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Inc. v. Radius Bank

United States District Court, W.D. Texas, Austin Division

January 10, 2020

Q2 SOFTWARE, INC., Plaintiff
v.
RADIUS BANK, Defendant

          ORDER

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE

         On 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. No. 39.

         I. Background

         This 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.

         On 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.

         Having 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 144.

         In 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.

         Meanwhile, 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).

         After considering the parties' briefs, the record, and the arguments at the hearing, the undersigned enters the following order.

         II. Analysis

         A. Motions to Compel

         The 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 ...


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