Packer v. Glenn O. Hawbaker, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LESTER PACKER, SR., No. 4:21-CV-01747

LESTER PACKER, II and

SHAWN DYROFF, individually and (Chief Judge Brann)

on behalf of Glenn O. Hawbaker,

Inc. Benefit Plan,

Plaintiffs,

v.

GLENN O HAWBAKER, INC.,

BOARD OF DIRECTORS OF

GLENN O. HAWBAKER, INC.,

PLAN ADMINISTRATOR OF THE

GLENN O. HAWBAKER, INC.

BENEFIT PLANT, and

JOHN DOES 1-20,

Defendants.

MEMORANDUM OPINON AND ORDER

DECEMBER 29, 2023

Pending before the Court is the Plaintiffs’ Second Motion to Compel

Discovery and for Sanctions Pursuant to Federal Rule of Civil Procedure 37. I am

asked to decide who should bear the burden of producing the relevant fringe benefit

letters when only physical copies are available.

Although the parties dispute when it became known that no electronic copies

of the letters exist,1 the Defendants are offering the Plaintiffs the opportunity to

inspect the physical copies of these documents.2 These fringe benefit letters are

stored in approximately 250 boxes and are separated by job as a matter of the

Defendants’ ordinary course of business.3 In addition to the letters, these boxes

contain significant volumes of nonresponsive documents. Copying each document

may end up costing upward of $200,000.4

Two narrow questions arise from this dispute: (1) is the Defendants’ current

offer to allow the Plaintiffs to inspect the approximately 250 boxes sufficient to

fulfill their Rule 34 obligations and (2) who must pay to copy any documents

selected by the Plaintiffs?

Rule 34 provides parties with the option of producing documents as they are

“kept in the usual course of business” or organizing and labeling “them to correspond

to the categories in the request.”5 As to the first question, the Defendants assert that

their offer to allow the Plaintiffs to inspect the documents satisfies Rule 34. This

1 The Defendants assert that the Plaintiffs have been aware of this issue since at least 2022

while the Plaintiffs claim to have learned of this issue in November 2023. See Doc. 72 (Brief

in Support of Second Motion to Compel Discovery) at 1; Doc. 71 (Memorandum of Law in

Opposition) at 4.

2 See Doc. 71 (Memorandum of Law in Opposition) at 1-2.

3 Id.

4 See Doc. 71 (Memorandum of Law in Opposition), Ex. A (On-Site Scanning Estimate).

5 FED. R. CIV. P. 34.

proposition finds some support at the surface level,6 but a closer look at this issue

undermines any serious contention that this offer to inspect alone is adequate. As the

Plaintiffs correctly note, a requesting party does not bear the burden of sorting

through “large quantities of unrequested materials” in order to identify the

documents that are actually responsive to the discovery request.7 Even when a party

claims to have provided documents exactly as they are kept in their usual course of

business, courts have required the producing party to index the documents when vast

quantities of materials are at issue or the producing party is “overly generous” in

their response.8 Therefore, the Court concludes that the Defendants must index the

documents in the approximately 250 boxes “to organize and label documents as

responsive to Plaintiffs’ requests.”9

Reinforcing this conclusion is the Court’s recognition that the fringe benefit

letters are essential to the claims posited by the Plaintiffs.10 Further, while searching

through these records will likely be a “cumbersome task” for the Defendants, the

6 See Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514, 522 (D.N.M. 2014)

(“The usual course of business—in the days of warehousing large numbers of hard copy

documents—meant giving the requesting party free access to the facility without any culling

or reviewing for responsiveness by the producing party.”).

7 See U.S. Sec. & Exch. Comm’n v. e-Smart Techs., Ins., No. CV 11-895, 2013 WL 12333681,

at *3 (D.D.C. Oct. 24, 2013) (citing 8B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2213 (3d ed. 2010)).

8 Williams v. Taser Intern., Inc., No. CIV 1:06-CV00051, 2006 WL 1835437, at *7 (N.D. Ga.

June 30, 2006).

9 Id.

10 See Doc. 72 (Brief in Support of Second Motion to Compel Discovery) at 2-5.

“burden would be much greater for the” Plaintiffs as they are unfamiliar with

Hawbaker’s record keeping system.11

As to the second question before the Court, the law on this issue is rather clear.

The requesting party must pay to copy any documents.12 “Under no circumstances,

however, shall [the Plaintiffs] be required to bear any other costs associated with the

copying, and if necessary, shipping, of the documents, including but not limited to

wages paid to employees or other expenses associated with compiling, organizing,

and labeling responsive documents as required by this Order.”13

In accordance with the above, IT IS HEREBY ORDERED that:

1. The Defendants are to index the documents contained in the

approximately 250 boxes at their own expense on or before February

27, 2024;

2. Upon completion of the index, the Defendants shall organize and label

the documents which are responsive to the Plaintiffs’ discovery

request at their own expense. This organization and labeling is to be

completed on or before March 28, 2024;

3. The Plaintiffs may then enter the premises and copy the responsive

documents at their own expense on or before April 29, 2024.

11 Cheng v. AIM Sports, Inc., No. CV 10-3814, 2011 WL 13196557, at *8 (C.D. Cal. Mar. 30,

2011).

12 Williams, 2006 WL 1835437 at *6.

13 Id.

Alternatively, the Plaintiffs may elect to have the Defendants copy the

responsive documents on or before April 29, 2024; the Plaintiffs shall

then reimburse the Defendants for any copying and shipping costs

incurred.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge