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Board of Trustees of Michigan Laborers' Pension Fund v. Rite Way Fence, Inc.

United States District Court, E.D. Michigan, Southern Division

October 25, 2016

BOARD OF TRUSTEES OF THE MICHIGAN LABORERS' PENSION FUND, Plaintiff,
v.
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 [40], DENYING AS MOOT EUGENE R. ZAPCZYNSKI'S MOTION TO MODIFY SUBPOENA [47], AND DENYING AS MOOT DEFENDANTS' MOTION TO ENLARGE TIME [48]

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         This 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).

         I. BACKGROUND

         The 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.[1] (Docket no. 27 at 9.)

         On 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.

         II. GOVERNING LAW

         The 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).

         Rules 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).

         III. ANALYSIS

         A. Plaintiff's Motion to Compel Documents Subpoenaed from Non-Party Dilger & Semaan, P.C. [40]

         On 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.)

         On 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.[2] (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.)

         In the 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 ...


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