Opinion
No. 00-2402-JAR.
May 2, 2002
MEMORANDUM AND ORDER
Pending before the Court is Defendant's Motion for An Extension of Time for Filing Certain Reports of its Experts and Motion to Compel (doc. 67), as amended (doc. 75). For the reasons stated below, Defendant's Motion will be granted in part and denied in part.
Background
Defendant engaged Plaintiff as a subcontractor to design, detail, fabricate and supply structural steel for a power plant in China. Plaintiff sues Defendant for breach of contract related to payment for its work as subcontractor. In response, Defendant raises affirmative defenses regarding deficiencies in Plaintiff's steel designs, which allegedly caused Defendant to incur additional expenses.
At the heart of the pending discovery dispute are design calculations utilized by Plaintiff at the time Plaintiff made purchases ("mill order") of structural steel for the China Project. Although Plaintiff has produced its final design calculations, Plaintiff states it cannot produce the interim design calculations at issue because they no longer exist. Although Defendant does not challenge Plaintiff's assertion that the interim design calculations currently do not exist, Defendant argues the interim design calculations can be recreated by running the same electronic Input Files originally used by Plaintiff. Thus, Defendant argues Plaintiff has a duty to produce all of the information and materials necessary to allow Defendant to perform such a recreation. Defendant further argues its experts should be allowed to evaluate the recreated interim design calculations before being required to file their expert reports on structural steel design issues.
Before addressing the legal issues presented by Defendant's arguments, the Court first will review a summary of the facts leading up to this dispute:
May 4, 2001: Defendant serves first request for documents.
June 2001: Plaintiff produces hard and soft copies of final design calculations. Plaintiff informs Defendant intermediate design calculations no longer exist.
September 26, 2001: Defendant serves third request for documents, including:
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A request for a copy of the PPADS computer program (and user manual) utilized in performing Plaintiff's work for Defendant on the China Project;
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A request for specifications and manuals of the computer system used to run PPADS and/or to prepare load calculations, design calculations, design drawings, fabrications drawings or erections drawings for the China Project; and
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A request for the policies and/or procedures regarding preservation, storage and retrieval of all originals, revisions, corrections and modifications of load calculations, design calculations, design drawings, fabrications drawings or erections drawings for the China Project.
September 26, 2001: Defendant files, and the Court grants, a motion to extend the expert deadline to November 15, 2001 for those experts expected to testify about structural steel design.
October 15, 2001: Plaintiff produces UNIX Platform version of PPADS Program.
October 16-17, 2001: Defendant takes Rule 30(b)(6) depositions and allegedly learns for the first time that the Output Files of the 2015 PPADS runs made by Plaintiff to prepare its structural steel designs can be recreated by running the same electronic Input Files originally used.
October 23, 2001: Plaintiff produces VAX Platform version of PPADS Program.
October 30, 2001: Plaintiff produces the 2015 Input Files on C.D. #5.November 1, 2001: Plaintiff produces VAX instructions.
Discussion
Defendant asserts Plaintiff has yet to produce all of the information and materials necessary to allow Defendant to recreate the interim design calculations. Accordingly, Defendant specifically seeks the Court (1) compel Plaintiff to produce a C.D. containing the actual creation/modification dates of each of the Input Files; (2) compel Plaintiff to produce the information necessary for Defendant experts to run Input Files on the VAX and/or UNIX to recreate specific design calculations existing at the time of each Plaintiff mill order; (3) compel Plaintiff to cooperate with Defendant in Defendants' efforts to accomplish task set forth in (2); (4) grant Defendant an extension of time for the designation of structural steel experts that is equal to ninety days after the design calculations successfully have been recreated; and (5) compel Plaintiff to pay costs and expenses, including attorney and expert witness fees, incurred by Defendant in filing this motion and in Defendant's endeavor to recreate design calculations.
Plaintiff opposes Defendant's Motion to Compel for the following reasons:
• Defendant's first document request does not solicit the documents Defendant now seeks to compel;
• As it relates to Defendant's first document request, Defendant's Motion is untimely; and
• Responding as requested would create an undue burden upon Plaintiff.
Moreover, Plaintiff opposes Defendant's request for an extension of the deadline before which Defendant must designate its structural steel expert on grounds that Defendant has not diligently pursued the materials and information needed by its expert to write an opinion and the Court should not reward such dilatory conduct.
The Court will address each of Plaintiff's objections in turn.
• Motion to Compel
• Failure to Formally Request Documents within the Discovery Process
Plaintiff's first argument in opposition to Defendant's Motion to Compel is that Defendant's First Request for Documents never sought the documents Defendant now seeks to compel. Defendant disagrees, arguing Request 6 and Request 15 in the first set of discovery propounded to Plaintiff clearly encompass the interim design calculations it currently seeks to recreate from the input files and system information requested. The requests referenced by Defendant are as follows:
Request No. 6: Any and all documents relating to Black Veatch's work for Foster Wheeler, including without limitation, contracts, change orders, subcontracts, subcontract change orders, purchase orders, purchase order change orders, construction change directives, requests for information, requests for proposals, proposed change order forms, force account directions, filed orders or directives, punch lists, daily, weekly or monthly reports or meeting minutes no matter how denominated, time sheets, site records, photographs, daily, weekly, monthly and near term schedules, drawings, sketches, as-built drawing and sketches and inspection reports.
Request No. 15: All documents constituting, evidencing, referencing or relating to the design of the Project. This would necessary [sic] include, but not be limited to, any and all documents constituting, evidencing or relating to any design changes, design errors or omissions, or possible design errors or omission relating to the Project as well as correspondence, memoranda, reports or minutes and drafts thereof in which the design of the Project was discussed, mentioned and/or analyzed.
Upon review of the above discovery, the Court concludes the interim design calculations sought by Defendant are within the scope of the referenced requests. In support of this conclusion, the Court notes Plaintiff produced the final version of its design calculations in written and electronic format in response to Request 15. Thus, the Court deems Plaintiff to agree that the design calculations are responsive to Request 15. The fact that the interim design calculations do not exist in their original form and must be recreated does not take the such calculations outside the scope of the request.
A. Timeliness of Motion
Plaintiff next argues the Court should deny the pending Motion to Compel as untimely. In support of its Motion, Plaintiff asserts it responded to Defendant's first discovery requests in June 2001 and Defendant did not file its motion to compel until November 8, 2001 — over five months after the responses were served. See D.Kan. Rule 37.1(motions to compel must be filed within thirty days of the default or service of the response).
The Court finds Plaintiff's argument to be without merit. Defendant asserts, and Plaintiff does not dispute, that Defendant did not become aware until the deposition of a corporate representative in mid-October 2001 that Plaintiff "had in its possession records kept by electronic means which could be used to recreate all of the design calculations which were called for in Defendant's May 4, 2001" discovery requests. Defendant's Reply brief at p. 5 (doc. 83). Under these circumstances, the Court considers the instant motion timely filed.
B. Undue Burden
Plaintiff's last objection to producing the requested materials is based on undue burden. As the party resisting the discovery, Plaintiff has the burden to show facts justifying its objections. See Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D.Kan. 1991). Those resisting discovery must demonstrate that the time or expense involved in responding to requested discovery is unduly burdensome. Williams v. Bd. of Cty. Commissioners of the Unified Government of Wyandotte Cty., 98-2485-JTM, 2000 WL 1475873, *1 (D.Kan. Aug. 14, 2000). Moreover, the party resisting discovery has the obligation to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to produce the requested documents. Id. This information is necessary to enable the Court to determine the burden imposed by the discovery.
"In making a decision regarding burdensomeness, a court should balance the burden on the interrogated party against the benefit to the discovering party of having the information." Beach v. City of Olathe, Kansas, 203 F.R.D. 489, 493 (citing Hoffman v. United Telecomms., Inc., 117 F.R.D. 436, 438 (D.Kan. 1987)). Discovery should be allowed unless the hardship is unreasonable in the light of the benefits to be secured from the discovery. Snowden, 137 F.R.D. at 333.
In support of its assertion of undue burden, Plaintiff states it spent over $400,000 on computer costs for the project and anticipates it would cost another $400,000 in computer costs to load and run calculations on each of the 2,015 input files, in order, using the PPADS program. Plaintiff's Response at p. 9 (doc. 78). Plaintiff further asserts it would take Defendant at least 1,500 man-hours in engineering time to rerun all of the 2,015 or so input files. Id. Plaintiff argues the cost in terms of the referenced money and time would impose an undue burden upon it if Plaintiff was required to bear the costs associated with this project.
Defendant asserts, and Plaintiff does not dispute, that the input files already have been created and currently exist in electronic format. See Defendant's Reply at p. 20 (doc. 83).
In response, Defendant argues Plaintiff's calculations regarding cost are erroneous in that Defendant does not seek to regenerate all of the design calculations for the Project, but seeks only to reproduce specific design calculations as they existed at certain key points during the design process (e.g., when Plaintiff made its mill orders of structural steel members). Accordingly, Defendant argues the outlay would not be $400,000 in computer costs and 1,500 in man-hours because it is not necessary to load and run all 2,015 input files but instead only a limited discrete number of input files need to be loaded and rerun.
Defendant further argues that, regardless of any burden imposed upon Plaintiff, Defendant needs the ability to reproduce these specific design calculations in order to fully and properly evaluate the adequacy of such designs and whether such designs met the requirements stated within the contract between Plaintiff and Defendant.
Notably, Plaintiff does not dispute the discovery is relevant. Given the asserted relevancy of the material requested and the undisputed assertion that Defendant does not seek to regenerate all of the design calculations for the Project, but seeks only to reproduce a limited number of specific design calculations as they existed at certain key points during the design process (e.g., when Plaintiff made its mill orders of structural steel members), the Court finds Defendant's need for the materials requested outweighs any projected burden upon Plaintiff. See Snowden v. Connaught Lab., Inc., 137 F.R.D. at 332 ("[D]iscovery should be allowed unless the hardship is unreasonable in the light of the benefits to be secured from the discovery."); Beach v. City of Olathe, Kansas, 203 F.R.D. at 493 (citing Hoffman v. United Telecomms., Inc., 117 F.R.D. at 438 ("In making a decision regarding burdensomeness, a court should balance the burden on the interrogated party against the benefit to the discovering party of having the information.")).
I. Motion for Extension of Time to File Expert Report
In conjunction with its Motion to Compel, Defendant also requests an extension of time for the designation of its structural steel experts that is equal to ninety days after the design calculations successfully have been recreated. Plaintiff opposes Defendant's request on grounds that Defendant has not been diligent in reviewing the final design calculations produced months ago, in deposing key corporate individuals and in following up on discovery already produced. In response, Defendant contends Plaintiff has been less than truthful in responding to discovery propounded and has itself created the need for extension with regard to Defendant's experts.
Upon review of the arguments of counsel, the Court finds Defendant has shown good cause for the requested extension. Accordingly, Defendant's motion will be granted.
Conclusion
Based on the discussion above, Defendant's Motion is granted to the extent that
• Plaintiff shall produce CDs containing the actual creation/modification dates of each of the Input Files;
• Plaintiff shall produce the information necessary for Defendant experts to run the Input Files on the VAX and/or UNIX in order to recreate specific design calculations existing at the time of Plaintiff's mill order;
• Plaintiff shall cooperate with Defendant in Defendants' efforts to accomplish the task set forth in subsection (2) above; and
• The deadline before which Defendant shall designate its structural steel experts is hereby reset to August 1, 2002.
Defendant's Motion is denied to the extent that
• Both parties shall keep accurate records regarding the time and costs associated with the tasks set forth in (1), (2), and (3) above and, if after such tasks are accomplished, the parties are unable to come to an agreement regarding allocation of such costs in terms of time and money, the parties shall file the appropriate motion; and
• Plaintiff and Defendant shall each pay their own costs and expenses, including attorney and expert witness fees, incurred with respect to briefing the Motion.
IT IS SO ORDERED.