Opinion
Civil Action 2:07-CV-265.
March 3, 2008
OPINION AND ORDER
Plaintiff seeks recovery under a performance bond issued in connection with plaintiff's sub-contract with American Native Construction and Supply Company ["AN"], which allegedly failed to perform bridge painting and sealing work for the Ohio Department of Transportation ["ODOT"].
Defendant denies liability and asserts counterclaims alleging that plaintiff failed to provide primer meeting the ODOT contract specifications and, further, improperly unilaterally terminated the subcontract with AN. This matter is now before the Court on plaintiff's motion to compel, Doc. No. 27.
Rule 37 of the Federal Rules of Civil Procedure permits a party to file a motion to compel discovery, provided that the motion to compel includes a certification that the movant has in good faith conferred or attempted to confer with the party failing to respond to the request. F.R. Civ. P. 37(a)(1). Although defendant takes the position that plaintiff has failed to confer in good faith, the Court is nevertheless satisfied that the prerequisites to seeking a motion to compel are met in this case.
Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACD Business Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). Rule 34 of the Federal Rules of Civil Procedure provides the discovery of documents in the "possession, custody, or control" of a party, provided that the documents requested fall "within the scope of Rule 26(b)." F.R. Civ. P. 34(a)(1) (2007).
Rule 26(b), in turn, provides that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . ." F.R. Civ. P. 26(b)(1) (2007). Relevance for discovery purposes is extremely broad. Miller v. Fed. Express, Corp., 186 F.R.D. 376, 383 (W.D. Tenn. 1999). "The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence." Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).
In its motion to compel, plaintiff seeks the production of "[a]ll claims filed for any claims made against any surety bond in which [AN] was the principal, including all claim letters, responses, denials, take-over agreements, agreements to pay, or other claim-related documents." Motion to Compel, at 1. Plaintiff also asks that defendant be required "to prepare an appropriate privilege log for any of the Withheld Documents that it claims are privileged." Id. In response, defendant takes the position that the requested documents are not relevant to any claim or defense in this action and represents, moreover, that its counsel's review of the requested documents "produced the only document relating to [AN's] financial condition in 2005 or 2006. . . ." Memorandum contra, at 3.
Plaintiff argues that the requested documents are relevant to "the facts and circumstances giving rise to [AN's] default," Motion to Compel, at 1, i.e., "that AN was not financially capable of performing the contract, . . . [and that] [t]hese facts and circumstances are the genesis of AN's default." Id., at 1-2. "Unquestionably, the Withheld Documents are probative of the true reasons why AN abandoned the project, and they discredit RLI's proffered `primer coat' excuse as a made up attempt to avoid the realities that AN believed it could no longer perform the work as originally bid because its business was failing." Id., at 2. Plaintiff also contends that the requested documents are probative of its bad faith claim. Id.
The parties clearly differ as to the facts and circumstances giving rise to the cessation of AN's work on the bridge and overpass project. Without at all expressing any opinion as to which party's perception is the more accurate, the Court nevertheless concludes that plaintiff's document requests are reasonably calculated to lead to the discovery of admissible evidence.
Plaintiff's motion to compel, Doc. No. 27, is therefore GRANTED.