United States District Court, W.D. Texas, Austin Division
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
January 6, 2020, the District Court referred Plaintiff's
Motion to Compel Defendant's Production (Dkt. No. 28),
Joint Motion Requesting Entry of Agreed Order (Dkt. No. 32),
Plaintiff's Renewed Motion to Compel Defendant's
Production and Motion for Sanctions (Dkt. No. 33),
Plaintiff's Motion for Expedited Telephone Hearing on
Renewed Motion to Compel Defendant's Production and
Motion for Sanctions (Dkt. No. 34), and all related filings,
to the undersigned for disposition pursuant to 28 U.S.C.
§ 636(b)(1)(A), Federal Rule of Civil Procedure 72, and
Rule 1(c) of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas
(“Local Rules”). The Court held a telephone
hearing on the motions on January 9, 2020. See Dkt.
discovery dispute concerns Plaintiff Q2 Software, Inc.'s
requests for production (“RFPs”), served on
defendant Radius Bank on March 6, 2019 and November 1, 2019.
On November 18, 2019, Q2 moved to compel production in
response to the RFPs. Dkt. No. 28. On December 6, 2019, the
parties jointly submitted an agreed order, signed by counsel
for both parties, in which the parties stated that they had
“agreed to resolve their disputes related to the
Motion” to Compel. Dkt. No. 32. The agreement provided
in part that:
Radius will produce all documents sought by the Motion that
are within its possession, custody, or control and in
accordance with the parties' agreement regarding
custodians and search terms, on a rolling basis, beginning as
soon as practicable after December 6, 2019. Production of all
such documents shall be complete by December 20, 2019.
Dkt. No. 32-1 at ¶ 2. The parties agreed to extend the
discovery deadline, which had been October 4, 2019, until
December 23, 2019. Id. at ¶ 3. Radius also
agreed to pay Q2 $5, 000 for attorneys' fees incurred in
making the motion to compel within 20 days of entry of the
order. Id. at ¶ 1.
December 12 and 13, 2019, the parties met and conferred
regarding Radius' responses and objections to the RFPs.
See Dkt. No. 33-2 at ¶ 9. The parties finalized
search term combinations that would be applied to the search
of the documents Radius had gathered and isolated, and Q2
agreed to narrow its second set of RFPs, seeking documents
responsive only to request Nos. 25, 32, 33, 34, 35, 40, 41,
and 43. Id.
received no documents and hearing nothing further from
Radius, counsel for Q2 emailed Radius requesting a status
update on the production on December 16, 2019, and December
18, 2019. See Dkt. No. 33-1 at 139. Counsel for
Radius did not respond to either request. In response to a
third email Q2 sent December 20, 2019 - the date by which
Radius had agreed to complete its production - counsel for
Radius responded by stating: “I expect to begin a
rolling production of the materials collected from
Radius's archives next week and will be available Monday
to visit further about Radius's objections to Q2's
most recent request for production.” Id. at
light of Radius's failure to comply with its agreement or
communicate appropriately, on December 23, 2019, Q2 filed its
Renewed Motion to Compel and Motion for Sanctions, asking the
Court to compel Radius to produce the documents sought in its
November 18, 2019 motion to compel and seeking sanctions for
Radius' conduct. Dkt. No. 33. Q2 also moved for an
expedited telephone hearing on the matter. Dkt. No. 34.
trial of this case is scheduled for February 3, 2020, with a
final pretrial conference on January 24, 2020, and pretrial
information including exhibit and witness lists due January
10, 2020. See Dkt. Nos. 9, 27; Local Rule CV-16(e).
considering the parties' briefs, the record, and the
arguments at the hearing, the undersigned enters the
Motions to Compel
scope of discovery is broad. Crosby v. La. Health Serv.
and Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011).
Federal Rule of Civil Procedure 26 provides that, unless
otherwise limited by court order, parties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Fed.R.Civ.P. 26(b)(1). “A discovery request is relevant
when the request seeks admissible evidence or ‘is
reasonably calculated to lead to the discovery of admissible
evidence.'” Crosby, 647 F.3d at 262
(quoting Wi ...