Hard Chrome Solutions LLC v. Machinery Equip. Rebuilders

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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HARD CHROME SOLUTIONS LLC, FRANK:

NICHOLAS, and TINA LEO, :

:

Plaintiffs, : ORDER

:

-against- : 22-CV-3439 (ENV)MMH)

:

MACHINERY EQUIP. REBUILDERS, U.S. :

GEARBOX REPAIR, A&J MACHINE BUILDERS, :

STEVE MILLER, PAUL MILLER, JIMMY MILLER, :

ANDREW MILLER, FRANK MILLER, and :

NICODEMUS MILLER, :

:

Defendants. :

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MARCIA M. HENRY, United States Magistrate Judge:

Plaintiffs Hard Chrome Solutions LLC, Frank Nicholas, and Tina Leo sued against

Defendants Machinery Equip. Rebuilders (“Machinery”), U.S. Gearbox Repair, A&J Machine

Builders, Steve Miller, Paul Miller, Jimmy Miller, Andrew Miller, Frank Miller, and

Nicodemus Miller. (See generally Compl., ECF No. 1.)1 Before this Court are Plaintiffs’

motions to compel. (See 1st Mot. to Compel, ECF No. 29; 2d Mot. to Compel, ECF No. 39.)

Plaintiffs have twice moved to compel responses to interrogatories (“ROGs”) and

requests for production of documents (“RFPs”). (1st Mot. to Compel, ECF No. 29; 2d Mot.

to Compel, ECF No. 39.) The Court partially disposed of these motions at the March and April

2023 conferences and reserved decision on the remaining issues. (Mar. 23, 2023 Min. Entry;

April 27, 2023 Min. Entry.) This Order sets forth the Court’s rulings on the remaining issues

1 All citations to documents filed on ECF are to the ECF document number (i.e., “ECF No. ___”)

and pagination “___ of ___” in the ECF header unless otherwise noted.

in Plaintiffs’ first motion (ECF No. 29) and the rulings on all issues in Plaintiffs’ second motion

(ECF No. 39). For the reasons stated below, and at the previous hearings before the Court,

both motions are granted in part.

I. LEGAL STANDARD

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to

any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.

26(b)(1). “Information is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence in

determining the action.” N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc.,

325 F.R.D. 36, 47 (E.D.N.Y. 2018). Once there is a showing of relevance, “then the party

withholding discovery on the grounds of burden, expense, privilege, or work product bears the

burden of proving the discovery is in fact privileged or work product, unduly burdensome

and/or expensive.” Winfield v. City of New York, No. 15-CV-05236 (LTS)(KHP), 2018 WL

716013, at *4 (S.D.N.Y. Feb. 1, 2018).

II. FIRST MOTION TO COMPEL

Plaintiffs’ previous motion to compel remains outstanding as to requests for production

20, 22, 24 to 31, 33, 39 to 42, and 52. (See 1st Mot. to Compel, ECF No. 29; Mar. 23, 2023

Transcript, ECF No. 36 at 71:15–17.)

A. RFPs 20, 22, 24, 29, 30, 31, 33, 41, 52

In RFP 20, Plaintiffs requested “[d]ocuments sufficient to demonstrate Paul Miller’s

experience in the machine repair business, including, but not limited to, any licenses,

certifications or accreditations.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at 8.) In RFP 22,

Plaintiffs requested “[d]ocuments or communications sufficient to identify the Corporate

Defendants’ customers during the Relevant Period.” (Id. at 9.) In RFP 31, Plaintiffs requested

“[d]ocuments reflecting, summarizing, or relating to any investigation you or anyone acting

on your behalf conducted pertaining to any Plaintiff or Plaintiffs’ family members or known

affiliates.” (Id. at 10.) In RFP 33, Plaintiffs requested “[a]ll documents and communications

concerning the identity of any Persons associated with you and which you are aware of have

communicated with the Plaintiffs during the Relevant Period.” (Id. at 10–11.) In RFP 41,

Plaintiffs requested “[a]ll documents concerning any complaints or claims made against

Defendants during the relevant period, whether such complaints be judicial, formal,

administrative or otherwise.” (Id. at 12.) In RFP 52, Plaintiffs requested “[a]ll commercial

liability policies issued to any Corporate Plaintiff since January 1, 2019 through to the

present.” (Id. at 14.)

In response to RFPs 20, 22, 31, 33, 41, and 52, Defendants responded that they did not

have any documentation responsive to that demand. (Id. at 8–9, 11–12, 14.)

In RFP 24, Plaintiffs requested “[d]ocuments sufficient to identify the corporate

structure and individual ownership interests of the Corporate Defendants.” (1st Mot. to

Compel Ex. G, ECF No. 29-7 at 9.) Defendants responded with a document for one corporate

defendant, Machinery, and explained that they did not have any other documentation

responsive to that demand. (Id.)

In RFP 29, Plaintiffs requested “[a]ll documents or communications by or between any

Defendant and Eric Butler, Maverick Engineered Products LLC, Central Jersey Trucking &

Rigging, Inc, or Dennis Sargenti.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at 10.)

Defendants responded, “There are none, all communications were done via cellphone calls.”

(Id.)

In RFP 30, Plaintiffs requested “[d]ocuments and communications sufficient to identify

any search engine optimization techniques utilized by any Defendant during the Relevant

Period, including the use of ‘key words,’ if any, utilized in connection with Google Ads.” (1st

Mot. to Compel Ex. G, ECF No. 29-7 at 10.) Defendants responded, “Defendants do [not]

possess the requested documentation.”2 (Id.)

Plaintiffs’ motion as to RFPs 20, 22, 24, 29, 30, 31, 33, 41, and 52 is denied because

the Court cannot require Defendants to “produce the impossible,” and Plaintiffs do not “cite to

specific evidence to challenge Defendants’ assertions that no additional responsive documents

exist.” Mason Tenders Dist. Council v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 42

(S.D.N.Y. 2016).

B. RFPs 25, 26, 27

In RFP 25, Plaintiffs requested “[d]ocuments sufficient to identify the Corporate

Defendant officers, directors and executives.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at

9.) Defendants responded by referring Plaintiffs to the document for Machinery but did not

specify its response as to the remaining corporate defendants. (Id.)

In RFP 26, Plaintiffs requested “[t]he Corporate Defendants articles of incorporation,

corporate charters, business or corporate registrations, licenses and authorities to conduct

business, issued by, any local, state, federal, or other governmental authority.” (1st Mot. to

Compel Ex. G, ECF No. 29-7 at 9.) Defendants responded by referring Plaintiffs to the

2 The Court notes that Defendants appear to have mistakenly omitted “not” from their response to

the RFP because their response to Plaintiffs’ deficiency letter clarifies that they do not have

responsive documentation to RFP 30. (ECF No. 29-14 at 3.)

document for Machinery but did not specify its response as to the remaining corporate

defendants. (Id.)

In RFP 27, Plaintiffs requested “[t]he Corporate Defendants by-laws, shareholder

agreements, operating agreements and minutes of any meetings of the Board of Directors,

shareholders partners, officers or directors.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at 9–

10.) Defendants responded by referring Plaintiffs to the document for Machinery but did not

specify its response as to the remaining corporate defendants. (Id. at 10.)

Plaintiffs’ motion as to RFPs 25, 26, and 27 is granted. For each of these RFPs,

Defendants shall supplement their response with documents about the other corporate

defendants. Defendants shall serve written responses, either producing the requested

information or stating that no responsive documents exist. The written responses shall be

verified by each of the defendants individually and by a representative of the corporate

defendants, as the Court directed at the April 27, 2023, hearing. (April 27, 2023 Tr., ECF No.

45 at 41:22–42:3.)

C. RFP 28

In RFP 28, Plaintiffs requested “[a]ll invoices or other documents prepared for or

delivered to T&P Machine Company, Michael Pasquale, or Commercial Plastics Recycling,

Inc.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at 10.) Defendants responded, “Please see

Exhibit F, Invoice.” (Id.) Plaintiffs asserted in their deficiency letter that Exhibit F failed to

address the request, and Defendants did not object to this assertion. (1st Mot. to Compel Ex.

K, ECF No. 29-11 at 7; see id. Ex. N, ECF No. 29-14.)

Plaintiffs’ motion as to RFP 28 is granted. Defendants shall supplement their response

with additional information to address all parts of Plaintiff’s request. The responses need to

be verified by each of the defendants individually and by a representative of the corporate

defendants, as the Court directed at the April 27, 2023, hearing. (April 27, 2023 Tr., ECF No.

45 at 41:22–42:3.)

D. RFP 39

In RFP 39, Plaintiffs requested “[d]ocuments sufficient to show the content of each of

the Corporate Plaintiffs’ websites from January 1, 2019 through to the present, including all

variations and modifications thereto.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at 12.)

Defendants responded with hyperlinks to websites for Machinery and Gearbox. (Id.) Plaintiffs

asserted this response was deficient because “these references do not contemplate what other

images or content, if any, may have appeared on these websites prior to the present.” (Id. Ex.

K, ECF No. 29-11 at 6–7.)

Plaintiffs’ motion as to RFP 39 is denied. This request is extremely broad, and

Plaintiffs have not shown how it is proportional to their needs. Fed. R. Civ. P. 26(b)(1).

E. RFP 40

In RFP 40, Plaintiffs request “[a]ll cease and desist letters or demand letters sent by or

on behalf of any Defendants.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at 12.) Defendants

referred Plaintiffs to Defendants’ counsel’s cease and desist letter. (Id.) Plaintiffs do not

explain how this response is deficient. (See id. Ex. K, ECF No. 29-11.)

Plaintiffs’ motion as to RFP 40 is denied because Defendants have responded and there

is no deficiency readily apparent to the Court.

F. RFP 42

In RFP 42, Plaintiffs requested “[a]ll documents concerning any complaints, claims, or

charges you have made against Plaintiffs, or Plaintiffs’ family members during the relevant

period, whether such complaints, claims, or charges be judicial, formal, administrative, or

otherwise.” (1st Mot. to Compel Ex. G, ECF No. 29-7 at 12.) Defendants responded that Paul

Miller had filed a police report against Frank Nicholas “in the 123 Precinct in Staten Island”

but that they did not have the police report. (Id.)

Plaintiff’s motion as to RFP 42 is granted because Defendants have the practical ability

to obtain the police report, meaning it is within their control under Fed. R. Civ. P. 34. In re

NTL, Inc. Secs. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007) (“Courts have interpreted Rule 34

to require production if the party has the practical ability to obtain the documents from another,

irrespective of his legal entitlement to the documents” (cleaned up)). Defendants shall produce

the documents with a written response verified by each of the defendants individually and by

a representative of the corporate defendants, as the Court directed at the April 27, 2023,

hearing. (April 27, 2023 Tr., ECF No. 45 at 41:22–42:3.)

III. SECOND MOTION TO COMPEL

On April 17, 2023, Plaintiffs moved for contempt and to compel compliance with the

Court’s rulings at the March 21, 2023, conference. (2d Mot. to Compel, ECF No. 39.) At a

motion hearing, the Court granted the motion to compel as to RFPs 9, 10, 11, 34, 35, 36, 37,

and 38 and as to ROGs 9, 10, 13, 14, and 15. (April 27, 2023 Min. Entry.) The Court clarified

that the verification for each ROG must be signed by each individual defendant and by a

representative of each corporate defendant. (Id.) The Court reserved decision on Plaintiffs’

request to compel a privilege log and motion for contempt. (Id.)

A. Privilege Log

When a party withholds information otherwise discoverable by claiming that

the information is privileged or subject to protection as trial-preparation

material, the party must . . . expressly make that claim; and . . . describe the

nature of the documents, communications, or tangible things not produced or

disclosed—and do so in a manner that, without revealing information itself

privileged or protected, will enable other parties to assess the claim.

Fed. R. Civ. P. 26(a)(5).

Plaintiffs request a privilege log to the extent that Defendants withheld any information

or documents based on privilege. (April 27, 2023, Tr., ECF No. 45 at 47:9–18; Proposed

Order, ECF No. 44-1 at 5.) In their response to Plaintiffs’ deficiency letter, Defendants

objected to providing any documents or communications that were privileged in response to

ROG 5 and RFPs 12 through 15. (ECF No. 29-14 at 1, 4.)

To the extent Defendants are withholding information or documents on the basis of

privilege for ROG 5 and RFPs 12 through 15, Defendants shall produce a privilege log to

Plaintiffs describing the nature of the documents, communications, or tangible things not

produced or disclosed. Fed. R. Civ. P. 26(a)(5).

B. Sanctions

If a court grants a discovery motion, “the court must, after giving an opportunity to be

hard, require the party . . . whose conduct necessitated the motion . . . to pay the movant’s

reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ.

P. 37(a)(5). “But the court must not order payment if . . . the opposing party’s nondisclosure,

response, or objection was substantially justified; or . . . other circumstances make an award

of expenses unjust.” Id.

Here, Plaintiffs’ request for sanctions under Rule 37(a)(5) is denied without prejudice.

The Court previously noted that Defendants had made efforts to comply with its rulings at the

March 21, 2023, conference. (April 27, 2023, Tr., ECF No. 45 at 51:20–52:1.) Defendants

made additional assurances of his good faith and intent to comply with discovery requirements

at the April 27, 2023, conference. (See generally id.) In light of the foregoing, an award of

expenses at this juncture is not warranted.

IV. CONCLUSION

For the foregoing reasons, in addition to the rulings made at the March 23, 2023, and

April 27, 2023, conferences, the Court grants in part Plaintiffs’ motions to compel at 29 and

39. The parties shall comply with the Court’s directives in this Order by November 1, 2023

and shall file a joint status report regarding same by November 3, 2023.

SO ORDERED.

Brooklyn, New York

September 30, 2023

/s/Marcia M. Henry

MARCIA M. HENRY

United States Magistrate Judge