District of Columbia for the Use and Benefit of Z-Modular, LLC v. McN Build, Inc. ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DISTRICT OF COLUMBIA ex rel. )
Z-MODULAR, LLC, )
)
Plaintiff, )
)
v. ) Case No. 18-cv-2947 (RJL/GMH)
)
MCN BUILD, INC., et al., )
)
)
Defendants. )
____________________________________)
MEMORANDUM OPINION AND ORDER
In this action centers on two construction contracts between Plaintiff Z-Modular, LLC
(“Plaintiff” or “Z-Modular”) and one of the Defendants, MCN Build (“Defendant” or “MCN”).
Plaintiff has filed a motion to compel amended discovery responses from Defendant. 1 For the
reasons that follow, Plaintiff’s motion is granted in part and denied in part.
I. BACKGROUND
Plaintiff designs, engineers, and constructs modular buildings. ECF No. 1, ¶ 3. In May
2017, Defendant contracted with the District of Columbia to build two multi-family housing de-
velopments, one in Ward 7 (the “Ward 7 Project”) and one in Ward 8 (the “Ward 8 Project”). Id.,
¶ 7. Defendant entered into two materially identical subcontracts with Plaintiff to design, engineer,
and construct those buildings—the “Ward 7 Agreement” and the “Ward 8 Agreement.” Id., ¶¶ 14,
16.
1
The docket entries most relevant to the resolution of this motion are: (1) Plaintiff’s Complaint (ECF No. 1); Defend-
ant’s answer and counterclaims (ECF No. 15); (3) Plaintiff’s motion to compel (ECF No. 30) and its exhibits; (4)
Defendant’s opposition (ECF No. 35) and its exhibits; and (5) Plaintiff’s reply (ECF No. 36) and its exhibits.
The Complaint alleges that Plaintiff completed the Ward 7 Project on June 22, 2018, and
the Ward 8 Project on August 2, 2018, and that under the two agreements, Defendant was obligated
to pay it a total of $8,082,401.73. Id., ¶¶ 26, 29, 31, 39. However, according to Plaintiff, Defendant
has remitted only $1,402,143.75, leaving an unpaid balance of $6,680,257.98. Id., ¶40. Plaintiff
alleges that Defendant has thereby breached the contracts. 2 Id., ¶¶ 52–61.
Defendant has asserted certain affirmative defenses, among them that Plaintiff’s claims are
barred by the doctrines of unclean hands, estoppel, and waiver. ECF No. 15, ¶¶ 77, 81, 84. De-
fendant also alleges, by way of counterclaim, that Plaintiff failed to complete its work by the dead-
lines set in the Ward 7 Agreement and the Ward 8 Agreement and that Plaintiff’s submission of
revised schedules projecting completion dates after those deadlines constituted anticipatory
breaches of the agreements. Id., ¶¶ 105, 108, 115–116, 119–120. Plaintiff’s alleged failure to
timely execute its work reportedly required Defendant to incur expenses totaling $6,443,049.00. 3
Id., ¶¶ 125–130.
In February 2020, Plaintiff filed a motion to compel contending that Defendant’s responses
to eighteen of Plaintiff’s requests for admissions (RFAs), two of Plaintiff’s interrogatories, and
one of Plaintiff’s requests for production of documents are insufficient. ECF No. 30-1. After that
motion was fully briefed, this case was referred to the undersigned for management of all non-
dispositive matters, including discovery disputes. The undersigned held a telephonic discovery
hearing on the motion on July 13, 2020 (the “July 13 Hearing”), at which a ruling on each of the
2
Plaintiff also seeks recovery from Defendant in quantum meruit and asserts claims against Zurich American Insur-
ance Co. and Fidelity and Deposit Co. of Maryland for allegedly failing to pay Plaintiff for its labor, materials, and
services pursuant to payment bonds they issued on behalf of Defendant. ECF No. 1, ¶¶ 10, 42–51, 62–71. Those
claims are irrelevant to the dispute here.
3
Defendant also alleges that Plaintiff is liable for payment of two performance bonds executed in favor of Defendant.
ECF No. 15, ¶¶ 89, 109–110, 131–162. Those claims are also irrelevant to the dispute here.
2
disputes was announced from the bench. This Memorandum Opinion and Order memorializes and
more fully explains those rulings.
II. DISCUSSION
A. RFAs
Requests for Admissions are governed by Rule 36 of the Federal Rules of Civil Procedure.
That rule “requir[es] the respondent to ‘admit,’ ‘specifically deny,’ or ‘state in detail the reasons
why the answering party cannot truthfully admit or deny [the matter]’ in response to each Request
for Admission.” Light v. Carranza, No. 08-cv-1074 (RMU/AK), 2011 WL 13244745, at *2
(D.D.C. Sept. 28, 2011) (second alteration in original) (quoting Fed. R. Civ. P. 36(a)(4)). A party
may provide a qualified answer as long as the answer “specif[ies] the part admitted and qualif[ies]
or den[ies] the rest.” Fed. R. Civ. P. 36(a)(4); see also Mir v. Kirchmeyer, No. 12cv2340, 2016
WL 3430559, at *2 (S.D. Cal. June 22, 2016) (“Qualified answers are proper if the responding
party specifies the part admitted and qualifies or denies the rest.”). If the responding party believes
a request to be improper, it may object to the request or move for a protective order. See, e.g.,
Foretich v. Chung, 151 F.R.D. 3, 5 (D.D.C. 1993).
“The party requesting admissions ‘may move to determine the sufficiency of an answer or
objection.’” Light, 2011 WL 13244745, at *2 (quoting Fed. R. Civ. P. 36(a)(6)). If the court finds
that an answer does not comply with the dictates of Rule 36, “the court may order either that the
matter is admitted or that an amended answer be served.” Id. (quoting Fed. R. Civ. P. 36(a)(6)).
However, deeming a matter admitted is a “severe sanction” that should be imposed only “where it
has been demonstrated that a party has intentionally disregarded the obligations imposed by Rule
36(a).” Stark-Romero v. Nat’l R.R. Passenger Co. (AMTRAK), 275 F.R.D. 551, 556 (D.N.M.
2011) (quoting Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1247 (9th Cir. 1981)); see also,
3
e.g., Wiwa v. Royal Dutch Petroleum Co., Nos. 96 Civ. 8386 (KMW)(HBP), 01 Civ. 1909
(KMW)(HBP), 2009 WL 1457142, at *5 (S.D.N.Y. May 26, 2009) (“Deeming a matter as admit-
ted is a ‘severe sanction.’” (quoting 7 Moore’s Federal Practice §36.12[3] (3d ed. 2009))); JZ
Buckingham Invs. LLC v. United States, 77 Fed. Cl. 37, 46 (Fed. Cl. 2007) (“In fact, many federal
courts are disinclined to deem matters admitted when they find the responding party’s answers to
requests for admission to be deficient.” (citing Kendrick v. Sullivan, No. 83-3175 (CRR), 1992
WL 119125, at *5 (D.D.C. May 15, 1992))).
1. Allegedly Evasive Answers
Plaintiff argues that Defendant’s answers to twelve RFAs—RFA Nos. 1, 5, 9, 11, 17, 19,
23, 24, 26, 29, 32, and 35—are “evasive.” ECF No. 30 at 5. Each of those RFAs is in a similar
form, asking Defendant to admit that certain provisions in the Ward 7 Agreement and the Ward 8
Agreement required certain conduct by one or both of the parties. For example, RFA Nos. 1 and
5 concern Section 1.0 of Exhibit A in each of the agreements and ask Defendant to admit that the
under that section, “Z-Modular and MCN agreed that Z-Modular would provide podium steel de-
sign and engineering services on a time and materials basis.” 4 ECF No. 30-10 at 3, 4. In response,
Defendant “[a]dmitted only that under Section 1.0 of Exhibit A . . . Z-Modular agreed to provide
‘podium steel design and engineering . . . on [a] T&M basis . . . [.]’” 5 Id. (quoting ECF No. 30-13
at 19 (Ward 7 Agreement, Exh. A, § 1) and ECF No. 30-14 at 19 (Ward 8 Agreement, Exh. A, §
1)). Defendant provided a similar response to each of Plaintiff’s RFAs that were similarly worded,
“admitting” them by parroting the language of the agreements—or, as Defendant would have it,
4
Construction contracts are generally paid on a “fixed price” basis or a “time and materials” basis. “A fixed price
basis means that the line item for work would have an agreed-upon price prior to work commencing. A ‘time and
materials’ contract is one where the customer is billed on an ongoing basis as labor is expended and materials are
used.” Jones Boat Yard, Inc. v. M/V CAPELLA C, No. 06-21203-CIV, 2006 WL 3664405, at *2 (S.D. Fla. Nov. 17,
2006).
5
At the July 13 Hearing, Defendant admitted that “a T&M basis” means a “time and materials basis.”
4
making an “admission qualified only by recitation of the actual language in the provision at issue.”
ECF No. 35 at 6.
Those answers are insufficient. In effect, they assert merely that the documents speak for
themselves. Such responses have generally been held inadequate when proffered in connection
with an RFA. See, e.g., D.R.A. Servs., LLC v. Hallmark Ins. Co., No. 13-CV-172, 2014 WL
11498163, at *5 n.2 (D. Wyo. Feb. 25, 2014) (collecting cases); cf. Sigmund v. Starwood Urban
Retail VI, LLC, 236 F.R.D. 43, 46 (D.D.C. 2006) (“[O]bjections that documents . . . ‘speak for
themselves’ . . . are improper[.]” (ellipses in original) (quoting Diederich v. Dep’t of the Army, 132
F.R.D. 614, 617 (S.D.N.Y.1990))). Indeed, they are not responsive to the questions Plaintiff has
posed. Although the RFAs could be worded more precisely, they are fairly read to seek admissions
as to Defendant’s understanding of the meaning of the contractual provisions at issue. At the July
13 Hearing, Plaintiff specified that the purpose of those RFAs was precisely that—to determine if
the parties both understood the relevant provisions in the same way. Courts have held that, alt-
hough an RFA that seeks a pure legal conclusion may be improper, see, e.g., In re Rail Freight
Fuel Surcharge Antitrust Litig., 281 F.R.D. 1, 11 (D.D.C. 2011), “where the question of the mean-
ing of the document is at issue in the case, a request directed to another party seeking admission
or denial of a document’s meaning or intent by that party as stated in the request relates to a state-
ment [of] fact, and [is] authorized by Rule 36.” Sigmund, 236 F.R.D. at 46 (first alteration in
original) (quoting Booth Oil Site Admin. Gp. v. Safety–Kleen Corp., 194 F.R.D. 76, 80
(W.D.N.Y.2000)); see also D.R.A. Servs., 2014 WL 11498163, at *5 n.2 (“A request for admis-
sion relating to the interpretation of a contract at issue is acceptable under the federal rules. Even
if a document’s meaning or the parties’ intent concerning a contractual provision is an issue to
ultimately be ruled upon, the responding party must nonetheless give its understanding of
5
the meaning or intent.” (internal citations omitted) (citing Sigmund, 236 F.R.D. at 46, and Booth
Oil, 194 F.R.D. at 80)); Disability Rights Council v. Wash. Metro. Area Transp. Auth., 234 F.R.D.
1, 3 (D.D.C. 2006) (“[T]he intent of the parties to a contract and what they understood the contract
to mean is [ ] an issue of fact.”); Booth Oil, 194 F.R.D. at 82 (“If interrogatories may require a
party to state the nature and basis of a contention regarding the existence or meaning of a document
at issue, the court fails to see why a request for admission may not seek to limit the need for proof
regarding the text and meaning of a particular provision of a document.”). That is true “[e]ven if
the meaning of a document or the intent of the parties as to a contractual provision is the issue
ultimately to be decided.” Sigmund, 236 F.R.D. at 46 (quoting Booth Oil, 194 F.R.D. at 80); see
also In re Rail Freight, 281 F.R.D. at 10 (“Rule 36 allows litigants to request admissions as to a
broad range of facts, including ultimate facts, as well as applications of law to fact.” (quoting
Carney v. IRS, 258 F.3d 415, 419 (5th Cir. 2001))).
Plaintiff asks the Court to order that these RFAs be deemed admitted. ECF No. 30-1 at 5.
It has not shown that such a “severe sanction” is warranted here. Wiwa, 2009 WL 1457142, at *5.
Instead, on or before July 20, 2020, Defendant shall amend its answers as directed at the July 13
Hearing and in accordance with this Memorandum Opinion and Order.
2. Allegedly Bad Faith Denials
a. RFA Nos. 27, 30, 33, and 36
These RFAs concern the following provision in the agreements:
§ 3.4.2 The Contractor’s claims for the costs of services or materials provided due
to the Subcontractor’s failure to execute the Work shall require
.1 three days’ written notice prior to the Contractor’s providing ser-
vices or materials, except in an emergency; and
6
.2 written compilations to the Subcontractor of services and materials
provided by the Contractor and charges for such services and mate-
rials no later than the fifteenth day of the month following the Con-
tractor’s providing such services or materials.
ECF No. 30-13 at 6; ECF No. 30-14 at 6. The RFAs ask Defendant to “admit that compliance
with Section 3.4.2.1. of the [agreements] is required before MCN can recover the costs of services
or materials provide due to Z-Modular’s failure to complete its work” (ECF No. 30-10 at 10, 11
(RFA Nos. 27, 30)) and to “admit that compliance with Section 3.4.2.2 of the [agreements] is
required before MCN can recover the costs of services and materials provided due to Z-Modular’s
failure to complete its work” (ECF No. 30-10 at 12 (RFA Nos. 33, 36)).
Defendant denied all four of these RFAs (ECF No. 30-10 at 10, 11, 12, 13), explaining that
“[i]ssues such as waiver, estoppel, unclean hands, and others” might “impact the ultimate deter-
mination of whether strict compliance with the referenced subcontract provision is required”6
(ECF No. 35 at 6). Plaintiff contends that “MCN’s excuses do not have merit” because “discovery
cannot uncover any set of facts that would result in waiver or estoppel” and because “the doctrine
of unclean hands . . . is inapplicable under any conceivable set of circumstances.” ECF No. 30-1
at 8–9; see also ECF No. 36 at 4. That is, Plaintiff asks the Court to grant its motion because those
affirmative defenses are meritless or “frivolous” (ECF No. 30-1 at 8), which is improper at this
juncture. See, e,g,, Rackliffe v. Rocha, No. 1:07-cv-0603, 2012 WL 1158855, at *1 n.1 (E.D. Cal.
Apr. 6, 2012) (refusing to address the merits of the plaintiff’s claim when ruling on a motion to
compel).
6
To the extent that Defendant argues that these RFAs are improper because they seek legal conclusions, the argument
is rejected for the reasons discussed above in Section II.A.1. These RFAs, like those previously addressed, properly
ask for MCN’s understanding of the contractual provisions at issue. See D.R.A. Servs., 2014 WL 11498163, at *5 n.2;
Sigmund, 236 F.R.D. at 46; Booth Oil, 194 F.R.D. at 82.
7
More fundamentally, Plaintiff’s attempt to litigate the accuracy of Defendant’s responses
to these RFAs is not appropriate at this time. “[A] motion to determine the sufficiency of a response
is ‘not to be used as an attempt to litigate the accuracy of a response.’ A response can be sufficient,
even if it is not ultimately determined to have been accurate.” Wiwa, 2009 WL 1457142, at *5
(quoting Moore’s Federal Practice § 36.12[3]); see also, e.g., San Diego Unified Port Dist. v.
Nat’l Union Fire Ins. Co. of Pittsburgh, No. 15cv1401, 2017 WL 3877731, at *4 (S.D. Ca. Sept.
5, 2017) (stating that “[i]n a motion to compel, the issue is whether the response to the request . . .
is legally sufficient, not whether it is accurate.”); United States v. Operation Rescue Nat’l, 111 F.
Supp. 2d 948, 968 (S.D. Ohio 1999) (stating that a response “is insufficient if it is not specific or
the explanation for the refusal to admit or to deny lacks detail, not because the denial may be
contrary to the evidence”); Foretich v. Chung, 151 F.R.D. at 4–5 (finding that it is improper for a
court to “make a factual determination of the accuracy of a party’s denial” on a motion challenging
the sufficiency of a response to an RFA). Rather, the consequences for an inaccurate failure to
admit are found at Rule 37(c), which allows the requesting party to recover expenses incurred in
proving the truth of a matter that the responding party denied in response to an RFA. See Fed. R.
Civ. P. 37(c)(2); see also, e.g., San Diego Unified Port Dist., 2017 WL 3877731, at *4.
Here, Plaintiff has a sufficient response: a clear denial. The accuracy of that response can,
if appropriate, be litigated at a later time in connection with a motion pursuant to Rule 37(c).
Plaintiff’s motion to compel is therefore denied on this ground.
b. RFA Nos. 2 and 6
RFA Nos. 2 and 6 concern Section 10.1 of the agreements, which states, “The Contractor
[MCN] shall pay the Subcontractor [Z-Modular] in current funds for performance of the Subcon-
tract the Subcontract Sum of [$3,674,268.00 in the Ward 7 Agreement and $5,673,357.00 in the
8
Ward 8 Agreement] . . . subject to additions and deductions as provide in the Subcontract Docu-
ments.” ECF No. 30-13 at 12; ECF No. 30-14 at 12. The RFAs ask Defendant to “[a]dmit that
podium steel design and engineering services are not include in the Subcontract Sum listed in
Section 10.1 of the [agreements].” ECF No. 30-10 at 3, 4.
Defendant denied the RFAs, explaining that “Exhibit A of the [agreements] contains mul-
tiple references to work related to the podium which may have include design and engineering
components; therefore the [agreements’] Subcontract Sum may have included elements of podium
steel design and engineering services.” Id. at 3, 4. Plaintiff objects that those costs could not have
been included in the fixed Subcontract Sums because both agreements provide that the podium
streel design and engineering services were to be provided on a “time and materials” basis, which,
as noted, supra note 4, means that “the customer is billed on an ongoing basis as labor is expended
and materials are used” rather than having agreed to a particular price prior to the work being done.
Jones Boat Yard, 2006 WL 3664405, at *2. Moreover, Plaintiff states that the employees of De-
fendant who signed the agreements testified in their depositions that steel design and engineering
were to be paid on a time and materials basis. ECF No. 30-1 at 10; ECF No. 36 at 5 (citing ECF
No. 30-15 at 5–6 and ECF No. 30-16 at 6).
This dispute, like the one discussed above in Section II.A.2.a, concerns the accuracy of
Defendant’s denials rather than their sufficiency. Defendant’s denial, whether or not it turns out
to be accurate, is not improper. 7 Plaintiff’s motion is denied on this ground.
7
Again, the accuracy of that response can be tested later.
9
B. Interrogatories
1. Interrogatory 1
This interrogatory asks Defendant to “[s]et forth an itemized statement of all damages
MCN claims to have sustained in connection with its alleged claims,” and to specify, among other
things, “the [B]ates number corresponding to any invoice or other documentation showing that the
service, labor[,] or materials were provide.” ECF No. 30-17 at 3. Defendant responded “pursuant
to Rule 33(d)” of the Federal Rules of Civil Procedure, asserting that the answer to the interroga-
tory could be “derived from reviewing the documents previously produced by Defendant per an
agreement between the parties including, but not limited to,” 44 individual documents identified
by Bates number, as well as the “project file,” which spans over 25,000 Bates numbers, i.e.,
MCN00017499–MCN00043104. Id. at 4.
Rule 33(d) provides:
If the answer to an interrogatory may be determined by examining, auditing, com-
piling, abstracting, or summarizing a party’s business records . . . and if the burden
of deriving or ascertaining the answer will be substantially the same for either party,
the responding party may answer by:
[ ] specifying the records that must be reviewed, in sufficient detail to enable
the interrogating party to locate and identify them as readily as the respond-
ing party.
Fed. R. Civ. P. 33(d)(1). The rule requires that “the burden of compiling the information [must]
be substantially the same for the inquiring and the responding parties.” 8B Richard L. Marcus,
Federal Practice and Procedure § 2178 (3d ed.). Moreover, “the responding party must specify
which records contain the information sought by the interrogatory” and must not merely “direct[ ]
the interrogating party to a mass of business records or [ ] offer[ ] to make all of [its] records
available.” Id. (quoting Fed. R. Civ. P. 33, advisory committee’s note to 1980 amendment). De-
fendant has not met those requirements.
10
From the briefing on this motion to compel, it appears that ascertaining or deriving the
requested information from the business records would be significantly more burdensome to Plain-
tiff than to Defendant. Defendant has already calculated the damages it asserts were caused by
Plaintiff’s alleged failures. Its counterclaims state that, “[i]n total, MCN incurred additional costs
of $3,282,877 for the Ward 7 Project and $3,160,182 for the Ward 8 Project as a direct result of
Plaintiff’s failure to perform its Subcontracts and to provide fully fit-out modules by the agreed
upon dates in the subcontracts.” ECF No. 15 at 24. Moreover, MCN has compiled a spreadsheet
that estimates its damages. ECF No. 15 at 24; ECF No. 36-2. “[W]hen the responding party has
already culled the requested information from its records, as part of its trial preparation or for other
reasons, that may indicate that it would be substantially more burdensome for the inquiring party
to compile the information.” 8B Richard L. Marcus, Federal Practice and Procedure § 2178 (3d
ed.). More, Plaintiff points out that one of Defendant’s witnesses testified at his deposition that
“the costs of completing Z-Modular’s scope [of work] (i.e., MCN’s alleged damages) were
‘lumped together with other charges,’” making it difficult for Z-Modular to distinguish between
“charges for completing Z-Modular’s scope and unrelated charges.” ECF No. 36 at 6 (quoting
ECF No. 36-1 at 4 (excerpt from deposition transcript of Frank Lefler)). Defendant, which in-
curred those charges, is in a better position to make that distinction. See, e.g., In re Savitt/Adler
Litig., 176 F.R.D. 44, 50 (N.D.N.Y. 1997) (rejecting the plaintiffs’ burden argument under Rule
33(d) where the interrogatories were focused on allegations in the plaintiffs’ complaint and there-
fore related to facts within the possession of the plaintiffs that supported their own allegations).
11
Additionally, Defendant has attempted to satisfy its obligation by directing Plaintiff to over
25,600 Bates-numbered documents. 8 Courts have indicated that pointing the requesting party to
thousands of documents does not fulfill the requirement that the responding party specify which
records contain the information sought by the interrogatory. See, e.g., Haughton v. District of
Columbia, 161 F. Supp. 3d 100, 102–03 (D.D.C. 2014) (affirming the magistrate judge’s decision
that it was improper for a responding party to refer the interrogating party to thousands of docu-
ments without further specifying page ranges in which the information sought could be found);
Minter v. Wells Fargo Bank, N.A., 286 F.R.D. 273, 278–79 (D. Md. 2012) (“A document dump of
thousands of documents will not suffice.”); Graske v. Auto-Owners Ins. Co., 647 F. Supp. 2d 1105,
1108–09 (D. Neb. 2009) (finding that an interrogatory response that directed the requesting party
to 7,000 documents in seven files, without any further guidance, was “deficient” in part because
the responding party was “certainly more familiar with its own business records than [were] the
[requesting parties]”).
As agreed at the July 13 Hearing, on or before July 20, 2020, Plaintiff and Defendant will
meet and confer to agree on the format of and deadline for Defendant’s amended response to In-
terrogatory No.1, including whether a representative of Defendant should sit for a Rule 30(b)(6)
deposition regarding the issue of Defendant’s claimed damages.
2. Interrogatory No. 2
This interrogatory concerns Section 3.4.2 of the agreements, which, as noted above, re-
quired Defendant to provide a “written compilation” to Plaintiff of the charges Defendant incurred
as a result of Plaintiff’s failure to execute its work. ECF No. 30-13 at 6; ECF No. 30-14 at 6.
8
As Z-Modular explains, each Bates number corresponds to a document rather than a single page within a document,
so the number of pages included in those records is likely greater than 25,600. ECF No. 30-1 at 10 n.2; ECF No. 36
at 6 n.3.
12
Those compilations were to be tendered to Plaintiff “no later than the fifteenth day of the month
following [Defendant’s] providing such services or materials.” Id.
Interrogatory No. 2, in relevant part, asks Defendant to “[i]dentify, by [B]ates number,
all . . . written compilations MCN claims satisfy its obligations under Section[ ] . . . 3.4.2.2 of the
[agreements].” ECF No. 30-17 at 5. In its original response, Defendant pointed Plaintiff to two
documents identified by their Bates number (see id.), neither of which, according to Plaintiff, “can
reasonably be construed as a compilation, let alone a compilation that satisfies Section 3.4.2.2.”
ECF No. 30-1 at 12.
At the July 13 Hearing, the parties informed the Court that, after briefing on this motion to
compel was completed, Defendant amended its answers to two RFAs (not at issue here), admitting
that it had not submitted any compilations to Plaintiff that complied with the time limit imposed
in Section 3.4.2.2 of the agreements. Plaintiff therefore sought amendment of Defendant’s answer
to Interrogatory No. 2 to harmonize it with those RFA responses.
Plaintiff’s request is granted. Defendant shall amend its response to Interrogatory No. 2
on or before July 20, 2020.
C. Request for Production
At the July 13 Hearing, both parties agreed that this motion is moot to the extent that it
seeks a response to Plaintiff’s Request for Production No. 20.
III. CONCLUSION
For the foregoing reasons it is hereby
ORDERED that Plaintiff’s motion to compel (ECF No. 30) is GRANTED IN PART and
DENIED IN PART. It is further
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ORDERED that, in accordance with the discussion above, Defendant shall serve amended
answers to RFA Nos. 1, 5, 9, 11, 17, 19, 23, 24, 26, 29, 32, and 35 on or before July 20, 2020. It
is further
ORDERED that, on or before July 20, 2020, Plaintiff and Defendant shall meet and confer
regarding the format of and deadline for Defendant’s amended response to Interrogatory No. 1. It
is further
ORDERED that the parties shall submit a joint status report regarding the resolution of
their dispute as to Interrogatory No.1 on or before July 20, 2020. It is further
ORDERED that Defendant shall serve an amended answer to Interrogatory No. 2 on or
before July 20, 2020.
SO ORDERED.
Digitally signed by
G. Michael Harvey
Date: July 15, 2020 Date: 2020.07.15
15:59:13 -04'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
14