United States District Court, E.D. North Carolina, Western Division
Boyette Brothers Produce, LLC, Plaintiff/Counterclaim-Defendant,
Arvila, LLC, et al., Defendants/Counterclaim-Plaintiffs.
T. Numbers, II United States Magistrate Judge
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.
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
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)).
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
Interrogatories 2, 3, 5, and 6
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.
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.
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.
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.
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.
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