United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' Motion to Compel Document
Production, Motion to Overrule Objections, and Motion to
Compel Document Custodian Deposition (Dkt. #40). After
reviewing the relevant pleadings and motion, the Court finds
the motion should be granted in part and denied in part.
RealPage, Inc. and RealPage Vendor Compliance LLC
(collectively, “Plaintiffs” or
“RealPage”) seek a preliminary injunction against
Defendants Enterprise Risk Control, LLC
(“Enterprise”) and Lonnie Derden
“Defendants”) from using or benefiting from any
of Plaintiffs' trade secrets or other confidential or
proprietary information (Dkt. #10 at p. 17-18). At the center
of the controversy is the allegation that Derden and his
employees took trade secret and confidential information from
Plaintiffs and used it to create a competing product sold by
November 30, 2016, the Court entered an Agreed Order
Continuing Preliminary Injunction Hearing and Setting
Discovery and Briefing Schedule (Dkt. #33) and an agreed
Protective Order and Source Code Protocol (Dkt. #34). The
agreed discovery schedule set the week of December 19, 2016
as the time to make Source Code available for inspection in
accordance with the agreed protective order, and December 19,
2016 as the deadline for parties to serve responses to
requests for production of documents (“RFPs”).
December 2, 2016, Plaintiffs served their first set of
requests for production to Enterprise and Derden (Dkt. #40,
Exhibits A, B). On December 19, 2016, Defendants served their
responses to Plaintiffs' first set of RFPs (Dkt. #40,
Exhibits C, D). Between December 19, 2016, and this motion,
the parties discussed the allegedly inadequate responses
(Dkt. #40, Exhibits E, F).
February 17, 2017, Plaintiffs filed this motion (Dkt. #40).
On February 27, 2017, Defendants filed their response,
indicating that certain additional disclosures would be made
later that day (Dkt. #44). On the same day, Plaintiffs filed
a reply (Dkt. #47). On February 28, 2017, Plaintiffs filed a
supplemental reply, confirming that Defendants produced 7,
343 emails and their attachments the night before (Dkt. #48).
On March 1, 2017, Defendants filed a sur-reply (Dkt. #51).
Federal Rule of Civil Procedure 26(b)(1), parties “may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense . . . .”
Fed.R.Civ.P. 26(b)(1). Relevance, for the purposes of Rule
26(b)(1), is when the request is reasonably calculated to
lead to the discovery of admissible evidence. Id.;
Crosby v. La. Health & Indem. Co., 647 F.3d 258, 262
(5th Cir. 2011). It is well-established that “control
of discovery is committed to the sound discretion of the
trial court.” Freeman v. United States, 556
F.3d 326, 341 (5th Cir. 2009) (quoting Williamson v. U.S.
Dep't of Agric., 815 F.2d 368, 382 (5th Cir. 1987)).
of the Federal Rules of Civil Procedure allows a discovering
party, on notice to other parties and all affected persons,
to “move for an order compelling disclosure or
discovery.” Fed.R.Civ.P. 37(a)(1). The moving party
bears the burden of showing that the materials and
information sought are relevant to the action or will lead to
the discovery of admissible evidence. Export Worldwide,
Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006).
Once the moving party establishes that the materials
requested are within the scope of permissible discovery, the
burden shifts to the party resisting discovery to show why
the discovery is irrelevant, overly broad, unduly burdensome
or oppressive, and thus should not be permitted. Id.
Rule of Civil Procedure 34 governs requests for production of
documents (“RFPs”), electronically stored
information, and tangible things. Rule 34 requires responses
to “either state that inspection and related activities
will be permitted as requested or state with specificity the
grounds for objecting to the request, including the
reasons.” Fed.R.Civ.P. 34(b)(2)(B). “An objection
[to the entire request] must state whether any responsive
materials are being withheld on the basis of that
objection.” Id. 34(b)(2)(C). On the other
hand, “[a]n objection to part of a request must specify
the part and permit inspection of the rest.”
responding to each request with specificity, the responding
attorney must sign their request, response, or objection
certifying that the response is complete and correct to the
best of the attorney's knowledge and that any objection
is consistent with the rules and warranted by existing law or
a nonfrivolous argument for changing the law. Fed.R.Civ.P.
26(g). This rule “simply requires that the attorney
make a reasonable inquiry into the factual basis of his
response, request, or objection.” Fed.R.Civ.P. 26(g)
advisory committee note (1983).
federal rules follow a proportionality standard for
discovery. Fed.R.Civ.P. 26(b)(1). Under this requirement, the
burden falls on both parties and the court to consider the
proportionality of all discovery in resolving discovery
disputes. Fed.R.Civ.P. 26(b)(1), advisory committee note
(2015). This rule relies on the fact that each party has a
unique understanding of the proportionality to bear on the
particular issue. Id. For example, a party
requesting discovery may have little information about the
burden or expense of responding. Id. “The
party claiming undue burden or expense ordinarily has far
better information-perhaps the only information-with respect
to that part of the determination.” Id.
ask the Court to overrule Defendants' objections and to
order production of certain documents. The Court will take
each request in turn, beginning with objections to specific
RFPs and then addressing compulsion of documents.
argue Enterprise's objections to RFPs 1-3, 5-7, 9, 11-13,
15, 16, 18, and 19 and Derden's objections to RFPs 2-5
should be overruled because they are boilerplate and not
stated with specificity. Defendants argue that Plaintiffs
have not objected to the merits of the objections, but only
the specificity. Defendants further argue that their
objections are specific because they quoted specific portions
of the questions that were vague or overbroad. The Court
agrees that Plaintiffs only make specificity arguments in
their motion regarding Defendants' responses to
discovery. However, Plaintiffs do address the merits in their
request to compel documents. Therefore, the Court will
address specificity here and the merits later.
“Subject to” language
As an initial matter, the Court finds Defendants waived each
of their objections, except to RFP 11, by including
“subject to the foregoing” in the response. The
practice of including “subject to” or
“without waiving” statements after objections is
an age-old habit comparable to belts and suspenders. This
practice is “manifestly confusing (at best) and
misleading (at worse), and has no basis at all in the Federal
Rules of Civil Procedure.” Keycorp v. Holland,
No. 3:16-cv-1948-D, 2016 WL 6277813, at *11 (N.D. Tex. Oct.
26, 2016) (quoting Carr v. State Farm Mut. Auto.
Ins., 312 F.R.D. 459, 470 (N.D. Tex. 2015)). Such an
objection and answer “leaves the requesting [p]arty
uncertain as to whether the question has actually been fully
answered, ” Consumer Elecs. Ass'n v. Compras &
Buys Magazine, Inc., No. 08-21085-CIV, 2008 WL 4327253,
at *3 (S.D. Fla. Sept. 18, 2008), and “wondering as to
the scope of the documents or information that will be
provided as responsive.” Heller v. City of
Dall., 303 F.R.D. 466, 487 (N.D. Tex. 2014).
does not allow this kind of hedging. Rule 34 allows a party
either to “state that inspection and related activities
will be permitted as required” or to “state with
specificity the grounds for objecting to the request.”
Fed.R.Civ.P. 34(b)(2)(B). If a party chooses to object to
part of a request, the party “must specify the part and
permit inspection of the rest.” Id.
34(b)(2)(C). A response that states “subject to the
foregoing” is not specific enough as to either (1) the
completeness of the answer or (2) the availability of
documents for inspection. The Court finds that
Defendants' inclusion of “subject to the
foregoing” is not supported by the federal rules and
goes against the purposes of a just, speedy, and inexpensive
resolution. See Carr, 312 F.R.D. at 470.
answering questions “subject to” Defendants
failed to specify the scope of their answer in relation to
the request. This makes it impossible for Plaintiffs or the
Court to assess the sufficiency of the response. Therefore,
Defendants have waived each objection, except to RFP 11, by
including “subject to” language in their
responses. See Carr, 312 F.R.D. At 470. Defendants
shall fully supplement their responses to Plaintiffs'
requests, except RFP 11, consistent with the proper manner of
responding or answering as laid out above.
Defendants waived several objections by making boilerplate
objections. It is well-established that parties cannot make
general or boilerplate objections to discovery requests.
Heller, 303 F.R.D. at 483 (N.D. Tex. 2014). Rule 34
requires that a response to an RFP “must either state
that inspection and related activities will be permitted as
requested or state an objection to the request, including the
reasons.” Fed.R.Civ.P. 34(b)(2)(B). The party resisting
discovery “must show specifically . . . how each
[request] is not relevant or how each question is overly
broad, burdensome or oppressive.” McLeod,
Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d
1482, 1485 (5th Cir. 1990) (quoting Josephs v. Harris
Corp., 677 F.2d 985, 991-92 (3d Cir. 1982)). A party may
not “refuse discovery simply by making a boilerplate
objection that it is not proportional.” Rule 26(b)(1),
advisory committee note (2015). Because ...