United States District Court, W.D. Texas, El Paso Division
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL
R. MARTINEZ, UNITED STATES DISTRICT JUDGE.
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.
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.
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. 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.
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).
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
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
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
Ysleta del Sur Fraternal Organization
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.” 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)).
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 ...