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United Illuminating Co. v. Whiting-Turner Contracting Co.

United States District Court, D. Connecticut

October 7, 2019

UNITED ILLUMINATING CO.
v.
WHITING-TURNER CONTRACTING CO ET AL

          RULING ON DEFENDANT WHITING-TURNER'S MOTION TO COMPEL (DOC. NO. 183) AND PLAINTIFF'S MOTION FOR PROTECTIVE ORDER (DOC. NO. 223)

          Robert M. Spector United States Magistrate Judge

         This litigation arises out of numerous problems with in the construction of two buildings in Orange, Connecticut. The Whiting-Turner Contracting Company [“Whiting-Turner”] contracted with the plaintiff United Illuminating Company [“United Illuminating”] for the construction of these two buildings. In February 2018, United Illuminating filed suit against Whiting-Turner to recover amounts to remedy the outstanding construction issues and amounts paid to investigate and remedy certain issues. Multiple third and fourth-party complaints were filed, and to date, there are nine parties in this case, including sub-contractors and insurers. Under the current scheduling order, document discovery is to be completed by November 12, 2019; mediations are scheduled for December 2019 and January 2020, and, if necessary, fact discovery will proceed to July 2020. (See Doc. No. 180).

         I. PROCEDURAL BACKGROUND

         On August 19, 2019, the defendant Whiting-Turner filed the underlying Motion to Compel (Doc. No. 183), with brief (Doc. No. 184), affidavits and exhibits in support (Doc. No. 183), seeking: (1) a computation of damages claimed by United Illuminating relating to its claim for $3, 000, 000 “already incurred [before February 23, 2018] . . . . to repair defects with the Central Facility's heating and cooling systems and power systems” [“the Mechanical Claim”], as alleged in paragraph 12 of the Complaint; and, the production of all “documents or other evidentiary material” on which its computation of damages for its Mechanical Claim is based, “including materials bearing on the nature and extent of injuries suffered[]”; (2) an order compelling United Illuminating to answer Interrogatory Nos. 5 and 6, related to the alleged defects and its $3, 000, 000 in alleged costs “already incurred” before February 23, 2018 for its Mechanical Claim; (3) sanctions in the form of striking this $3, 000, 000 claim; (4) an order compelling the production of documents, including certain electronically stored information [“ESI”], dating back to January 1, 2008, as well as back up files to replace ESI that United Illuminating claims was lost during an “email migration” in 2012, including emails for two United Illuminating custodians, Vallillo and Torgerson, who were significantly involved with the Central Facility Project by applying the agreed upon search terms to the agreed upon time frame; and (5) an order compelling United Illuminating to produce a list of exclusionary search terms that it is using to exclude from production ESI that is responsive to the agreed upon search terms, or, in the alternative, to produce all ESI responsive to the agreed upon search terms without the use of exclusionary search terms. (Doc. No. 184 at 2-3). Whiting-Turner also seeks sanctions and the appointment of a Magistrate Judge to oversee discovery. (Doc. No. 184 at 3).

         Ten days later, United Illuminating filed a Motion for Protective Order (Doc. No. 187) with brief and multiple exhibits in support. The issue underling this Motion is the emails lost during United Illuminating's email migration. When undertaking discovery, United Illuminating learned that email before 2010 is unavailable because of this email migration that it originally disclosed occurred in 2012, but actually occurred between March and June 2011. In response, Whiting-Turner noticed a deposition for September 3, 2019, seeking testimony on topics relating to United Illuminating's email migration, and served a Request for Production of Documents related thereto. (Doc. No. 187-1 at 3). The Motion for Protective Order followed.

         Ten days thereafter, United Illuminating filed an Emergency Motion for Postponement of Deposition, relating to its Motion for Protective Order. (Doc. No. 188). On the same day, the Court (Eginton, J.) referred all the pending discovery motions to this Magistrate Judge. (Doc. Nos. 190, 193; see Doc. Nos. 187, 188, 189)

         Following an immediate telephonic conference held the same day, the Court granted the plaintiff's Emergency Motion for Postponement of Deposition (Doc. No. 197; see also Doc. Nos. 188, 192, 189, 198), and scheduled a continued telephonic conference for September 4, 2019, to address the plaintiff's Motion for Protective Order (Doc. No. 187). During the conference call, the parties reported some progress towards resolving the Motion for Protective Order (Doc. Nos. 197, 199), and a continued call was set for September 16, 2019. (Doc. No. 200). On September 9, 2019, the plaintiff filed its brief in opposition to Whiting-Turner's Motion to Compel. (Doc. No. 203).

         The Court held a productive conference call on September 16, 2019 (Doc. Nos. 200, 204), following which the Court denied United Illuminating's Motion for Protective Order without prejudice to renewal. (Doc. No. 206). The Court's Memorandum of the Telephonic Discovery Conference reads:

Counsel agreed that they will continue to work together to address outstanding issues through a phase process as they described it to the Court. If the parties hit an impasse, they shall contact the Court for a telephonic conference call. No deposition relating to the server issue shall be noticed prior to a conference call with the Court and an opportunity for United Illuminating to refile its Motion for Protective Order.
Additionally, as agreed upon by counsel, the parties will continue to work to resolve the issues in Whiting-Turner's Motion to Compel (Doc. No. 183).
A follow up telephonic status conference to discuss discovery, including the Motion to Compel, and to address settlement, is set for Thursday, September 26, 2019 at 11:30 a.m.

(Doc. No. 205).

         On September 23, 2019, Whiting-Turner filed its reply to its Motion to Compel. (Doc. No. 214). Two days later, United Illuminating filed a Motion for Permission to File a Sur-Reply brief (Doc. No. 215); Whiting-Turner filed an objection the same day. (Doc. No. 216). The Court held its telephonic discovery conference the next day (Doc. No. 218), during which it granted United Illuminating's Motion for Permission to File a Sur-Reply brief and set the remaining outstanding issues down for oral argument on October 4, 2019. (Doc. Nos. 217-19).

         The day before the oral argument, United Illuminating filed a Statement of Position on Outstanding Discovery Issues, with exhibits in support (Doc. No. 222), and filed its renewed Motion for Protective Order (Doc. No. 223). Later that day, Whiting-Turner filed its Statement of Position, with exhibit in support. (Doc. No. 225). The Court heard oral argument on October 4, 2019. (Doc. No. 226; see Doc. No. 219).

         A. MOTION TO COMPEL

         There are six issues addressed in Whiting-Turner's Motion to Compel. After consideration of the parties' extensive briefing, and lengthy oral argument before the undersigned, the Court articulated its ruling on each of these issues on the record during the October 4, 2019 oral argument, and memorializes these conclusions as follows:

         1. COMPUTATION OF DAMAGES RELATING TO PARAGRAPH 12 OF THE COMPLAINT

         United Illuminating shall continue to produce responsive documents, on a rolling basis, up to the deadline for document discovery, which is November 12, 2019.

         2. INTERROGATORY NO. 5 AND INTERROGATORY NO. 6

         Consistent with the Court's Order regarding United Illuminating's production relating to the computation of damages, United Illuminating shall continue to supplement its production through its rolling compliance, up to November 12, 2019. United Illuminating shall answer Interrogatory Nos. 5 and 6 as fully as it can, meaning, as the Court stated on the record, that when United Illuminating is asked to identify defects, United Illuminating shall be as specific as it can in its responses, so that Whiting-Turner can determine which sub-contractor performed the allegedly defective work, and which additional costs allegedly flowed from that defective work.

         3. SANCTIONS

         Federal Rule of Civil Procedure 37(d)(1)(A)(ii) states that the “court may, on motion, order sanctions if . . . a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answer, objections, or written response.” Id. Rule 37(d) sanctions “are reserved for the most flagrant instances of discovery non-compliance.” Doe v. Mastoloni, 307 F.R.D. 305, 308 (D. Conn. 2015) (emphasis in ...


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