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Trustees of Operating Engineers Local 965 Health Benefit Plan v. Shirley

September 29, 2010

TRUSTEES OF OPERATING ENGINEERS LOCAL 965 HEALTH BENEFIT PLAN, ET AL., PLAINTIFFS,
v.
BRIAN J. SHIRLEY, D/B/A JAYCO CONSTRUCTION, BRIAN J. SHIRLEY, D/B/A JAYCO, AND JAYCO, INC., AN ILLINOIS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

OPINION

This matter is before the Court on Plaintiffs' Motion to Compel the Production of Documents (d/e 31) (Motion to Compel). Plaintiffs served Defendants with a First Request for Production of Documents on February 25, 2010. Motion to Compel, Ex. A. Plaintiffs assert that Defendants' responses to Request Nos. 10, 12, 13, and 14 are deficient. Defendants filed a Response to Plaintiffs' Motion to Compel Production of Documents (d/e 33) (Defendants' Response) opposing the Motion to Compel, and Plaintiffs then filed a Court-ordered Reply (d/e 34). Plaintiffs have attempted to resolve the matter without Court action as required under Federal Rule of Civil Procedure 37(a)(1). See Motion to Compel, ¶¶ 3, 4 & Ex. C. For the reasons set forth below, the Motion to Compel is allowed, in part, and denied, in part.

ANALYSIS

Under Federal Rule of Civil Procedure 34(b)(2)(A), a party to whom a document request is directed must respond in writing within thirty days after being served. The response to each request "must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reason." Fed. R. Civ. P. 34(b)(2)(B). A party may seek an order compelling disclosure when an opposing party has failed to respond that inspection will be permitted as requested under Rule 34. Fed.R.Civ.P. 37(a)(3)(B)(iv).

Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party. Relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1).

Provided the information requested meets the standard of relevancy described in the federal rules, the burden rests upon the party objecting to a document request "to show why a particular discovery request is improper. The objecting party must show with specificity that the request is improper." Borom v. Town of Merrillville, 2008 WL 155018, *2 (N.D. Ind. Jan. 15, 2008) (internal quotation and citations omitted). "That burden cannot be met by 'a reflexive invocation of the same baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.'" Carlson Restaurants Worldwide, Inc. v. Hammond Professional Cleaning, 2009 WL 692224, *5 (N.D. Ind. March 12, 2009) (quoting Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, *6 (N.D.Ill. Aug. 2, 2006)). The Court has broad discretion when reviewing a discovery dispute and "should independently determine the proper course of discovery based upon the arguments of the parties." Gile v. United Airlines Inc., 95 F.3d 492, 496 (7th Cir. 1996). The Court addresses the disputed discovery requests with these principles in mind.

A. Request No. 10

Request No. 10 seeks production of eleven specifically identified types of business records for the period from January 1, 2005 through December 31, 2009. Motion to Compel, Ex. A, p. 7-8. Defendants responded as follows:

Objection. This Request seeks information and documentation that is irrelevant to Plaintiffs' Complaint. Further, this Request is overly broad in scope and time. Defendants withdrew from any bargaining agreements and obligations effective on or about April 30, 2009. Without waiving said objections, please see documents attached bearing Bates Numbers JAY0001-JAY1487. Investigation continues.

Motion to Compel, Ex. B, p. 5.

Plaintiffs assert that the documents requested are the usual and customary records requested for a payroll audit. According to Plaintiffs, Defendants initially produced only time sheets and payroll check stubs for Jayco Construction, and not Jayco, Inc., for the years 2006, 2007, and 2008. Defendants produced tax returns for Jayco, Inc. for the years 2007, 2008, and 2009 at the time that they tendered their instant Response.

Defendants raise the following specific arguments in support of their claim that Request No. 10 is overly broad: (1) Jayco, Inc. was not a party to any of the underlying labor agreements; (2) Jayco, Inc. was not incorporated until 2006; (3) Brian Shirley sent a timely notice of withdrawal from the agreements in December 2008, effective April 30, 2009; and (4) Shirley does not have possession of and has not located any of the additional documents requested. These arguments are unpersuasive.

At the outset, the Court notes that none of the arguments raised by Defendants justify a failure to produce responsive documents that are in the possession, custody, or control of Brian Shirley, d/b/a Jayco Construction and Jayco for the period from January 1, 2005 through April 30, 2009. Such documents must be produced.

Plaintiffs' Amended Complaint (d/e 21) alleges claims against Defendant Jayco, Inc. under successor liability and alter ego theories. Amended Complaint, Counts II & III. Plaintiffs assert that Jayco, Inc. is the disguised continuation of Brian Shirley d/b/a Jayco Construction and Jayco, formed in an attempt to avoid obligations under the relevant labor agreements. Given these theories, records from Jayco, Inc. would be relevant despite the fact that Jayco, Inc. was not a signatory to any of the underlying labor agreements. ...


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