United States District Court, E.D. Michigan, Southern Division
BOARD OF TRUSTEES OF THE MICHIGAN LABORERS' PENSION FUND, Plaintiff,
RITE WAY FENCE, INC., MARX CONTRACTING, INC., H & H RENTALS L.L.C., and EUGENE M. ZAPCZYNSKI, Defendants.
MATTHEW F. LEITMAN, DISTRICT JUDGE
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO
COMPEL , DENYING AS MOOT EUGENE R. ZAPCZYNSKI'S
MOTION TO MODIFY SUBPOENA , AND DENYING AS MOOT
DEFENDANTS' MOTION TO ENLARGE TIME 
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff Board of Trustees
of the Michigan Laborers' Pension Fund's Motion to
Compel Documents Subpoenaed from Non-Party Dilger &
Semaan, P.C. (Docket no. 40.) Plaintiff filed a Statement of
Resolved and Unresolved Issues with regard to this Motion, to
which Dilger & Semaan, P.C. objected, and Plaintiff
replied to Dilger & Semaan, P.C.'s Objection. (Docket
nos. 50, 57, and 58.) Also before the Court are non-party
Eugene R. Zapczynski's Motion to Modify Subpoena to
Testify at a Deposition and Production of Documents for an
Enlargement of Time and Protective Order (docket no. 47) and
Defendants Rite Way Fence, Inc., Marx Contracting, Inc., H
& H Rentals L.L.C., and Eugene M. Zapczynski's Motion
to Enlarge Time to Respond to Plaintiff's Second Request
for Production of Documents (docket no. 48). Response and
reply briefs have been filed with regard to each of these
Motions. (Docket nos. 49, 54, 55, and 59.) The Motions have
been referred to the undersigned for consideration. (Docket
nos. 41 and 51.) The Court has reviewed the pleadings and
dispenses with oral argument pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2). The Court is now ready to rule
pursuant to 28 U.S.C. § 636(b)(1)(A).
Michigan Laborers' Pension Fund (“Pension
Fund”) receives contributions from employers in the
building and construction industry who are bound to
collective bargaining agreements (“CBAs”) with
the Michigan Laborers' District Council and/or its
affiliated unions. (Docket no. 1 ¶ 10.) According to
Plaintiff, the CBAs require employers to make contributions
to the fund for covered work performed by their employees.
(Id.) Plaintiff alleges that Defendants Rite Way
Fence, Inc. (“Rite Way”) and Marx Contracting,
Inc. (“Marx”) were each bound to a 2008-2013 CBA,
which expired on June 1, 2013. (Id. ¶¶ 12,
26.) Plaintiff further alleges that Defendants Rite Way and
Marx terminated their CBAs on the expiration date and
permanently ceased making payments to the Pension Fund for
work performed by their employees after that date, but they
continued to conduct business in the construction industry
within the geographical limits of the terminated CBA.
(Id. ¶¶ 13-14, 27-28.) Plaintiff claims
that Defendants Rite Way and Marx's termination of the
CBAs, along with their continued operation in the industry,
constitute a complete withdrawal from the Pension Fund,
resulting in a combined withdrawal liability of almost $600,
000.00 plus accrued interest under the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. §§
1382, 1383, and 1391. (Id. ¶¶ 15-16,
29-30.) Plaintiff filed the instant Complaint to recover this
withdrawal liability, for which Plaintiff claims that
Defendants are jointly and severally liable based on alter
ego, common control, and veil piercing
theories. (Docket no. 27 at 9.)
August 30, 2016, the Court granted in significant part
Plaintiff's Motion to Enforce Court Order, Compel
Production of Documents, and Compel Depositions with regard
to Plaintiff's First Request for Production of Documents
and certain Rule 30(b)(6) depositions. (Docket no. 63.) The
Court will now address the three discovery motions remaining
in this matter.
scope of discovery under the Federal Rules of Civil Procedure
is traditionally quite broad. Lewis v. ACB Bus.
Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may
obtain discovery on any matter that is not privileged, is
relevant to any party's claim or defense, and is
proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1).
“Relevant evidence” is “evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the
evidence.” Fed.R.Evid. 401. Information need not be
admissible in evidence to be discoverable. Fed.R.Civ.P.
26(b)(1). But the scope of discovery is not unlimited.
“District courts have discretion to limit the scope of
discovery where the information sought is overly broad or
would prove unduly burdensome to produce.” Surles
ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288,
305 (6th Cir. 2007).
33 and 34 allow a party to serve interrogatories and requests
for production of documents on an opposing party.
Fed.R.Civ.P. 33, 34. A party receiving these types of
discovery requests has thirty days to respond with answers or
objections. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A). Rule 30
allows a party to conduct a deposition of any person without
leave of court, subject to certain exceptions. Fed.R.Civ.P.
30(a)(1). If the party receiving discovery requests under
Rules 33 or 34 fails to respond properly, or if the person
whose deposition is sought under Rule 30 fails to properly
comply with the rule, Rule 37 provides the party who sent the
discovery or noticed the deposition the means to file a
motion to compel. Fed.R.Civ.P. 37(a)(3)(B).
Plaintiff's Motion to Compel Documents Subpoenaed from
Non-Party Dilger & Semaan, P.C. 
January 29, 2016, Plaintiff served non-party Dilger &
Semaan, P.C., the law firm that represented Defendant
Zapczynski's ex-wife, Kelly Jean Zapczynski, in their
2007 and 2012 divorce proceedings, with a subpoena to produce
certain documents related to those proceedings. (Docket no.
40 at 2; docket no. 40-2.) Plaintiff explains that the
divorce cases involved Defendant Zapczynski's ownership
and operation of the corporate defendants in this matter;
thus, the documents sought through the subpoena are relevant.
(Id. at 2.) On February 17, 2016, Kathleen M.
Dilger, Esq. objected to the subpoena on behalf of Dilger
& Semaan, P.C. for the following reasons: (1) the scope
of the document request is overly broad and unduly
burdensome, especially where some of the documents are
equally available to the subpoenaing party as part of the
public record; (2) the information is protected by the
attorney-client privilege; (3) the information requested is
too voluminous, and the cost to locate and retrieve it from
storage and to copy it would be considerable, which would
result in an undue financial expense and burden for both Ms.
Dilger and Ms. Zapczynski; and (4) Defendant Zapczynski
should already possess, or have access to, many of the
subpoenaed documents, and Plaintiff should seek those
documents through him. (Docket no. 40-4.)
February 23, 2016, Plaintiff obtained records related to the
2012 divorce proceeding from Defendant Zapczynski's
divorce attorney. (Docket no. 40 at 8; docket no. 40-5.)
Plaintiff subsequently informed Dilger & Semaan, P.C. of
this development and effectively narrowed the scope of its
subpoena to the documents related to the 2007 divorce
proceeding. (Id.; docket no. 40-6.) Plaintiff
also informed Dilger & Semaan, P.C. that it was not
seeking privileged material and that it would reimburse the
firm for the reasonable cost of production, noting that it
recently paid a total of $322.90 for the production of the
subpoenaed documents from the 2012 divorce proceeding at 10
cents per page for hard copy documents and $80 per hour of
paralegal time. (Id. at 8-9; docket no. 40-6.)
instant Motion, Plaintiff argues that the subpoenaed
documents related to the 2007 divorce proceeding are relevant
and that Dilger & Semaan, P.C. should be ordered to
produce them, but not at the requested rate of $300 per hour;
Plaintiff argues that such a rate is grossly excessive.
(Docket no. 40 at 9-10.) Later, in its Statement of Resolved
and Unresolved Issues, Plaintiff indicates that it has since
obtained the pleadings from the 2007 divorce proceeding from
the Oakland County Circuit Court, and, as a result, it has
further narrowed the scope of the subpoena to only the
deposition transcripts from the 2007 proceeding, including
any exhibits. (Docket no. 50 at 2.) In an effort to obtain
the transcripts from another source, Plaintiff informs that
it asked Dilger & Semaan, P.C. for the court
reporter's contact information, but Dilger & Semaan,
P.C. did not respond. (Id.) Plaintiff claims that
Dilger & Semaan, P.C. refuses to produce the transcripts
until Plaintiff pays a $1, 000 deposit to be applied to
Dilger & Semann, P.C.'s cost of production at $300
per hour for attorney time and $85 per hour for paralegal
time. (Id. at 3.) Plaintiff argues that any cost to
produce the deposition transcripts would be minimal, for
which Dilger & Semaan, P.C. is not protected under
Federal Rule of Civil Procedure 45(d)(2)(B)(ii).
(Id.) Plaintiff therefore asserts ...