United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN United States District Judge.
before the Court is Plaintiff's Motion to Compel and
Motion for Sanctions (Doc. No. 20). Also at issue is
Defendant's Motion to Strike (Doc. No. 24), to which
Plaintiff has responded (Doc. No. 26). The Court heard
argument from the parties in open court on August 9, 2019,
and now makes its ruling.
Defendant's Motion to Strike
than respond to the substance of Plaintiff's Motion to
Compel, Defendant filed a Motion requesting that the Court
strike the Motion to Compel for failure based upon
Plaintiff's alleged failure to comply with the
requirements of Local Civil Rule 37.1. The Declaration and
correspondence by Plaintiff clearly reflect, however,
Plaintiff's counsel's continued efforts to resolve
this dispute in good faith with opposing counsel, as well as
ample warning to Defendant that Plaintiff would be seeking
the Court's assistance. See Nygaard Decl.
¶¶ 2-19 (Doc. No. 21); Doc. Nos. 21-10, 21-18;
Fed.R.Civ.P. 37(a)(1). And at issue here is a legitimate and
significant discovery dispute. The Motion to Strike (Doc. No.
24) is DENIED.
Plaintiff's Motion to Compel
record before the Court reflects that in December 2018,
Plaintiff served its First Request for Production of
Documents upon Defendant. See Doc. No. 21-1. This
discovery request sought, among other items: “Documents
reflecting any communications between [Defendant] and Richard
Eutsler regarding his unpaid federal tax liabilities, the
Notices of Levy, IRS Correspondence, or communications with
the IRS.” Id. Req. No. 3; see also
Id. Reqs. No. 4, 5, 7, 13. “Document” was
defined to include e-mails and other “electronically
stored information” “in any medium from which
information can be obtained either directly or, if necessary,
after translation by the responding party into a reasonably
usable form.” Id. at 2; see Fed. R.
Civ. P. 34(a)(1)(A). Defendant served its responses on
February 7, 2019, and affirmatively stated: “No such
documents exist.” Doc. No. 21-2, Resp. No. 3.
did not produce any e-mails at that time. In May 2019, after
Plaintiff learned of the existence of responsive emails and
demanded that Defendant search for, identify, and produce
responsive e-mails to Plaintiff, Defendant has done so.
parties' filings and argument make clear that, contrary
to counsel's statement, responsive documents did exist
and were subject to being produced. Defendant has raised no
objection to the content of these discovery requests.
Accordingly, Plaintiff's Motion (Doc. No. 20) is GRANTED
IN PART. See Fed. R. Civ. P. 37(a)(3)(B)(iv).
Defendant shall submit the following to Plaintiff within 14
days of this Order:
1) Supplemental responses and production regarding all
relevant discovery requests previously served upon Defendant
in this lawsuit, see Fed. R. Civ. P. 26(e)(1).
2) An affidavit executed by a knowledgeable representative of
Defendant describing the e-mail searches conducted, including
the individuals whose accounts were searched; the e-mail
addresses, domains, and search terms used; and the other
entities or individuals who conducted or assisted in
conducting these searches.
3) An affidavit executed by a knowledgeable representative of
Defendant describing the data transfer that took place in
January-February 2019, including what data has been lost or
is unavailable and what efforts have been undertaken to
recover any lost e-mail.
Court will reserve its determination on the payment of
movant's expenses contemplated under Federal Rule of
Civil Procedure 37(a)(5)(A).
Plaintiff's Motion for Sanctions
Court shall RESERVE its ruling on Plaintiffs accompanying
Motion for Sanctions (Doc. No. 20) under ...