at the deposition. Id. Plaintiffs' representatives complained that requiring them to identify for defendants the 70,000 documents they had culled from a production of more than 2,000,000 would require disclosure of attorney work product, since it would disclose their opinions and mental impressions “of the attorneys who culled the wheat from the chaff.” Id. at 1010. In rejecting their appeal, the First Circuit cited the dissent in Sporck and noted “not every item which may reveal some inkling of a lawyer's mental impressions, conclusions, opinions, or legal theories is protected as opinion work product. Were the doctrine to sweep so massively, the exception would hungrily swallow up the rule.” Id. at 1015. It also determined that any attorney opinion regarding the importance of documents was going to be imminently disclosed at the depositions in any event, and thus there was a less compelling need to protect the information. Id. at 1016 (“The key factor distinguishing such materials from protected opinion work product is that, even absent compelled disclosure, the information will probably come to light during the course of trial, if not before.”). The extraordinary facts in San Juan Fire Litig. make that case inapposite. First, while it is doubtful an opposing party could determine the mental impressions and opinions of another attorney though the identification of tens of thousands of documents, it is much more problematic when the identification is of much more limited number of specific documents tending to prove a specific legal theory, the situation presented here.[3] Second, the information sought, if it be produced now, is the type that otherwise would not be disclosed until trial, if at all. Third, even in rejecting the attorney work product claim, the First Circuit nonetheless observed: “Whatever heightened protection may be conferred upon opinion work product, that level of protection is not triggered unless disclosure creates a real, nonspeculative danger of revealing the lawyer's thoughts.” Id. at 1015. By responding to these RFPs, the danger of revealing defense counsel's thoughts is most assuredly real and nonspeculative because, as noted supra, the only way the requests can be responded to is if counsel provides his legal opinion. *5 Finally, the Court finds the reasoning of Proa v. NRT Mid-All., Inc., No. CV AMD-05-2157, 2008 WL 11363286 (D. Md. June 20, 2008) to be persuasive. In Proa, the plaintiff issued an interrogatory and RFP seeking “all facts, reasons, circumstances and legal contentions to support defendants' affirmative defenses and all related documents.” 2008 WL 11363286 at *22. Defendants objected on the grounds, inter alia, that the discovery requests sought their legal analysis of their affirmative defenses. Id. First, the Court did not read Allen narrowly, as Plaintiff requests here, by finding it limited to the narrow circumstances where a specific memo of an outside attorney is at issue. Instead, the Proa court read Allen more broadly, stating that the “Fourth Circuit has extended the work product protection to documents culled from a larger group of documents.” Id. This Court agrees. Relying on both Allen and Sporck, the court held “to the extent plaintiffs' inquiry seeks factual support for defendants' legal claims and defenses, defendants are ordered to produce such information, by answer to interrogatory. Defendants are not required, however, to identify all documents which in defense counsel's opinion supports the affirmative defenses or claims.' Id. Rule 26(c)(1)(C) would have allowed the Court to consider permitting Plaintiff to proffer contention interrogatories to discover the facts Defendants claim support their affirmative defenses as alternative discovery vehicle. However, at the hearing Mr. McFarland confirmed that Plaintiff had already proffered such discovery, and that Defendants had answered it. Having obtained the information to which it was entitled—the factual basis for Defendants' affirmative defenses Plaintiff may not seek counsel's legal opinion as to what specific documents support those defenses, in his opinion.[4] As Justice Jackson observed years ago, “a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.” Hickman v. Taylor, 329 U.S. 495, 516 (1947) (J. Jackson, concurrence). Consequently, to the extent Defendants request protection from having to respond to Plaintiff's supplemental RFPs, the motion is GRANTED. B. Requests for Admissions Both parties accurately identified the relevant legal standard that sets out the requirements and purpose of RFAs, however their disagreement centers on whether the substance of the requests align with the general “narrowing” purpose of RFAs. Defendants contend that Plaintiff's Requests for Admission “focus on hotly contested areas of this case” and improperly seek to elicit new facts instead of narrowing the areas of fact where there is no real dispute. ECF No. 172 at 5. Defendants also contend the RFAs are unreasonably numerous. Id. Defendants protest the voluminousness of the RFAs on the grounds that Plaintiff has filed “thousands of written discovery requests and after Plaintiff's discovery deadline passed.” ECF No. 174 at 3. Plaintiff contends that the RFAs are properly directed to relevant and permissible issues, and in light of the number of Defendants are not impermissibly numerous. ECF No. 173 at 6. Moreover, the RFAs are directed to only five of the Defendants, and were individually tailored to each one. *6 The Court has reviewed the RFAs that were attached as an exhibit to the briefing. Id, attach. 3-9. Based on that review and Plaintiff's representation at the hearing that the RFAs were individually tailored to the four other Defendants to whom they were directed, the Court disagrees with Defendants' claim that they are substantively improper or impermissibly voluminous. Absent specific objections to specific requests, Defendants' general objections are insufficient under Rule 36(a)(5) to merit quashing the RFAs. Accordingly, to the extent Defendants request protection from having to respond to Plaintiff's RFAs, the motion is DENIED. C. Request to Bar Further Discovery Arguing that Defendants need protection from any potential future discovery, and claiming that Plaintiff is attempting to drive Defendants “out of business through litigation costs,” Defendants seek an Order barring Plaintiff from propounding any further written discovery. ECF No. 172 at 2, 6-7. Plaintiff's fact discovery closed in this case on March 15, 2021. ECF No. 159, ¶ 5. As a result, Defendant's request for this relief is MOOT. D. Request for Attorneys' Fees and Expenses Both parties have requested costs and fees with respect to this motion. See ECF No. 172 at 7 and ECF No. 173 at 7. Having granted the motion only in part, the Court exercises its discretion pursuant to Rule 37(a)(5)(C) and declines to award reasonable expenses for the motion. III. CONCLUSION Defendants' Motion for Protective Order, ECF No. 172, is GRANTED in part and DENIED in part. It is GRANTED to the extent Defendants will not be required to respond to Plaintiff's supplemental requests for production of documents. It is DENIED to the extent Defendants will be required to respond to Plaintiff's requests for admissions. Such responses shall be served within fourteen days of the date of this Order. Defendant's request for an Order barring Plaintiff from submitting additional written discovery is MOOT. Both parties' requests for fees and expenses is DENIED. The Clerk s DIRECTED to forward a copy of this Opinion and Order to all counsel of record. It is so ORDERED. Norfolk, Virginia Footnotes [1] Plaintiff did not include a request for documents which purport to support Defendants' asserted affirmative defense for failure to state a claim under Rule 12(b)(6). [2] Not all of the defenses asserted in the “Defenses and Affirmative Defenses” section of the answer are, in fact, affirmative defenses. See, e.g., Defense #2 (“GMS has not suffered damages in the amount or to the extent alleged from Defendants' alleged conduct.”); Defense #7 (Defendants did not breach any legal duties owed to GMS.”). ECF No. 158. Nonetheless, Plaintiff's RFP referred to each defense as an affirmative defense. [3] Plaintiff represented at the hearing that, altogether, approximately 38,000 pages of records have been produced by defendants, much of which consisted of catalogues and invoices. This is a far cry from the massive number of documents— not just pages—produce in San Juan Fire Litig. [4] Plaintiff relied on several cases from outside the Fourth Circuit which permitted RFPs similar to those sought by Plaintiff here. However, not only were those courts not bound by the precedent established in the Fourth Circuit by Allen, those courts approved RFPs that were different from the ones here. In two of the cases, those RFPs sought the production of documents which identified facts supporting affirmative defenses, not just documents supporting affirmative defenses. See Local Access, LLC v. Peerless Network, Inc., Case No. 6:17-cv-236-Orl-40TBS, 2018 WL 29338393, *3-5 (M.D. Fla. June 12, 2018) (approving RFP seeking “all documents, ESI, and things relating to, referencing, or identifying any facts or information relating to Your assertion that Local Access committed fraud”); EEOC v. Baystate Medical Ctr., Inc., Case No. 3:16-cv-30086-MGM, 2017 WL 48834453, *6 (D. Mass. Oct. 30, 2017) (approving RFP seeking ‘ “all documents and electronically stored information reflecting facts’ supporting Defendants' Affirmative Defenses”). In the third case, the proponent sought documents which had not been previously produced and were “relevant to [defendant's] affirmative defenses [collectively]”; importantly, they did “not seek to discover [defendant's] selective grouping of certain documents together”, thereby distinguishing Sporck. U.S. v. Real Property & Improvements Located at 2366 San Pablo Ave., Berkeley, CA, Case No. 13-cv-02027-JST (MEJ), 2014 WL 3374205, *2 (N.D. Cal. July 9, 2014).