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Global Ampersand, LLC v. Crown Engineering and Construction

September 14, 2009

GLOBAL AMPERSAND, LLC, PLAINTIFF,
v.
CROWN ENGINEERING AND CONSTRUCTION, INC., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL IN PART

(Doc. 76)

AND RELATED CROSS-CLAIM.

I. Introduction

On July 30, 2009, Global Ampersand, LLC ("Plaintiff" or "Global") filed the instant Motion to Compel and an Ex Parte Application to Shorten Time to Hear the Motion. (Docs. 72, 74, and 76). The Court granted the Plaintiff's Ex Parte Application and the hearing was scheduled for August 21, 2009. (Doc. 93). The Court ordered that any opposition to the motion must be filed by August 17, 2009. No opposition to the motion was filed.

On August 19, 2009, Global filed a Supplemental Brief. (Docs. 95 and 96). On August 20, 2009, Global also filed a Declaration and an Amended Declaration of Ethan Ostroff in Lieu of a Joint Statement. (Docs. 97 and 98).

On August 21, 2009, a hearing on Plaintiff's Motion was held. Ethan Ostroff appeared telephonically and Amanda Hebesha appeared personally on behalf of Plaintiff. Michael Peters appeared telephonically on behalf of Crown Engineering and Construction ("Defendant" or "Crown"). At the conclusion of the hearing, the Court ordered that the parties file a Joint Statement to further clarify the requests in the Motion to Compel and to provide the Court with updated information. The parties filed a Joint Statement on August 26, 2009. (Docs. 104-109). A further hearing was scheduled for September 11, 2009.

Upon consideration of the hearing held on August 21, 2009, as well as a review of all of the pleadings listed above, the Court determined that this matter was suitable for decision without additional oral argument pursuant to Local Rule 78-230 (h). Plaintiff's Motion to Compel is GRANTED IN PART. Plaintiff shall be awarded attorneys' fees in the amount of $17,375.00.

II. Background

The dispute between Global and Crown centers around two (2) simultaneously occurring construction projects involving the refurbishment of power generation facilities (hereinafter collectively referred to as the "the Projects"). The Projects at issue in this litigation are located in Madera County (the "Chowchilla facility") and Merced County (the "El Nido facility"). The two facilities had lain dormant for roughly fifteen years when Global began the process of refurbishing the structures and bringing them online to be connected to the power grid. In early April 2007, Global hired Crown as the General Contractor on the Projects and the parties entered into a contract. Disputes between the parties arose regarding the Projects' schedule, billing, and the workmanship. As a result, completion of the Projects was delayed. Crown stopped working on the Project on October 30, 2007. On October 31, 2007, Global alleged that Crown breached the contract. On November 6, 2007, Crown filed a Mechanics Lien on the El Nido facility. Global subsequently terminated Crown and hired a different general contractor to finish the Projects. This litigation ensued.

On November 21, 2007, Global filed a Complaint alleging Breach of Contract, Fraud and Negligence. (Doc. 1). On January 2, 2008, Crown filed a Cross-Complaint against Global alleging the following causes of action Breach of Contract; Work, Labor and Services/Agreed Price; Work, Labor and Services/Reasonable Value; Foreclosure of the Mechanic's Lien; and Enforcement of the Stop Notice. (Doc. 6). On January 16, 2009, Global filed an Amended Complaint again alleging Breach of Contract, Fraud and Negligence. (Doc. 31).

In the instant motion, Plaintiff seeks the following 1) to compel the responses to its Request for Production of Documents Number 7 including an order requiring Crown to produce all of its internal documents, including internal emails, all CDs, and other devices used to store any documents or other data, etc., relating to the Projects; 2) an order compelling Crown to explain what computer(s) used on the Project still exist, from which computer information was downloaded for preservation, and from which computer(s) information was not downloaded and preserved; 3) information regarding the protocol used to download information onto the recently produced external hard-drive along with the instructions provided in determining what to download and how to download this information; 4) sanctions against Crown for discovery failures and abuses including, but not limited to, (a) terminating sanctions for spoliation and entry of default judgment in favor of Global against Crown on all counts and dismissal of Crown's Cross-Claims, or evidentiary sanctions to include an adverse evidentiary jury instruction at trial, and (b) awarding Global its attorneys' fees and costs incurred as a result of these discovery failures and abuses in the amount of $57,453.50.

III. Discussion

A. Request for Production Number 7

On October 20, 2008, Global served its First Set of Requests for Production of Documents which requested documents as follows : "All communications or documents regarding the Project, the Contract, Global, or the Lawsuit since October 1, 2007." Joint Statement, Exhibit B at pg. 10. (Doc. 76-3).*fn1 On February 5, 2009, Crown served its Responses to the Requests for Production of Documents. Joint Statement, Exhibit C. Crown objected to the production of "electronic data" in its Responses and also objected on the grounds that the request was compound, overbroad, and unduly burdensome. Joint Statement, Exhibit C at pg. 7. Crown stated that the request was unduly burdensome because "it requests information already provided in Crown's disclosures." Joint Statement, Exhibit C, at pg. 7. Crown also stated this request for documents "is broad enough to call for information protected by the attorney-client and attorney work product privilege." Joint Statement, Exhibit C, at pg. 7.

Global contends that no privilege log has ever been produced by Crown, nor has Crown raised privilege as a defense to this motion. Substantively, Crown responded to Global's Request for Production Number 7 by stating that it "has already produced all non-privilege and responsive documents within their (sic) possession, custody and control with its Disclosures. The documents were produced as they are kept in the usual course of business and a table of contents is included in the Disclosures." Joint Statement, Exhibit C, at pg. 7.

Plaintiff is seeking an ordering compelling a response to this request because Global alleges Crown has intentionally and steadfastly refused to produce ...


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