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State v. Ysleta Del Sur Pueblo

United States District Court, W.D. Texas, El Paso Division

May 23, 2018

STATE OF TEXAS, Plaintiff,



         On this day, the Court considered Plaintiff State of Texas's “Motion to Compel Responses to Interrogatories and Requests for Production” (ECF No. 85) [hereinafter “Motion”], filed on April 30, 2018, in the above-captioned cause, Defendants Ysleta del Sur Pueblo, the Tribal Counsel, and the Tribal Governor Carlos Hisa's [hereinafter collectively referred to as “Defendants”] “Response to Plaintiff's Motion to Compel” (ECF No. 88), filed on May 7, 2018, and Plaintiff's “Reply in Support of Motion to Compel” [hereinafter “Reply”], filed on May 14, 2018, in the above-captioned cause. After due consideration, the Court concludes that Plaintiff's request should be granted.

         I. BACKGROUND

         On or about December 19, 2017, Plaintiff served Requests for Production (“RFPs”) and a set of Interrogatories on Defendants. Mot. 3. Defendants served initial responses and objections to the RFPs and Interrogatories on January 26, 2018. Id. Defendants then served supplemental responses to the Interrogatories and RFPs on March 15 and 19, 2018, respectively. Id. at 4.

         Unfortunately, most of the interrogatory and RFP responses provide only scant detail regarding Plaintiff's inquiries. Specifically, Plaintiff claims Defendants failed to provide discovery about the operations at Speaking Rock and the functionality of the electronic bingo machines therein.[1] Defendants do not contest that they did not provide this discovery, but offer multiple justifications. First, Defendants claim that either third-party vendors or the Ysleta del Sur Fraternal Organization [hereinafter the “Fraternal Organization”], which is not a party to this litigation, are in possession of most of the responsive documents and information. Further, Defendants claim that some of Plaintiff's discovery responses are unduly burdensome and overbroad. Finally, Defendants have suggested that their currently pending motion to dismiss excuses some of their discovery obligations. For the reasons discussed below, none of these justifications excuses Defendants' failure to comply with Plaintiff's discovery requests relating to Speaking Rock and the electronic bingo machines.


         “[A] district court has broad discretion in all discovery matters . . . .” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 545 (5th Cir. 2005). Federal Rule of Civil Procedure 37 “empowers the court to compel the production of documents and complete responses to interrogatories upon motion by the party seeking discovery.” Exp. Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006). The party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).

         Defendants have taken the position throughout this litigation that the various offerings at Speaking Rock Casino are entirely consistent with Texas law and, thus, that the operation of Speaking Rock is federally authorized pursuant to the Restoration Act. See, e.g., Rule 26(f) Joint Case Management Report 2, Oct. 30, 2017, ECF No. 34. Specifically, Defendants have argued that their electronic bingo machines do not violate Texas law and have represented that the “mechanics of the card minder . . . can be demonstrated by the Pueblo Defendants” or “determined by Plaintiff [if it] engage[s] in even rudimentary discovery.” Defs.' Resp. in Opposition to Pl.'s Appl. Prelim. Inj., Sept. 12, 2017, ECF No. 17. The Court denied a preliminary injunction partially in reliance on Defendants' claim that Plaintiff would be able to develop more fully its theory of illegality through discovery. Using interrogatories and requests for production, Plaintiff has sought discovery consistent with Defendants' initial invitation. However, for reasons that remain unclear, Defendants appear to be trying vigorously to thwart Plaintiff's efforts. This behavior is not consistent with Defendants' position that they are engaged in lawful activity.

         Instead, based on the evidence provided in Plaintiff's Motion to Compel and Defendants' lack of a meaningful rejoinder, it appears that Defendants' are engaged in dilatory tactics. Defendants' refusal to comply with Plaintiff's discovery requests wastes the Court's resources, is unfair to Plaintiff, and is contrary to Federal Rule of Civil Procedure 1, which encourages the parties to “secure the just, speedy, and inexpensive determination of every action and proceeding.” While Defendants may have succeeded in extending this litigation further, they jeopardize their credibility with the Court. With that conclusion in mind, the Court turns to Defendants' excuses for failing to provide Plaintiff with proper discovery.

         A. Third-Party Vendors

         Regarding third-party vendors, Defendants assert that they “contracted with various vendors to have the bingo cardminder[s] at Speaking Rock designed to fully comply with [the] Restoration Act” and that “the vendors that designed the . . . bingo cardminders have retained that information as proprietary.” Resp. 4. However, Defendants have provided no indication of what companies or entities they contracted with, which would allow Plaintiff to seek out this information from the companies itself. Further, Defendants have no authority to discourage or prohibit Plaintiff from seeking information from a third-party by opining that the information is “proprietary.” No. evidence is offered that the third parties have made such claims. Finally, if Defendants carefully worked with these companies to develop the machines in compliance with the Restoration Act, as they claim, there would presumably be extensive correspondence regarding guidance and oversight of the manufacturing, delivery, and maintenance of the machines. Defendants have apparently not provided any such documents or explained their whereabouts. Accordingly, the Court concludes that Defendants must disclose all relevant companies who might retain information about the machines at issue at Speaking Rock. Also, pursuant to Plaintiff's inquiries, Defendants must disclose all documents they possess (either actually or constructively through a related entity) related to the hardware, mechanics, or software used in these machines.

         B. The Ysleta del Sur Fraternal Organization

         Defendants object to many of Plaintiff's discovery requests by asserting that the “the Fraternal Organization is a separate entity that needs to be served individually in order to obtain those documents which are solely in the Fraternal Organization's possession, custody, or control.”[2] Resp. 5. This objection is without merit. Federal Rule of Civil Procedure 34 allows parties in discovery to request documents within the responding party's “possession, custody, or control.” “Rule 34 is broadly construed and documents within a party's control are subject to discovery, even if owned by a nonparty.” Mir v. L-3 Commc'ns Integrated Sys., L.P., 319 F.R.D. 220, 230 (N.D. Tex. 2016). “Control” of documents includes both actual possession and the “legal right or practical ability to obtain the documents from a nonparty in the action.” Edwards v. City of Bossier City, No. CV 15-1822, 2016 WL 3951216, at *3 (W.D. La. July 20, 2016); cf. Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 305 (M.D. N.C. 1998) (“[A] litigating parent corporation has control over documents in the physical possession of its subsidiary corporation where the subsidiary is wholly owned or controlled by the parent.”) (alteration in original) (quoting American Angus Ass'n v. Sysco Corp., 158 F.R.D. 372, 375 (W.D. N.C. 1994)).

         Here, it is apparent that Defendants have both the legal right and practical ability to obtain the documents Plaintiff seeks. First, the Fraternal Organization's federal charter of incorporation states that the corporation is “wholly controlled by the Ysleta del Sur Pueblo.” Mot Ex. 9 at YDSP-000002. This may be enough by itself to give Defendants the legal right to access the corporation's documents. See Uniden, 181 F.R.D. at 305. Regardless, Defendants also admit that Carlos Hisa, a defendant in this litigation and the Tribal Governor of the Ysleta del Sur Pueblo, is the President of the Fraternal Organization. Mot. Ex. 4 at 13. Defendants have not explained why Hisa, as President, does not have access to the Speaking Rock operational documents. Moreover, the charter of incorporation provides that the Tribe (a party in this litigation) and its members are collectively the sole stakeholder of the corporation. Id. The Ysleta del Sur Tribal Council (also a party to this litigation) serves as the “representative of the Stakeholder, and all rights of the Stakeholder shall be exercised by the Ysleta del Sur Tribal Council.” Id. The Fraternal Organization is required to make its “financial and operating records” available to inspection ...

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