VELOCITY INTERNATIONAL, INC. v. CELERITY HEALTHCARE SOLUTIONS, INC., No. 2:2009cv00102 - Document 53 (W.D. Pa. 2010)
Court Description: MEMORANDUM OPINION granting in part and denying in part 48 MOTION to Compel Discovery filed by CELERITY HEALTHCARE SOLUTIONS, INC. Velocity shall provide responses to Interrogatories and Requests for Production as set forth in the opinion. Celerity's motion for sanctions is denied without prejudice. Signed by Judge William L. Standish on 6/1/10. (cs)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA VELOCITY INTERNATIONAL, INC., d/b/a VELOCITY BROADCASTING, Plaintiff, vs. CELERITY HEALTHCARE SOLUTIONS, INC. f/k/a CELERITY HEALTHCARE SOLUTIONS LLC Civil Action No. 09-102 Defendant and Third-Party Plaintiff, vs. PHILIP ELIAS, Third Party Defendant. MEMORANDUM OPINION Defendant Celerity Healthcare Solutions, served its First Set of Interrogatories Inc. ("Celerity"), ("Interrogatories·) and Second Set of Requests for Production of Documents ("Requests for Production") ("Velocity"), filed a on Plaintiff on January 19, motion to compel Velocity 2010. International, On April 30, discovery (Doc. No. 2010, 48, Inc. Celerity "Motion"), contending that Velocity had again failed 1 to fully respond to 1 The Second Set of Requests for Production of Documents was the subject of a similar motion to compel filed on March 15, 2010. On April 6, 2010, based on assurances by Velocity, the Court ordered that Defendant and/or Third-Party Defendant Philip Elias should comply with that document request on or before April 14, 2010. (See Doc. No. 47.) Celerity's discovery requests. In particular, Celerity objects to Velocity's categorical refusal to produce communications between itself and third parties concerning Celerity and its activities within an exclusive market, the crux of its complaint against Velocity. Other responses are "evasive and incomplete," containing nothing more than "boilerplate general objections that make it impossible to determine whether Velocity has fully and completely responded. II (Motion at 2.) Despite notice of these deficiencies given on March 23, 2010, Velocity failed to acknowledge Celerity's concerns and its behavior has seriously jeopardized the parties' ability to complete discovery on schedule, Celerity 2010. therefore seeks an Order that is, of by May 31, Court directing Velocity to respond fully and completely to Defendant's discovery requests; to pay the costs Celerity incurred when it was forced to issue third-party subpoenas to obtain documents Velocity failed to produce; and to find that through its obdurate refusals, Velocity has waived any objections to Celerity's discovery requests. (Id. at 2 3.) In its opposition to Defendant's motion to compel 49, "Response ll ), (Doc. No. Velocity argues that the motion should be denied for three reasons. First, the discovery which Celerity seeks "is grossly overbroad," and Defendant has failed to demonstrate that the communications with third parties that it seeks through the requests for production are relevant to any claim or defense in 2 this action. Second, contrary to Celerity's statement that Velocity has failed to produce relevant third party communications, Defendant has, in fact, produced documents conceivable bearing" on the issues in this case. "that have some Third, Celerity's motion disingenuously criticizes Velocity for the same type of general objections it has used itself and, under the Federal Rules of Civil Procedure, Velocity's are objections not 6 and 19, and 21, (Response finding Velocity explicitly objects to Request for Production No. 18, waived. for 1-2.) 16, been grounds at Interrogatory Nos. have legitimate and contends that it properly asserted its objections to Request for Production Nos. 1 6, 8-19, 21-37, 40-64, 67-69, 72, and 74-77 Interrogatory Nos. 1, 5-10, 13-14, 16, and 18-22. Velocity further argues that the as well as to (Id. at 6-7.) Court should not accept Celerity's contention that Plaintiff's responses to the Requests for Production and Interrogatories have been "evasive;" in fact, Velocity has repeatedly stated it would produce non-privileged documents or substantive (Response at 7.) party has forthcoming. responses to Celerity's inquiries. As of the date of this Opinion, however, neither advised the Court that such responses have been Therefore, we proceed on the assumption that Velocity has not produced any information which would change the status of production as presented in the Motion, the Response, and a Reply Brief filed by Celerity on May 20, 2010, at Doc. No. 52. 3 I. ANALYSIS Under the liberal system of discovery established by the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. II Fed. R. Civ. P. 26(b) (1); v. Macyls, 193 F.3d 766, 777 (3d Cir. 1999) Pacitti (lilt is well recognized liThe that the federal rules allow broad and liberal discovery.") information sought need not be admissible at the information sought appears reasonably discovery of admissible evidence." calculated trial if the to lead to Fed. R. Civ. P. 26, id. The Federal Rules allow a party to discover documents which are non privileged and relevant to a claim or defense as long as the request describes IIwith reasonable particularity each item or category of items to be inspected. If 1I Fed. R. Civ. P. 34(b) (1) (A). the opposing party resists production, it must explain the reasons why the information requested is not relevant or otherwise not subj ect to discovery. Adhiparasakthi Charitable, Educ., Cultural Socly of N. Am. v. Twp. of W. Pikeland, CA No. 2010 U.S. Dist. LEXIS 3450, *12 (E.D. Pa. Jan. 14, 2010) IIAdhiparasakthi. lI & 09-1626, (hereafter ) In this case, the Courtls consideration of Defendant's motion and Velocity's objections is made more difficult by the fact that 4 Velocity objects to numerous Interrogatories and Requests Production by piling one reason on top of another. obj ection often contains a litany of reasons - for That is, the the request is "overly broad and unduly burdensome" AND "protected by attorney client-privilege or work product doctrine" AND "seeks information .or reasonably calculated to lead to that is neither relevant. the discovery containing of or admissible reflecting evidence" AND confidential, "seeks information proprietary and/or commercially sensitive business information or trade secrets." To address each of the Interrogatories and Requests for Production sequentially would be highly duplicative, so we have consolidated our review by the type of objection raised. A. General and Blanket Objections Courts have generally looked disapprovingly on responses stating that an inquiry is "overly broad," "vague," "ambiguous, II "unduly burdensome, "oppressive" or "irrelevant" unless the party has explained its reasoning for that description. Harris Corp., 33(b) (4) (the II 677 F.2d 985, grounds for 992 Josephs v. (3d Cir, 1982); Fed. R. Civ. P. objection must be stated "with specificity. ") In Adhiparasakthi, as in this case, the plaintiff began its responses to the interrogatories and requests for production with a series of general statements that it objected to the extent that the requests sought information which was privileged, confidential, 5 or irrelevant. stated, for burdensome In response to specific inquiries, Adhiparasakthi instance, and not IIObjection, calculated relevance, to lead to overbroad, the over discovery of admissible evidence," but failed to provide any explanation for The court therefore had no reason to believe such obj ections . there were grounds to sustain those obj ections, which fell II far short of the standard required to object to an interrogatory, and should not be upheld. 3450 at *13-*14. Adhiaparasakthi, 11 2010 U. S. Dist. LEXIS The court further analyzed some of the questions to which these blanket objections had been made and could find no facially apparent reason to uphold them on the grounds that the question was irrelevant, overbroad or overly burdensome when the question went directly to the plaintiff's prima facie case. *14-*15. Id. at Consequently, the court overruled all of the plaintiff's blanket objections. We will do likewise. While we do not disagree that some of the requests for production could be more specific, we decline to speculate on the limitations which of the view or would appropriate point objection. Therefore, Plaintiff's objections on the grounds that for basis Production is of from Defendant's an Interrogatory or Request actual be Plaintiff's lIoverly broad, II "unduly burdensome, II IIvague," or lIambiguous," are overruled because Plaintiff has failed to provide the necessary support for such 6 statements. 2 We caution Defendant, however, that should Plaintiff's revised responses provide such support, we will not be adverse to entertaining a motion requiring increased specificity in the Interrogatories or Requests for Production. Since none of blanket obj ections, Plaintiff's we must objections are consider the based solely on other, more specific objections to Defendant's inquiries. B. Privilege Objections Velocity has stated in response to some interrogatories and requests for production that Defendant seeks information or documents protected product doctrine. by the attorney-client privilege or work In some instances, that objection is followed by the statement that "[n] otwithstanding and without waiver of the foregoing obj ection, Velocity will produce non-privileged documents responsive to this request." "The attorney-client privilege represents a policy judgment that in some circumstances, encouraging a client to fully disclose information to legal counsel is more important than providing the decision-maker with all relevant facts. No. 07 903, 2008). 2008 U.S. Dist. II Winner v. Etkin LEXIS 46866, *9 (W.D. Pa. & Co., CA June 17, "Nevertheless, because the privilege obstructs the search for the truth and because its benefits are, at best, indirect and 2 This applies to Request for Production Nos. 1, 2, 4-5, 8 10, 13-19, 21, 23 25, 28-36, 40 45, 49, 50, 52-64, 67-69, 72, and 75-76, and Interrogatory Nos. 8, 9, 16, and 18-22. 7 speculative, possible it must be strictly confined within the narrowest limits consistent with the logic of its principle." Winner, id., quoting In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979) (internal citations and quotations omitted). In parallel fashion, mental processes of the work product doctrine "shelters the the attorney, providing a privileged area within which he can analyze and prepare his client's case." Cendant Corp. Sec. Litig., 343 F.3d 658, quoting United States v. Nobles, 422 U.S. 661 225, (3d Cir. 238 In re 2003), (1975). The doctrine applies to "documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative." Fed. R. Civ. P. burden of 26(b)(3). "The party demonstrating resisting the discovery. applicability . bears of. .the the attorney-client privilege or the work-product privilege, as a bar to discovery." McCrink v. Peoples Benefit Life Ins. Co., CA No. 04-1068, 2004 U.S. Dist. LEXIS 23990, *3 (E.D. Pa. Nov. 29, 2004) The Federal Rules require a party who (citation omitted.) withholds otherwise discoverable information on the grounds of privilege to "describe the nature of the documents, communications, or tangible things not produced or disclosed . . . in a manner that. parties to assess the claim." will enable other Fed. R. Civ. P. 26 (b) (5) (A) (ii) . " [F] ailure to assert a privilege properly may amount to a waiver of 8 that privilege." No. 07-4756, Rhoads Indus. v. Bldg. Materials Corp. of Am., CA 2008 U.S. Dist. LEXIS 93333, quoting Mass. Sch. of Law at Andover, *14 (E.D. Pa. 2008), Inc. v. Am. Bar Ass 1 n, 914 F.Supp. 1172, 1178 (E.D. Pa. 1996). In reviewing Velocity's responses to the discovery requests where it has invoked the attorney-client privilege or work product doctrine, we are concerned about the liberality with which it has claimed these protections. Nos. taken For instance, Requests for Production 33 through 36 ask for ftpersonal notes related to Celerity" by four present." individuals in meetings held between ft2006 to First, there is no evidence any of these individuals is an attorney, and second, in 2006, according to the Complaint, the parties had not yet entered into the Reseller Agreement, much less litigation. It is therefore difficult to understand how either privilege applies to the entire time period covered by the Requests. Similarly, Request No. 47 asks for ftany record related to Velocity sales and market materials, including but not limited to any printed materials or DVD' s. II Sales and marketing materials, by definition, are designed for general distribution to the public, even if an attorney had some hand in their preparation. In such cases, the party asserting the privilege ftmust demonstrate that the communication was made for the express purpose of securing legal and not business advice." In re Avandia Mktg., MDL No. 1871, 2009 U.S. Dist. LEXIS 113562, *6 (E.D. Pa. Dec. 7, 2009) 9 (work-product doctrine did not apply to materials produced presentations in the ordinary course of business.) therefore, for media We question, Velocity's sincerity in invoking these privileges in response to requests where they appear to have, at best, only limited applicability. Moreover, when a party has asserted such privileges, its work is not complete; Rule 26(b) (5) requires preparation of a privilege log which describes the documents or things being withheld. The purpose of the privilege log is to allow opposing counsel and, if necessary, the court to determine the basis of the claim. Without such a log, that part of the review process cannot begin. Pritchard v. Dow Agro Sciences, CA No. 07-1621, 2009 U.S. Dist. LEXIS 105583, *49-*50 (W.D. Pa. Nov. 121 2009). Withholding materials without producing such a log may subject the party to sanctions under Rule 37 (b) (2), and protection. 1801, may be waiver Wachtel v. Health Net, Inc. 2006 U.S. citing considered Advisory Dist. LEXIS 88563 1 Committee Notes *84 to 1 of the privilege or CA Nos. 01-4183 and 03 (D. 1993 N.J. Dec. Amendments 6, of 2006), Rule 26 (b) (5) . According to the Motion, Velocity provided its responses to the Interrogatories and Requests for Production on March 1, 2010. To the best of the Court's knowledge, as of May 28, 2010, almost three months later, Plaintiff has not provided a log for those documents which it declined to produce on the basis of privilege. 10 The combination of perhaps overly zealous use of the attorney client or work doctrine protections plus the failure to provide a privilege log leads the Court to overrule Velocity's objections to the Interrogatories and Requests for Production. Plaintiff shall serve Celerity with the relevant documents and/or a privilege log for Request for Production Nos. 1-3, 8, 10 13, 15-19, 21-27, 32-36, 42-49, 51, 53, 55, 57, 58, 72, and 74-77 and Interrogatory Nos. 1, 6, 7, 13, 14, and 20 within fourteen (14) days of the date of this Failure to do so shall result in a waiver of these Memorandum. privileges. C. Confidentiality or Commercially Sensitive Information As noted above, Defendant served its Interrogatories and Requests for Production on January 19, 2010. January 21, the Court granted the parties' protective order (Doc. Nos. 38 and 39) Two days later, on j oint motion for a which governs "the use, disclosure and dissemination of documents and other information produced by the Parties" "private, involved." responded commercially in this litigation, sensitive or particularly where non-public information is This protective order was in place well before Velocity to either the Interrogatories or the Requests for certain Requests for Production on March 1, 2010. Velocity raises the objection that Production seek "information containing or reflecting confidential, proprietary and/or commercially sensitive business information or 11 trade secrets i as "overly privilege. II this obj ection is always coupled wi th another, such broad and unduly burdensome II or attorney-client In none of those instances does Velocity explain why the protective order would not apply to the information sought. However, Plaintiff also states in those answers that \\[n]otwithstanding and without waiver of the foregoing objections, Velocity will produce non-privileged documents responsive to [the] request. II Since we have already ordered Velocity to produce a privilege log, we conclude no other objection would prevent it from responding to Request for Production Nos. 4, 5, 21, 25, 42-45, 57, and 64. 3 Velocity is therefore ordered to respond to these requests within fourteen (14) days of the date of this Memorandum. D. Irrelevant Information or Inadmissible Evidence Finally, particular we turn Interrogatory to or Velocity's Request for objection that Production a "seeks information that is neither relevant to the subj ect matter nor reasonably calculated to lead to the discovery of admissible evidence relative to any claim or defense in this action." The Court has reviewed the Complaint, the Third Party Complaint against 3 In its answers to Interrogatory Nos. 8, 9, and 10, Velocity stated that it would provide business records from which the requested information could be derived. Similarly to producing a privilege log, Rule 33(d) (1) requires business records which have not been produced to be identified "in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could." Nothing in the parties' pleadings to date reflects that Velocity has provided either the documents or a means by which Celerity could identify them. 12 Philip Elias, Counterclaims and the opposing party's answers to each of them in this case, as well as the corresponding pleadings in the consolidated case, CA No. 09-151. We then reviewed each of the instances in which this objection is invoked and conclude that it appears not to be valid, relevant instances: to some aspect of that is, this the information sought is litigation in the following Request for Production Nos. 4, 5, 6,4 14, 18, 19, 31, 40, 41, 50, 54, 56, 59-64, and 67-69, and Interrogatory Nos. 5, 10, 16, 18, 19, 21, and 22. Based on the pleadings filed to date, the Court is unable to determine if Request for Production Nos. relevant or reasonably calculated to admissible evidence in this matter. 9, 28-30, and 52 are lead to the discovery of Therefore, unless Defendant can provide such information promptly to the Court, Velocity's objections to those discovery requests will be allowed to stand. E. Celerity's Motion for Sanctions Celerity concludes its Motion by seeking monetary sanctions to compensate it for subpoenas it served on third parties in order to acquire documents that it had requested from Velocity. (Motion, , 30.) Defendant argues that as a result of Velocity's refusal to respond to the discovery requests, it has incurred legal 4 This conclusion is based on an assertion made in Exhibit C to the Motion, a letter from Defendant's counsel dated March 23, 2010, in which he describes each of the 59 entities for whom information is sought in Request for Production NO.6 as "Celerity's customers for Velocity's services." Plaintiff has not come forward with any evidence or argument that this assertion is incorrect. 13 fees and associated costs in the amount of approximately $3,960 which may be imposed on Velocity or its counsel under Fed. R. Civ. P. 23 (g) (3) and/or 37 (a) (5) . (Id., ~~ 31-32.) This is the second time within two months Celerity has filed a motion to compel discovery, despite having agreed as a matter of professional courtesy to extend the deadline by which Velocity was to respond to the discovery requests on two separate occasions. (Doc. No. 46.) Based on Velocity's "good faith estimate" that it could complete document production by April 9, 2010, the Court allowed the deadline to be extended until April 14, 2010. No. 47.) Velocity again failed to respond and, it (Doc. appears, produced nothing to supplement the responses it had provided as of March 3, 2010. Although we in no way condone Velocity's behavior in this matter, the Court declines to award monetary sanctions at this point. However, should Velocity fail to comply with the Court's orders herein to respond fully to the Requests for Production and Interrogatories, the Court will grant Celerity's motion to find Velocity has waived its stated objections Production and Interrogatories and will to the Requests re-consider Celerity's motion for sanctions. June I, 2010 William L. Standish United States District Judge 14 for
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