United States of America et al v. KAR Contracting, LLC et al, No. 3:2014cv27451 - Document 38 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendants' 28 MOTION to Compel; directing that plaintiff provide full and complete responses to the discovery requests set forth in Defendants' motion, as they are amended in this Order, within fourteen (14) days of today's date. Signed by Magistrate Judge Cheryl A. Eifert on 8/10/2015. (cc: counsel of record; any unrepresented party) (jsa)
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United States of America et al v. KAR Contracting, LLC et al Doc. 38 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION U N ITED STATES OF AMERICA, fo r th e u s e o f ASPH ALT CON TRACTORS & SITE W ORK, IN C., a Ke n tu cky co rp o ratio n , Plain tiff, v. Cas e N o .: 3 :14 -cv-2 74 51 KAR CON TRACTIN G, LLC, a W e s t Virgin ia lim ite d liability co m p an y, an d GREAT AMERICAN IN SU RAN CE COMPAN Y, an Oh io co rp o ratio n , D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is Defendant’s Motion to Com pel. (ECF No. 28). Plaintiff has filed a response, and Defendants have replied. Having reviewed the m em oranda, the undersigned finds that oral argum ent is unnecessary. For the following reasons, the Court GRAN TS, in part, and D EN IES, in part, Defendants’ m otion. Plaintiff is ORD ERED to provide full and com plete responses to the discovery requests set forth in Defendants’ m otion, as they are am ended in this Order, within fo u rte e n ( 14 ) d ays of today’s date. This civil action involves a dispute between a contractor and subcontractor that perform ed construction work at the Huntington VA Medical Center pursuant to a contract with the United States Departm ent of Veterans Affairs. Plaintiff, the subcontractor, claim s that it billed the contractor, Defendant KAR Contracting, LLC, for 1 Dockets.Justia.com work that was fully and properly com pleted by Plaintiff, but KAR refused and failed to pay the full am ount billed. Defendants contend that Plaintiff m isunderstood the original specifications of the subcontract, and, as a result, underestim ated its bid. According to Defendants, Plaintiff now seeks reim bursem ent for work it claim ed was done in excess of the subcontract, but which was actually part of the original job specifications. Furtherm ore, Defendants assert that Plaintiff is not entitled to paym ent above the am ount agreed to in the subcontract, because Plaintiff failed to properly obtain a change order prior to com pleting the additional work, as is required in the industry. Defendants served interrogatories and requests for the production of docum ents on Plaintiff inquiring, in part, about other projects in the past five years in which Plaintiff provided services as a contractor or subcontractor. Plaintiff objected to the interrogatories and docum ent requests, arguing that inform ation regarding other projects is not relevant to the contract at issue in this case. Defendants m ove to com pel the answers on the basis that Plaintiff’s behavior on other jobs is relevant to Defendants’ position that Plaintiff failed to follow industry standards in this case. Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties m ay obtain discovery regarding any m atter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, docum ents, or other tangible things and the identity and location of persons having knowledge of any discoverable m atter ... Relevant inform ation need not be adm issible at the trial if the discovery appears reasonably calculated to lead to the discovery of adm issible evidence.” Although the Federal Rules of Civil Procedure do not define what is “relevant,” Rule 26(b)(1) m akes clear that relevancy in discovery is broader than relevancy for purposes of adm issibility at trial. Caton v. Green Tree 2 Services, LLC, Case No. 3:0 6-cv-75, 20 0 7 WL 2220 281, at *2 (N.D.W.Va. Aug. 2, 20 0 7) (the “test for relevancy under the discovery rules is necessarily broader than the test for relevancy under Rule 40 2 of the Federal Rules of Evidence”); Carr v. Double T Diner, 272 F.R.D. 431, 433 (D.Md. 20 10 ) (“The scope of relevancy under discovery rules is broad, such that relevancy encom passes any m atter that bears or m ay bear on any issue that is or m ay be in the case”).1 The party resisting discovery, not the party seeking discovery, bears the burden of persuasion. See Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243– 44 (M.D.N.C. 20 10 )(citing W agner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 424– 25 (N.D.W.Va. 20 0 6). While at first blush, inform ation regarding other contracts does not appear particularly relevant to the contract with the Departm ent of Veterans Affairs, part of Defendants’ basis for refusing to pay Plaintiff am ounts in excess of the subcontract is Plaintiffs’ failure to request a change order or address its disagreem ent over the job’s scope and specifications prior to com pleting the additional work. Consequently, Plaintiff’s behavior on other projects involving the United States m ay lead to adm issible evidence. When considering, however, that contracts issued by or for the United States will likely contain term s and conditions that are not necessarily “industry standard,” or that m ay vary significantly from contracts issued by private entities, Plaintiff’s experiences on non-governm ental jobs are not likely to lead to adm issible evidence. Therefore, Plaintiff shall answer the following interrogatories and requests for production of docum ents: 1 In contrast, under the Federal Rules of Evidence, relevant evidence is ‘evidence having any tendency to m ake the existence of any fact that is of consequence to the determination of the action m ore probable or less probable than it would be without the evidence.’ Boy kin Anchor Co., Inc. v. W ong, Case No. 5:10 -cv591-FL, 20 11 WL 5599283 at * 2 (E.D.N.C. Nov. 17, 20 11) (citing United Oil Co., v. Parts Assocs., Inc, 227 F.R.D. 40 4. 40 9 (D.Md. 20 0 5)). 3 1. With respect to interrogatory num bers 5, 6, and 7, Plaintiff shall respond by providing inform ation about other work com pleted as a subcontractor or contractor for projects involving an agency, division, or departm ent of the United States governm ent. Plaintiff shall not be required to provide information about jobs not involving the federal governm ent. 2. Interrogatory num bers 18, 23, and 24 ask for inform ation that is both relevant and specific to the contract at issue. Accordingly, Plaintiff shall fully respond to those interrogatories as written. 3. Plaintiff shall respond to requests for production of docum ents num bers 9, 11, 12, and 13, but only for work perform ed as a subcontractor or contractor for projects involving an agency, division, or departm ent of the United States governm ent. Plaintiff shall not be required to provide information about jobs not involving the federal governm ent; and 4. Request for production num ber 10 , as set forth in Defendants’ m otion, is som ewhat unintelligible. However, to the extent that Defendants seek copies of Plaintiff’s docum entation related to the work that form s the basis of the com plaint, Plaintiff shall produce sam e. The Clerk is directed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : August 10 , 20 15 4
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