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Boyette Brothers Produce, LLC v. Arvila LLC

United States District Court, E.D. North Carolina, Western Division

June 14, 2017

Boyette Brothers Produce, LLC, Plaintiff/Counterclaim-Defendant,
Arvila, LLC, et al., Defendants/Counterclaim-Plaintiffs.


          Robert T. Numbers, II United States Magistrate Judge

         This motion is the latest in a series of discovery motions in a case where a deal to sell sweet potatoes has gone sour. Boyette Brothers Produce supplied the produce, and Arvila, LLC and TMF Florida, LLC (collectively “Arvila”) either purchased the produce to sell it in Europe or facilitated the sale by connecting Boyette with these European customers. In the latest motion, Boyette claims that Arvila failed to adequately respond to its interrogatories and requests for production of documents. Arvila disagrees, arguing that Boyette is being unreasonable. After reviewing the parties' arguments, the court finds that Arvila must supplement some of its responses, while other issues raised by Boyette are moot. And in light of the court's decision to grant Boyette's motion in part and the fact that Arvila's provided much of the discovery sought after the filing of the motion to compel, Arvila must explain why it should not pay the fees and costs Boyette incurred in connection with this motion.

         I. Background

         This motion deals only with Boyette's claims that Arvila did not fully respond to its written discovery requests. Boyette contends that Arvila gave incomplete answers for Interrogatories 2, 3, 5, 6, and 27 and that it did not produce documents for Request for Production 1, 2, and 13-21. The parties unsuccessfully attempted to resolve this issue without the court's intervention, so Boyette filed this Motion to Compel on April 10, 2017. Arvila provided a response, including some Amended Responses to Boyette's discovery requests, two weeks later. Thus the motion is now ripe.

         II. Discussion

         The Federal Rules provide that if “a party fails to answer an interrogatory” or “fails to produce documents[, ]” then the requesting party “may move for an order compelling an answer[.]” Fed.R.Civ.P. 37(a)(3)(B)(iii)-(iv). Boyette alleges that Arvila failed to properly respond to both types of discovery. Arvila, as the party resisting discovery, bears the burden of showing why the motion to compel should not be granted. See Mainstreet Collection, Inc. v. Kirkland's, Inc., 270 F.R.D. 238, 241 (E.D. N.C. 2010) (citing Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980) & Rogers v. Tri-State Materials Corp., 51 F.R.D. 234, 247 (N.D. W.Va. 1970)).

         The undersigned will begin by addressing two sets of interrogatories that Boyette claims Arvila did not fully respond to. Then it will address three sets of document requests that Arvila allegedly did not produce. Finally, it will address Boyette's motion for attorneys' fees and costs.

         A. Interrogatories 2, 3, 5, and 6

         Interrogatories 2, 3, 5, and 6 focus on information related to two distinct topics. First, Interrogatories 2 and 3 request that Arvila provide all documents supporting its position that it has complied with its alleged duties to provide an accounting to Boyette. Next, Interrogatories 5 and 6 request that Arvila identify every payment that it either made to Boyette or received from others for the sweet potatoes at issue here.

         Despite the distinct areas of inquiry, Arvila provided the same response for all four interrogatories. It initially responded that the relevant documents were “markedthrough in the Documents attached hereto as Group Exhibit A.” See Defts.' Disc. Resps., Ex. A at 3, D.E. 50-1. Arvila later provided an Amended Response that removed the blank citations and left only the general citation to Exhibit A. See Defts.' Resp. Mot. to Compel at 2, D.E. 55.

         Boyette argues that although Rule 33(d) authorized Arvila to respond to the interrogatories by referring to various documents, the rule requires Arvila to “provide sufficient identification of the documents so that Boyette can locate and identify the responsive documents.” D.E. 50 at 4. Arvila responds that it did not provide citations to specific documents for Interrogatories 2 and 3 because “the responsive information was so scattered throughout the hundreds of documents[.]” Id. at 8-9. For Interrogatories 5 and 6, Arvila amended its response to include a chart summarizing the requested information. See Id. at 3.

         Under the Federal Rules, a party must answer each interrogatory “separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). But the rules make an exception when a party can determine the answer by “examining, auditing, compiling, abstracting, or summarizing a party's business records” and the burden of making this determination “will be substantially the same for either party[.]” Fed.R.Civ.P. 33(d). In this situation, a responding party can 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 responding party could[.]” Id.

         Thus this rule prohibits the responding party from “[directing the opposing party to an undifferentiated mass of records[.]” Am. Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 109 F.R.D. 263, 266 (E.D. N.C. 1985); see also Stillwagon v. Innsbrook Golf & Marina, LLC, No. 2:13-CV-00018-D, 2014 WL 1652562, at *3 (E.D. N.C. Apr. 23, 2014) (unpublished) (“Document dumps or vag nts do not suffice.”). The Advisory Committee Note to the 1980 amendment calls this action “an abuse of the option.” 85 F.R.D. 521, 531. Instead, the note tells parties that they “should offer [the documents] in a manner that permits the same direct and economical access” that it has, such as “in the form of compilations, abstracts or summaries[.]” Id. Thus a party “has the duty to specify, by category and location, the records[.]” Id.

         Neither Arvila's response to Interrogatories 2 and 3 nor its response to Boyette's motion provide any indication that it has complied with Rule 33(d)'s requirement that it specify the documents containing responsive information in sufficient detail to allow Boyette to locate and identify them. Arvila does not provide the court with a copy of Group Exhibit A or describe the documents to the court so that it can attempt to determine whether the response is appropriate. Instead, Arvila has explained that Group Exhibit A contains hundreds of documents and the relevant information is “scattered throughout” its production. This approach is an example of a party “[directing the ...

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