Opinion
Case No. 1:05CV00083.
May 31, 2006
ORDER
The Court conducted a telephonic discovery conference on May 26, 2006. All the parties involved in this dispute, Plaintiff and Defendants AGEM Enterprises International, Inc. (AGEM) and Stuart C. Hartman (Hartman) are represented by counsel. The dispute involves the answers to Document Requests which were provided to Plaintiff. The Plaintiff has written correspondence and attachments. These are (1) a letter under date of May 24, 2006 from Jeffrey E. Myers, counsel for Plaintiff with attachments, and (2) a follow-up letter from Mr. Myers describing those Document Requests still at issue, since an agreement was reached with regard to some. The Court invited, but received nothing from Curt Hartman, counsel for the two Defendants. The discovery deadline is September 1, 2006.
DOCUMENT REQUESTS TO AGEM
We shall deal first with the Document Requests as they relate to Defendant AGEM. No. 1 requests that AGEM produce "all of AGEM's financial books and records since its inception." The reason for this request is detailed in Mr. Keffer's letter of March 8, 2006 as "relevant to General Cable's allegations that AGEM received unreasonably favorable terms and actual compensation in its dealings with General Cable" and "to General Cable's claims for damages." The response to Document Request No. 1 was an "Objection" based on relevance and breadth. The reason for AGEM's response is set forth in a letter under date of April 5, 2006 to Mr. Keffer in which he indicated that Plaintiff's complaint is about a contract, negotiated by Defendant Sharon Highlander, between Plaintiff and AGEM, which contract was allegedly unfair to Plaintiff and that Plaintiff has retained an expert witness and already calculated its damages.
The Court's assessment is that the information sought, though relevant, is also unnecessary and that the Document Request is so broad as to be objectionable. AGEM's objection is sustained and it need not provide any additional information in response to Document Request No. 1.
Document Request No. 2 asks AGEM to provide "all federal, state and local tax returns AGEM filed for 2002 and any year thereafter." AGEM's Objection was related to relevance, not scope. The "relevance" is expressed in Mr. Keffer's letter of March 8, 2006 in which he says that "the tax records also go to its actual compensation from General Cable (and any other sources)." Although AGEM's counsel does not specifically address his reasons for the "Objection," it is clear from his letter of May 11, 2006 that he considers Plaintiff's case to be about the commercial reasonableness of the contract between Plaintiff and AGEM and that Plaintiff's own records would show the amount of compensation Plaintiff paid to AGEM, thus further inquiry into AGEM's tax status would simply disclose information irrelevant to Plaintiff's claims.
The Court regards Plaintiff's request as seeking irrelevant and unnecessary information and sustains AGEM's "Objection."
Document Request No. 4 asks for "all documents related to the formation of AGEM." AGEM's response was to say that "The Articles of Incorporation will be produced." Plaintiff indicated in Mr. Keffer's letter of March 8, 2006 that what Plaintiff also sought was "any earlier draft of the Articles, any documents related to the negotiation of the Articles or the terms of AGEM's formation, any government filings related to AGEM's formation and any other documents related to AGEM's formation." AGEM responded in correspondence under date of April 5, 2006 that "there are no early drafts or negotiation-related documents."
The Court finds that AGEM's production of the Articles to be responsive and that the information provided counsel's April 5, 2006 letter to be gracious, but unnecessary. Beyond the production of the Articles, the Document Request seeks information that is irrelevant and unlikely to lead to the production of admissible evidence. AGEM need produce no further response.
Document Request No. 12 asks that AGEM provide "all time sheets submitted to AGEM by any AGEM employee, consultant or independent contractor." AGEM's "Objection" was based on relevance. This Document Request seeks to discover the scope of work actually done by AGEM for Plaintiff. The "relevance" argument was apparently abandoned in favor of one based on necessity as AGEM's counsel relates in his letter of May 11, 2006 that such information was provided to Plaintiff via e-mail and available on its back-up system.
The Court finds the information sought to be directly relevant and that notwithstanding AGEM's position that Plaintiff should have such information, AGEM certainly has access to such information and must provide it.
Document Request No. 13 requests that AGEM produce "all documents relating to the business expenses of any employee, consultant or independent contractor of AGEM (including Hartman), including credit card statements and expense reports."
Notwithstanding AGEM's "Objection" based on relevance, it is obvious that the information, assuming that the scope is limited to those business expenses for which Plaintiff was billed, is directly relevant. AGEM must provide same for the same reason as given for the Court's response to Document Request No. 12.
In Document Request No. 14, General Cable asks AGEM to produce "all documents requested by General Cable in connection with its proposed audits and notices of dispute directed to AGEM between August, 2004 and January, 2005." AGEM's response was based on relevance and the "vague and ambiguous" nature of the question. Plaintiffs reason for making the demand is expressed in counsel's letter of March 8, 2006 and is to determine "whether AGEM's performance of its contractual obligations to General Cable was done in good faith." AGEM's response is to assert that the request is "vague and ambiguous."
The Court's finding is that the demand would be crystal clear without counsel's constant use of phrases like "related to, connected with," etc. Even so, this demand is sufficiently clear to enable AGEM to formulate a response regarding the audits and notices of dispute.
Lastly, Plaintiff requests in Document Request No. 19 that AGEM produce "all documents relating to or referring to any payment made by AGEM to Stuart Hartman." AGEM's responds with a now familiar phrase: "Objection, not relevant nor reasonably calculated to lead to the discovery of relevant evidence." Plaintiff defends this demand as designed to "flesh out the financial relationships between the parties" and to determine the destination of Plaintiff's payments to AGEM. If, as Plaintiff alleges, AGEM underwrote Hartman's outside business ventures and in so doing, charged Plaintiff a commercially unreasonable price for its services, then proof of payments from AGEM to Hartman becomes directly relevant. AGEM shall produce the information requested.
DOCUMENT REQUESTS TO STUART HARTMAN
First, the Court's Local Rules prohibit more than 40 Document Requests without leave of Court. Therefore, the Court will summarily deny Plaintiff's informal "Motion to Compel" with respect to Document request No. 44.
Document request No. 1 asks Hartman to produce "all federal, state and local tax returns you filed for 2002 and any year thereafter." Hartman's response was to raise an "Objection" based on relevance. Counsel's letter of March 8, 2006 says that the purpose is to "examine Hartman's outside interests as well as income and expenses from operating them." Although not succinctly stated, the Court infers that payments made from AGEM to Hartman may have impacted the commercial reasonableness of Plaintiff's payments to AGEM.
Document Request No. 1 makes a legitimate demand, which must be answered.
Document Request No. 3 requests "all documents related to the formation of AGEM." That Request, directed to Defendant Hartman is no more legitimate than the same request directed to AGEM. The Court makes the same Order.
In Document Request No. 6, Plaintiff, having requested and apparently obtained information relative to Par Three, Inc. and Par Four, LLC, now requests "all documents related to the formation of any business entity." Hartman's response was to make an "Objection" based on relevance. Hartman previously identified SCH Consulting group, Inc. as an entity in which he held an ownership interest and also identified the business as inactive. Despite the fact that Hartman's response to Document Request No. 6 is questionable, the fact is that he has responded to the Demand with his answer to Interrogatory No. 2 and need not produce records of an inactive business.
Document Requests Nos. 7-9 that Hartman produce "all documents related to your participation in, creation of, employment with or other affiliation with AGEM, Par Three, Inc., Par Four LLC" produced a response to Document request No. 6 from Hartman in the form of an "Objection" and a statement that the Request was neither relevant or likely to lead to the discovery of admissible evidence. With regard to Document Requests Nos. 8 and 9, Hartman promised to produce them "to the extent that they exist and are non-privileged."
The Court does not approve of such linguistic baloney. Either the documents exist or they do not. Either the documents are privileged or they are not. Hartman shall identify the documents in a privilege log, whether subject to claimed privilege or not, and shall further indicate whether the document is subject to a claim of privilege and if so, why.
Document Requests Nos. 18, 19 and 20 request the same information from Hartman that were requested from AGEM. Hartman's responses are grounded in relevance. The Court previously found the information relevant; however the proper party is make the response is AGEM, not Hartman. Hartman need not supplement his response.
Document Requests Nos. 21-24 ask for copies of correspondence between Hartman and Becky Amyx and between Hartman and Chris Larrimore as well as correspondence referring to either. Hartman's "Objection" to each Request was based on relevance. Plaintiff's reason for the Requests was detailed in counsel's letter of April 18, 2006 and was to explore its theory that Amyx and Larrimore were personal friends of Defendant Highlander and unqualified to work for AGEM . Therefore, the theory is that their service to AGEM resulted in an inflated price to Plaintiff. Hartman does not otherwise explain his position.
The Court regards the information sought as likely to lead to the discovery of admissible evidence and therefore a proper Document Request, for which a response is required.
Lastly, Document Requests Nos. 33 and 34 ask for Hartman to produce "all documents referring or relating to your employment, business activities or receipt of compensation since February 2, 2005" and "all documents relating or referring to any payment made by AGEM to you." Hartman's "Objection" to each Request was based on relevance. However, counsel's letter of May 11, 2006 points to privacy interest as being the real reason.
The Court is unimpressed with the inconsistent responses, but also concerned about the necessity for Hartman to disclose all documents relating or referring to his business activities, other than AGEM and his receipt of compensation from those activities. Hartman shall respond to the Request with documents that concern his activities at AGEM and his compensation from AGEM.
Proper responses shall be tendered on or before June 16, 2006.