Summary:The court found that Heartland had an ongoing duty to supplement its production of documents responsive to Request No. 11 until trial due to the direct relevance of the documents sought. The court also declined to exercise its discretion and found that Heartland does not have an ongoing duty to supplement its production of documents responsive to Request Nos. 14 and 21. The court ordered Heartland to supplement its production of documents within seven days and to supplement its production of documents responsive to Request No. 11 on an ongoing basis until trial.
Court:Case No. 19-CV-2323 (PJS/LIB)
Date decided:
Judge:Brisbois, Leo I.
Marco Technologies, LLC, Plaintiff, v. Keith Midkiff, et al., Defendants Court File No. 19-cv-2323 (PJS/LIB) Case No. 19-CV-2323 (PJS/LIB) Filed February 16, 2021 Brisbois, Leo I., United States Magistrate Judge ORDER *1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Plaintiff's Motion for Enforcement of Discovery Order and Sanctions Pursuant to Rule 37(b)(2)(A), Fed. R. Civ. P. [Docket No. 305]. For the reasons discussed below, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Enforcement of Discovery Order and Sanctions Pursuant to Rule 37(b)(2)(A), Fed. R. Civ. P. [Docket No. 305]. I. BACKGROUND AND RELEVANT FACTS For a more complete account of the facts that give rise to the present case and its procedural history, see this Court's prior Orders. [Docket Nos. 76, 278, 291]. On October 8, 2020, this Court issued an Order granting in part and denying in part Plaintiff's first motion to compel. [Docket No. 278]. The present motion relates to the portion of this Court's October 8, 2020, Order that addressed Plaintiff's Request for Production of Documents Nos. 11, 14, and 21 to Defendant Heartland Business Systems, LLC (“Heartland”). (See, e.g., Mem. in Supp. [Docket No. 307], at 3). Request No. 11 seeks documents containing financial and sales information regarding at-issue customers, Request No. 14 seeks documents concerning or relating to communications with at-issue customers, and Request No. 21 seeks documents concerning or relating to communications regarding efforts by Heartland to provide services to at-issue customers. (See, Oct. 8, 2020, Order [Docket No. 278], at 9–15, 16–19). This Court previously limited Request Nos. 11, 14, and 21 to the extent they sought relevant information, and this Court ordered Heartland to produce all documents that were responsive to those requests, as limited, by October 29, 2020. (See, Id. 12–14, 19, 38–39). On October 29, 2020, Heartland supplemented its document production pursuant to this Court's October 8, 2020, Order. (Ledoux Decl. [Docket No. 308] ¶ 2). Heartland's supplemental production included all documents responsive to Request Nos. 11, 14, and 21, as limited, that were created by the close of discovery on September 1, 2020. (Abbate-Dattilo Decl. [Docket No. 317] ¶ 4). On November 13, 2020, Plaintiff sent the first of three deficiency letters to Defendants outlining purported deficiencies with their October 29, 2020, supplemental production of documents. (Ex. 1 [Docket No. 308-1], at 2–3). In relevant part, Plaintiff's deficiency letters demanded that Defendants produce documents created after the close of discovery and supplement that production on an ongoing basis. (Exs. 1, 4, 5 [Docket No. 308-1], at 2–3, 11–12, 14–15). On December 10, 2020, Defendants represented in an email to Plaintiff that they would “supplement their discovery responses with post-August 2020 financial information before December 21, 2020.” (Ex. 6 [Docket No. 308-1], at 17). On December 21, 2020, Defendants supplemented their production of documents, but also refused to provide post-discovery communications or financial information. (See, Ledoux Dec. [Docket No. 308] ¶ 10; see also, Ex. 7 [Docket No. 308-1], at 19–21). *2 Following additional communications and a fourth deficiency letter, the Parties eventually exchanged updated profit information in mid-January 2021, and Defendants provided Plaintiff with “a spreadsheet reflecting revenue and gross profit received for each of the at-issue customers” for each month from September 2020 through December 2020. (See, Abbate-Dattilo Decl. [Docket No. 317] ¶¶ 5–6; see also, Ledoux Decl. [Docket No. 308] ¶¶ 11–14 Exs. 8–10 [Docket No. 308-1], at 23–31). On January 15, 2021, Defendants filed a letter on CM/ECF requesting a case-management conference with the undersigned to resolve the Parties’ dispute regarding the scope of this Court's October 8, 2020, Order. (Defs.’ Letter [Docket No. 303]). On January 19, 2021, this Court scheduled a telephonic status conference with the Parties for January 22, 2021, pursuant to Defendant's request. (Text-Only Order [Docket No. 304]). On January 20, 2021, Plaintiff filed its present motion. (Plf.’s Mot. [Docket No. 305]). Upon considering Defendants’ January 15, 2021, letter and reviewing Plaintiff's motion, it became evident to this Court that the Parties in their dispute seek to clarify their different interpretations of this Court's October 8, 2020, Order. (Text-Only Order [Docket No. 315]). Finding that no additional information or argument would be needed once Defendants filed a responsive brief to Plaintiff's present motion, this Court cancelled the previously scheduled status conference, as well as, the hearing on Plaintiff's motion, and the Court took this matter under advisement on the Parties’ written submissions on January 21, 2021. (Id.). II. ANALYSIS The Parties in their present dispute simply seek to clarify their different interpretations of this Court's October 8, 2020, Order.[1] However, the Parties do not dispute the substance of the documents that this Court ordered to be produced. The Parties merely dispute the date to which those documents must be produced. Hence, the only issue presently before this Court is the temporal scope of the document production that is required pursuant to the October 8, 2020, Order. (See, Defs.’ Letter [Docket No. 303]; Plf.’s Mot. [Docket No. 305]; Mem. in Supp. [Docket No. 307]; Mem. in Opp'n [Docket No. 316]).[2] *3 As already noted, in the October 8, 2020, Order, this Court ordered Heartland to produce all documents that were responsive to Request Nos. 11, 14, and 21, as limited, no later than October 29, 2020. (Oct. 8, 2020, Order [Docket No. 278], at 12–14, 19, 38–39). This Court did not limit that production to responsive documents created by the close of discovery on September 1, 2020. Nor did this Court order Heartland to supplement their production on an ongoing basis. (See, Oct. 8, 2020, Order [Docket No. 278]). Therefore, this Court's October 8, 2020, Order requires Heartland to produce all responsive documents through the date of production, October 29, 2020, but it does not require Heartland to produce any documents after that date. (See, Id.).[3] In addition to the obligations imposed by this Court's October 8, 2020, Order, however, Heartland has a separate and independent obligation under Federal Rule of Civil Procedure 26(e) to supplement its discovery responses. Pursuant to Rule 26(e)(1), a party must supplement its response to a request for production “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing” or “as ordered by the court.” Fed. R. Civ. P. 26(e)(1). “The duty to supplement continues past the discovery deadline and up to the time of trial.” Fair Isaac Corp. v. Fed. Ins. Co., No. 16-cv-1054 (WMW/DTS), 2021 WL 243607, at *4 (D. Minn. Jan. 20, 2021). This ongoing duty may include documents that were created after the close of discovery. See, Reinsdorf v. Sketchers U.S.A., Inc., No. 10-7181 DDP (SSx), 2013 WL 12116416, at *8 (C.D. Cal. Sept. 9, 2013) (“[D]ocuments created after the close of discovery must be produced pursuant to the duty to supplement where documents exist that undermine or contradict the earlier response.”); Iweala v. Operational Techs. Servs., Inc., No. 04-02067 (RWR), 2010 WL 11583114, at *2 (D.D.C. 2010) (citation omitted) (“Excluding documents created after the close of discovery from the duty to supplement would encourage parties to wait until after discovery has closed to create documents containing potentially damaging information. Therefore, this Court finds that the duty to supplement certain discovery disclosures can extend beyond the close of discovery.”). Nevertheless, a party is not automatically obligated under Rule 26(e) to produce “all documents falling under a request for production that were created after the close of discovery.” Thompson v. Retirement Plan for Emps. of S.C. Johnson & Sons, Inc., Nos. 07-cv-1047, 08-cv-0245, 2010 WL 2735694, at *1 (E.D. Wis. July 12, 2010). “Instead, cases require post-discovery supplementation under particular circumstances, such as when use of the previously-undisclosed discovery unfairly disadvantages or surprises the opposing party.” Id. *4 Determining the existence of a duty to supplement under Rule 26(e) is within the sound discretion of the court. See, Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir. 1979); see also, Belcher v. Lopinto, No. 18-7368, 2020 WL 6144839, at *3 (E.D. La. Oct. 20, 2020) (“[M]any courts that have found a continuing duty to supplement discovery with material produced after the discovery deadline have also noted the discretionary nature of this decision.”). “Courts have exercised their discretion to find a duty to supplement with post hoc material where such material was relevant to the matter and non-prejudicial to the producing party.” Belcher, 2020 WL 6114839, at *3. Here, Request for Production of Documents No. 11 seeks documents containing financial and sales information regarding at-issue customers. These documents are directly and highly relevant to Plaintiff's claimed damages. Although Heartland has produced a spreadsheet containing revenue and gross profit information for at-issue customers, this Court has already found that “the underlying documents that refer, relate, or pertain to Plaintiff's damages claims are discoverable.” (See, e.g., Oct. 8, 2020, Order [Docket No. 278], at 18–19). Moreover, this Court has also already found that Plaintiff's potential damages continue to accrue. (See, e.g., Dec. 7, 2020, Order [Docket No. 291], at 25–28) (finding that information related to potential post-agreement consequential damages was relevant and therefore discoverable). Due to the direct relevance of the documents sought by Request No. 11, Plaintiff will be greatly disadvantaged in proving its potential claims for damages if Heartland does not supplement its production. In addition, the burden on Heartland in supplementing its production is minimal because the financial and sales information sought relates only to a limited number of at-issue customers. Therefore, this Court exercises its discretion and finds that Heartland has an ongoing duty pursuant to Rule 26(e) to supplement its production of documents responsive to Request No. 11 until trial. See, Gamevice, 2019 WL 5565942, at *3 (ordering the supplementation of documents containing financial information beyond the close of discovery); Everlight Electronics Co., Ltd. v. Nichia Corp., No. 12-cv-11758, 2015 WL 412184, at *3 (E.D. Mich. Jan. 30, 2015) (ordering the supplementation of documents containing sales information that was relevant to damages). Request for Production of Document Nos. 14 and 21 seek documents concerning or relating to communications with at-issue customers and communications regarding efforts by Heartland to provide services to at-issue customers. (Oct. 8, 2020, Order [Docket No. 278], at 10–11). Those communications are primarily relevant to Defendants’ liability. That relevancy is not limited to initial contacts. (Id. at 12). However, the relevancy of those communications to liability necessarily diminishes the further they become from the initial contact. As noted in this Court's December 7, 2020, Order, there can be no breach of Midkiff and Urzendowski's non-compete agreements, and thus no liability, where initial contact with Plaintiff's customer was made after the expiration of those non-compete agreements. (Dec. 7, 2020, Order [Docket No. 291], at 28–29). Urzendowski's non-compete agreement expired in June 2020, and Midkiff's non-compete agreement expired in August 2020. (See, Am. Compl. [Docket No. 54] ¶¶ 28, 41; Exs. 1, 2 [Docket No. 54-1], at 1–12). This Court has already Ordered the production of documents responsive to Request Nos. 14 and 21, as limited, through October 29, 2020. (See, Oct. 8, 2020, Order [Docket No. 278], at 12–14). Thus, any subsequent communications would be far-removed from the initial contact, and any supplemental documents would be of limited, if any, relevance to establishing liability. *5 Moreover, the burden on Heartland in supplementing its production of those documents would be great. Request Nos. 14 and 21 broadly seek documents concerning or related to all communications Midkiff and Urzendowski have had with at-issue customers or about Heartland's efforts to provide services to at-issue customers. (Id. at 10–14). Defendants continue to do business with at-issue customers, and in doing so, Defendants generate documents responsive to Plaintiff's broad requests on a daily basis. (See, Abbate-Dattilo Decl. [Docket No. 317] ¶ 13). Given the limited relevance, if any, of supplemental documents that are responsive to Request Nos. 14 and 21, the Court finds that any disadvantage to Plaintiff if Heartland does not supplement its production will be de minimus. Conversely, the burden on Heartland to supplement its production would be heavy. Therefore, this Court declines to exercise its discretion and finds that Heartland does not have an ongoing duty pursuant to Rule 26(e) to supplement its production of documents responsive to Request Nos. 14 and 21. See, Belcher, 2020 WL 6144839, at *3 (declining to exercise discretion and order supplementation where information sought was “of minimal relevance”); Thompson, 2010 WL 2735694, at *1 (denying request to compel supplementation where there was no unfair prejudice or surprise and the information sought was of questionable relevance); see also, Everlight Elecs. Co., 2015 WL 412184, at *3 (denying request to supplement communications but granting request to supplement documents directly related to damages).[4] I. CONCLUSION For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Plaintiff's Motion for Enforcement of Discovery Order and Sanctions Pursuant to Rule 37(b)(2)(A), Fed. R. Civ. P., [Docket No. 305], is GRANTED in part and DENIED in part, as set forth above. Heartland shall supplement its production, as set forth above, within seven (7) days of this Order. Pursuant to this Court's October 8, 2020, Order, [Docket No. 278], Heartland must produce all documents responsive to Plaintiff's Request for Production of Documents Nos. 11, 14, and 21, as limited, through October 29, 2020. Pursuant to Federal Rule of Civil Procedure 26(e), Heartland must further supplement its production of documents responsive to Request No. 11, as limited, on an ongoing basis until trial. Footnotes [1] The Parties also each seek an award of expenses, including attorneys’ fees, incurred in relation to the present motion. (Plf.’s Mot. [Docket No. 305]; Mem. in Opp'n [Docket No. 316], at 20–21). The Court DENIES the Parties’ requests for expenses and attorneys’ fees. [2] Both Parties through different vehicles are seeking the same relief: clarification of this Court's October 8, 2020, Order. (See, Defs.’ Letter [Docket No. 303]; Plf.’s Mot. [Docket No. 305]). The notion, as Defendants contend, that one of those vehicles is untimely while the other is not is frankly absurd. Moreover, other courts have held that motions to enforce a duty to supplement pursuant to Rule 26(e) may be brought after the termination of discovery. See, e.g., Gamevice, Inc. v. Nintendo Co. Ltd., No. 18-cv-1942-RS (TSH), 2019 WL 5565942, at *3 (N.D. Cal. Oct. 29, 2019) (finding local rule did “not bar motions to enforce the supplementation requirement in Rule 26(e), even if they are brought more than seven days after the close of discovery”); Gorzynski v. Jet Blue Airways Corp., No. 03CV774A, 2012 WL 712067, at *4 (W.D.N.Y. Mar. 5, 2012) (finding the duty to supplement under Rule 26(e)(1) “can be compelled ... by a motion to compel despite the fact that the discovery deadline has long passed”). [3] This Court notes that Plaintiff's Request for Production of Documents No. 11 seeks responsive documents “from January 1, 2019 to the present.” (Id. at 16–17) (emphasis added). However, this Court finds that “to the present” does not limit the documents requested to the date that the request was made. Plaintiff indicated in its instructions for its requests that they “shall be deemed continuing and require supplementation,” (See, Ex. 1 [Docket No. 317-1], at 2), and Defendants have already produced responsive documents beyond the date the request was served. See, Gamevice, Inc., 2019 WL 5565942, at *2–3 (citing Finjan, Inc. v. Bitdefender Inc., No. 17-cv-04790-HSG (TSH), 2019 WL 3564443, at *2 (N.D. Cal. Aug. 6, 2019)) (noting that “to the present day” is ambiguous and finding that production of documents beyond the date of the request indicated the parties had a broader understanding of “to the present day” which did not limit the request to the date it was served); United States v. State, No. 11-470-JWD-RLB, 2015 WL 5565630, at *2 (M.D. La. Sept. 21, 2015) (rejecting the argument that requests stating “to the present” were “ ‘self-limiting’ such that no duty to supplement exist[ed]”); Hall v. Mo. Highway & Transp. Comm'n, No. 4:96CV1042 SNL, 2001 WL 861739, at *1 (E.D. Mo. Apr. 5, 2001) (“Many interrogatories or requests for production include the language ‘to the present.’ However, it is assumed that the information will be supplemented up to the time of trial as is required by federal law.”). [4] Plaintiff argues that documents responsive to Request Nos. 14 and 21 may reveal in-progress deals with at-issue customers. (Mem. in Supp. [Docket No. 307], at 13–15). However, Request Nos. 14 and 21 broadly seek vast amounts of documents beyond those, if any, which relate to deals that may be in progress. This Court's December 7, 2020, Order already addressed Plaintiff's Request for Production of Documents No. 29, which presented a narrowly tailored request for documents related to still in-progress, but not yet completed proposals or sales, if any. (Dec. 7, 2020, Order [Docket No. 291], at 24–30). After limiting Request No. 29 for relevancy, this Court ordered Heartland to produce all responsive documents, if any, or affirmatively state that no such documents exist. (Id. at 29–30). The present clarification does not in any way limit Heartland's obligations in reference to Request No. 29, which relates directly to Plaintiff's potential claims for damages. Heartland must supplement its responses to Request No. 29 pursuant to Federal Rule of Civil Procedure 26(e).