Baker v. Walters

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CYNTHIA BAKER et al.,

Plaintiffs, No. 3:22-cv-552-M

v.

JOHN WALTERS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Cynthia and Christopher Baker (the “Bakers”) filed a Motion to

Compel, see Dkt. No. 26 (the “MTC”), which United States District Judge Barbara M.

G. Lynn has referred to the undersigned United States magistrate judge for a

hearing, if necessary, and determination under 28 U.S.C. § 636(b), see Dkt. No. 27.

The MTC asks the Court to compel Defendants John Walters, as trustee of the

Camellia Trust, ETA, and Tyler Seguin to respond to Plaintiffs’ First Set of Requests

for Production to Defendants, which were served on Defendants on October 20, 2022.

After the Bakers filed their MTC, Defendants served Defendants’ Objections

and Responses to Plaintiffs’ First Set of Requests for Production. See Dkt. No. 29-6.

Defendants then responded to the MTC, see Dkt. No. 28, and the Bakers filed

a reply, see Dkt. No. 29.

For the reasons and to the extent explained below, the Court now grants the

MTC [Dkt. No. 26].

Background

The Bakers’ MTC explains that,

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[b]y this lawsuit, the Bakers seek recovery for damages that they

suffered when Defendants foiled the Bakers’ efforts to close on a

residential property located in Dallas, Texas (the “Property”). As the

Court is aware, the Bakers entered into a contract (the “Contract”) to

purchase the Property for $1.789 million. Prior to closing, however, the

Property was destroyed by a tornado. When this unfortunate event

occurred, Defendants realized that they would receive more money on

an insurance claim for destruction of the Property than they would by

selling it to the Bakers under the Contract – which granted the Bakers

an option to: (1) close on the Property in its damaged condition and (2)

accept an assignment of Defendants’ Homeowners Insurance Policy (the

“Policy”) to facilitate repairs. Thus, Defendants set out to frustrate the

Bakers’ efforts to purchase the Property – including (but not limited to)

by: (1) denying the Bakers access to key information necessary to close

on the Property and (2) instructing AIG Property Casualty Company to

veto key closing conditions (i.e., the assignment of Policy benefits).

Through these (and other) acts, Defendants circumvented the Bakers’

efforts to purchase the Property – and were rewarded to the tune of at

least $3 million.

To investigate these claims, the Bakers served their First Set of

Requests for Production (the “Requests”) on Defendants on October 20,

2022. Thus, Federal Rule of Civil Procedure 34 required Defendants to

respond to the Requests on or before November 21. However,

Defendants failed to respond to the Requests or produce documents

responsive thereto. In an effort to resolve this discovery dispute, the

Bakers contacted Defendants via electronic mail regarding the status of

their responses/production on November 28 and 29, as well as on

December 1 and 5. In these correspondences, the Bakers requested that

Defendants commit to producing responsive documents on a date

certain. On December 5, Defendants indicated that they “should be able

to produce the majority, if not all, of the documents by early to mid-week

[the week of December 12].” Once again, in an effort to resolve this

discovery dispute, the Bakers responded that they would “wait until

close of business on Thursday, December 15,” but noted that if they did

“not receive a complete production by then, [they would] be forced to file

a motion.” Unfortunately, Defendants have yet to respond to the

Requests or produce any documents responsive thereto.

While the Bakers would prefer to resolve this dispute without

drawing on the Court’s limited resources, it has become clear that

intervention will be required to force Defendants’ compliance. Thus, the

Bakers respectfully request that the Court compel Defendants to

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produce all documents responsive to the pending Requests and grant the

Bakers such other and further relief as they may be entitled.

Dkt. No. 26 at 1-3 (cleaned up).

In response, Defendants explain that

Plaintiffs served their First Sets of Requests for Production on

Defendants on October 20, 2022. On December 6, 2022, Defendants

expressed their intent to produce responsive documents by early to mid-

week, the week of December 12, 2022, and inquired as to Plaintiffs’

considerations for the entry of a Protective Order to cover production of

confidential documents. In an email on December 15, 2022, counsel for

Defendants explained production of documents was forthcoming, but

slightly delayed by unavoidable health issues plaguing Defendants’

counsel, which kept him out of the office and prohibited him from

producing documents. Counsel for Plaintiffs and Defendants spoke on

the phone on December 16, 2022 and agreed that Defendants could take

the following weekend and beginning part of the following week, if

necessary, to finalize and prepare Defendants’ document production.

On Tuesday, December 20, 2022, Defendants produced to

Plaintiffs a link to Defendants’ Document Production JWTS 000001-

000224. Defendants also served Plaintiffs with Defendants’ Objections

and Responses to Plaintiffs’ First Set of Requests for Production and a

draft Joint Motion for a Protective Order for Plaintiffs’ review.

….

After receiving Plaintiffs First Set of Requests for Production,

Defendants undertook a diligent effort to identify and compile

documents responsive to the requests.

Responsive documents were compiled, reviewed, Bates labeled,

and produced on December 20, 2022.

In this production, Defendants produced two hundred twenty four

(224) documents in response to Plaintiffs’ Fist Set of Requests for

Production. The documents produced include the Unimproved Property

Contract for the property at issue in this matter (JWTS 000001-000009),

the Declaration of Trust Establishing Camellia Trust (JWTS 000010-

000034), numerous emails and attachments relating to the property at

issue among and between, including, but not limited to, John Walters,

AIG, Doug Wall, Compass Bank, Tyler Seguin, and Capital Title (JWTS

000035-000053), a Release of Earnest Money document (JWTS 000053 -

000152), a Structural Engineering Report (JWTS 000076-000150), and

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the Insurance Policy covering the property at issue. (JWTS 000153-

000224).

….

Defendants have produced all documents responsive to Plaintiffs’

First Set of Requests for Production that are within Defendant’s

possession, custody, or control. Parties have an ongoing duty to

supplement their discovery responses pursuant to Rule 26(e)(1)(A). See,

e.g., Brennan’s Inc. v. Dickie Brennan & Co., 376 F.3d 356, 374-75 (5th

Cir. 2004) (“Rule 26(e) imposes ‘a duty to supplement or correct [a]

disclosure or response to include information thereafter acquired’”). As

such, and as Defendants told Plaintiffs’ in a conference call on December

22, 2023, to the extent additional responsive documents are identified,

these documents will immediately be processed and produced pursuant

to Defendants’ obligations under the Federal Rules of Civil Procedure.

However, there are no documents being withheld, either based on

discovery objections or privilege, and therefore Defendants “cannot

produce what [they do] not have”. ORIX USA Corp. v. Armentrout, No.

3:16-mc-63-N-BN, 2016 WL 4095603, at *5 (N.D. Tex. Aug. 1,

2016)(stating a court cannot compel a party to produce non-existent

documents).

For the above stated reasons, Defendants respectfully request

that the Court deny Plaintiffs’ Motion to Compel, and for all other relief

to which Defendants are entitled.

Dkt. No. 28 at 1-3 (cleaned up).

In reply, the Bakers explain that they “reiterate their request that the Court

compel Defendants to respond to written discovery served on or about October 20,

2022,” where

the Bakers were forced to file their Motion on December 15, 2022 after

Defendants refused to respond to the Bakers’ Requests – let alone

produce documents responsive thereto. By their Response, Defendants

seek to create the impression that they have since diligently endeavored

to fulfil their discovery obligations. In fact, Defendants affirmatively

represent to the Court that – after being served with the Bakers’ Motion

– they: (1) “undertook a diligent effort to identify and compile documents

responsive to the [R]equests” and (2) “produced all documents

responsive to [the Requests] that are within Defendant’s possession,

custody, or control.” Thus, Defendants contend that the Court lacks

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authority to grant the Bakers’ Motion – arguing that the Court cannot

compel them to “produce what [they do] not have.” Unfortunately, each

of the representations made by Defendants are demonstrably false.

Dkt. No. 29 at 1-2 (cleaned up).

The Bakers ask the Court to “compel Defendants to produce all documents

responsive to the pending Requests” and “provide a sworn statement of compliance

in accordance with the Armentrout opinion” and also to “overrule Defendants’

untimely and improper objections,” where, although, “by their response, Defendants

represent to the Court that ‘there are no documents being withheld, either based on

discovery objections or privilege,’”

Defendants also seemingly indicate that they believe they may obtain

more responsive materials at a later date. Further, as noted herein, it

appears that Defendants are either withholding a wide swath of

responsive materials or they have failed to exercise even cursory

diligence in gathering documents/communications. Thus, the Bakers

respectfully request that the Court overrule Defendants’ untimely and

improper objections to ensure a final resolution of this discovery dispute.

It is axiomatic that “[t]he party resisting discovery must show

specifically how each discovery request is not relevant or otherwise

objectionable.” See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles,

894 F.2d 1482, 1485 (5th Cir. 1990); see also Lopez v. Don Herring Ltd.,

327 F.R.D. 567, 580 (N.D. Tex. 2018). “Objections to discovery must be

made with specificity, and the responding party has the obligation to

explain and support its objection.” Orchestrate HR, Inc. v. Trombetta,

178 F. Supp. 3d 476, 507 (N.D. Tex. 2016). “A resisting party’s failure to

support its objections, as a general matter, makes such an unsupported

objection nothing more than unsustainable boilerplate.” Janvey v.

Alguire, No. 3:09-CV-724-N-BQ, 2018 WL 11362638, at *5–6 (N.D. Tex.

Oct. 17, 2018). Thus, “to properly state an objection,” there must be: (1)

a previously made, timely objection in response; (2) that is specific and

not general or boilerplate; and (3) a reurging of the same timely, specific

objection at the Motion to Compel stage. Apollo MedFlight, LLC v.

BlueCross BlueShield of Tex., No. 2:18-CV-166-Z-BR, 2020 WL 520608,

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at *4 (N.D. Tex. Jan. 13, 2020). Here, Defendants have failed to meet

their burden in every regard.

First, Defendants’ objections should be overruled because

Defendants failed to timely assert them. A party must respond to

written discovery within 30 days of service. Fed. R. Civ. P. 26(b)(2)(A),

34(b)(2)(A). When a party fails to timely respond to written discovery, it

waives any objections to those requests. In re United States, 864 F.2d

1153, 1156 (5th Cir. 1989). “This waiver applies to all objections,

including objections based on attorney-client privilege and work

product.” Madison One Holdings, LLC v. Punch Int’l, B.V., No. 4:06-CV-

03560, 2008 WL 11483220, at *1 (S.D. Tex. Aug. 27, 2008); see also

Booklab, Inc. v. Jensen, No. A-07-CA-536 LY, 2008 WL 11333871, at *1

(W.D. Tex. Jan. 14, 2008). Here, the Bakers served their Requests on

October 20, 2022. Thus, Federal Rule of Civil Procedure 34 required

Defendants to respond to the Requests on or before November 21.

However, Defendants failed to respond (or assert any objection) to the

Requests until December 20, 2023 – 60 days after their deadline to do so

and 7 days after the Bakers were forced to file their Motion. Therefore,

Defendants’ objections are untimely and must be overruled.

Even had Defendants timely asserted their objections, they failed

to state them with the requisite degree of specificity. Indeed, attached

hereto as Exhibit H is chart that: (1) summarizes Defendants’

boilerplate objections and (2) provides numerous opinions in which

district courts have overruled comparable objections. Janvey, 2018 WL

11362638, at *5–6 (“General objections such as the ones asserted by

[Defendants] are meaningless and constitute a waste of time for

opposing counsel and the court.”).

Finally, Defendants wholly fail to reurge their (untimely)

objections in the face of the Bakers’ Motion – let alone produce evidence

in support thereof. See id. at *3 (“In response to a motion to compel, an

objecting party must ‘urge and argue in support of its objection to an

interrogatory or request, and, if it does not, it waives the objection.’”).

Dkt. No. 29 at 8-10 (cleaned up).

Legal Standards and Analysis

The Court has previously laid out standards that govern a Federal Rule of Civil

Procedure 37(a) motion to compel as to Federal Rule of Civil Procedure 34 requests

for production, and the Court incorporates and will apply, but will not repeat, those

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standards here. See VeroBlue Farms USA Inc. v. Wulf, ___ F.R.D. ____, No. 3:19-cv-

764-X, 2021 WL 5176839, at *5-*9 (N.D. Tex. Nov. 8, 2021); Lopez v. Don Herring

Ltd., 327 F.R.D. 567, 573-86 (N.D. Tex. 2018).

I. Untimely Objections

The Bakers served Plaintiffs’ First Set of Requests for Production to

Defendants on October 20, 2022. Defendants’ responses were due on November 21,

2022. See FED. R. CIV. P. 34(b)(1). Defendants did not served their written responses

and objections or produce written documents until 29 days later, on December 20,

2022. See Dkt. No. 29-6.

The Court has previously explained that, “as a general rule, when a party fails

to object timely … production requests …, objections thereto are waived”; that, “[i]f a

party fails to timely respond in writing after being served with a request for

production of documents, it is appropriate for the Court to find that the party’s

objections are waived, unless the court finds good cause and excuses [that] failure”;

and that, “even where the responding party has timely served some objections to a

Rule 34(a) request, this waiver extends to any grounds not stated in a timely

objection.” Lopez, 327 F.R.D. at 582 (cleaned up).

“In deciding whether good cause exists, courts consider (1) the length of the

delay in failing to object; (2) the reason for the delay; (3) whether there was any bad

faith or dilatory action of the party that failed to object; (4) whether the party seeking

discovery was prejudiced by the failure; (5) whether the document production request

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was properly framed and not excessively burdensome; and (6) whether waiver would

impose an excessively harsh result on the defaulting party.” Evanston Ins. Co. v.

McDonnell Coates LLP, No. 3:20-cv-770-D, 2021 WL 2400992, at *3 (N.D. Tex. June

11, 2021).

Defendants’ explanation for its late-served objections based on their counsel’s

illness only accounts for the last half of the 29-day period in which their responses

and objections were overdue. The Bakers’ counsel began asking over email about the

tardy responses and production on November 28, 2022 (7 days after the deadline) and

again asked over email at least twice more over the following 7 days. See Dkt. No. 26

at 1-2; Dkt. No. 26-2.

But the Court need not determine whether Defendants’ objections are waived

by the 29-day delay because the objections are all (other than as to privilege and work

product) overruled or waived for other reasons, as the Court explains below.

As to Defendants’ objections based on attorney-client privilege or work product

protection, Defendants, as parties often do, made specific objections to certain of the

Baker’s Rule 34(a) request for production “to the extent it seeks documents and

information protected by the attorney-client privilege, work product doctrine, or any

similar privilege.” E.g., Dkt. No. 29-6 at 6 of 29.

But those objections do not, alone, fulfill the withholding party’s obligations

that Federal Rule of Civil Procedure 26(b)(5)(A) imposes by requiring that, “[w]hen a

party withholds information otherwise discoverable by claiming that the information

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is privileged or subject to protection as trial-preparation material, the party must: (i)

expressly make the claim; and (ii) 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(b)(5)(A); see Jolivet v. Compass Grp.

USA, Inc., 340 F.R.D. 7, 20-23 (N.D. Tex. 2021); accord Heller v. City of Dallas, 303

F.R.D. 466, 486 (N.D. Tex. 2014) (“To comply with the requirements to support

withholding any responsive document or information as privileged or protected work

product, a privilege log or equivalent document complying with Federal Rule of Civil

Procedure 26(b)(5)(A)’s requirements must be produced for any documents,

communications, or other materials withheld from production on the grounds of

attorney-client privilege, work product, or other privilege, immunity, or protection.

Accordingly, a party may properly raise and preserve an objection to production of

documents in response to a specific document request or interrogatory by objecting

“to the extent” that the requests seeks privileged materials or work product, so long

as the responding party also provides the information required by Rule 26(b)(5)(A).”).

At the same time, the withholding party, to comply with Rule 26(b)(5)(A), may

– and often does – serve a privilege log after, as Rule 34(b) requires, timely serving

the party’s written objections and responses to the requests for production. See Heller,

303 F.R.D. at 486; see generally E.E.O.C. v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th

Cir. 2017) (explaining that, “although Rule 26 does not attempt to define for each case

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what information must be provided, a privilege log’s description of each document

and its contents must provide sufficient information to permit courts and other

parties to test[] the merits of the privilege claim” and that “[c]ontinual failure to

adhere to Rule 26’s prescription may result in waiver of the privilege where a court

finds that the failure results from unjustified delay, inexcusable conduct, or bad faith”

(cleaned up)).

Under these circumstances, the Court does not find that Defendants’ 29-day

delay in serving objections waived their right to withhold privileged or work product

documents as outside the scope of permissible discovery under Federal Rule of Civil

Procedure 26(b)(1).

II. Improper Objections

As the Bakers assert, “[e]ven had Defendants timely asserted their objections,

they failed to state them with the requisite degree of specificity” and then “fail to

reurge their (untimely) objections in the face of the Bakers’ [MTC] – let alone produce

evidence in support thereof.” Dkt. No. 29 at 10.

Defendants served objections to all 59 requests in Plaintiffs’ First Set of

Requests for Production to Defendants. See Dkt. No. 29-6.

As the Bakers’ summary chart filed with their reply reflects, those objections

include relevance (including based on the obsolete “reasonably calculated” standard),

overbreadth, vagueness and ambiguity, undue burden, and attorney-client privilege

and work product objections. See Dkt. No. 29-5.

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And, as the Bakers’ summary chart illustrates, those objections are all

unsupported boilerplate and are invalid based on Defendants’ failing to make the

objections “with specificity” and “to explain and support [their] objections.” VeroBlue,

2021 WL 5176839, at *7 (cleaned up).

As to relevance and proportionality and reasonable particularity, Defendants

assert, for example:

• “This Request encompasses documents that are irrelevant to the merits

of this case and whose connection to the claims or defenses in this suit

is highly remote and attenuated. In this way, this Request fails to

describe with reasonable particularity each item or category of items

requested, as required by Federal Rule of Civil Procedure 34(b)(1)(A).”

• “Defendants object to this Request because it seeks information that is

neither relevant nor reasonably calculated to lead to the discovery of

admissible evidence.”

• “Defendants further object to this Request as overbroad and not

proportional to the needs of this case because it lacks appropriate

limitations in scope and because any relevance of the information sought

would be significantly outweighed by the costs and burdens on

Defendants to produce any document ‘evidencing, summarizing, and/or

commenting on discussions with AIG concerning the Claim.’”

Dkt. No. 29-6.

As the Court has explained,

[u]nder Rule 26(b)(1), “[u]nless otherwise limited by court order, ...

[p]arties 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, considering the importance of the issues at stake in the

action, the amount in controversy, the parties’ relative access to relevant

information, the parties’ resources, the importance of the discovery in

resolving the issues, and whether the burden or expense of the proposed

discovery outweighs its likely benefit. Information within this scope of

discovery need not be admissible in evidence to be discoverable.” FED. R.

CIV. P. 26(b)(1).

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“The 2015 amendments to Rule 26 deleted ‘from the definition of

relevance information that appears ‘reasonably calculated to lead to the

discovery of admissible evidence’ because ‘[t]he phrase has been used by

some, incorrectly, to define the scope of discovery’ and ‘has continued to

create problems’ given its ability to ‘swallow any other limitation on the

scope of discovery.’’”

“Under Rule 26(b)(1), [as amended,] discoverable matter must be

both relevant and proportional to the needs of the case – which are

related but distinct requirements.” Samsung Electronics Am., Inc. v.

Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017). “To be relevant under Rule

26(b)(1), a document or information need not, by itself, prove or disprove

a claim or defense or have strong probative force or value. If it were

otherwise, it would make little sense for Rule 26(b)(1) to direct courts to

consider whether discovery that is relevant to any party’s claim or

defense is also important in resolving the issues.” Id. at 280.

Lopez, 327 F.R.D. at 573 (cleaned up).

“In the Fifth Circuit, a party who opposes its opponent’s request for production

[must] show specifically how ... each [request] is not relevant.” Maiden Biosciences,

Inc. v. Document Sec. Sys., Inc., No. 3:21-cv-327-D, 2022 WL 7662658, at *2 (N.D.

Tex. Oct. 13, 2022) (cleaned up).

Defendants’ relevance objections do not explain how the materials that each

requests seeks are irrelevant to the claims or defenses in the case or, for that matter,

are not proportional to the needs of the case. See Lopez, 327 F.R.D. at 585 (explaining

that the burden is placed “on the party resisting discovery to – in order to successfully

resist a motion to compel – specifically object and show that the requested discovery

does not fall within Rule 26(b)(1)’s scope of relevance (as now amended) or fails the

required proportionality calculation or is otherwise objectionable”).

Neither do Defendants explain how any request fails Rule 34(b)(1)(A)’s

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reasonable particularity requirement. As the Court has explained,

Federal Rule of Civil Procedure 34(b) provides that a request for

production or inspection “must describe with reasonable particularity

each item or category of items to be inspected” or produced. FED. R. CIV.

P. 34(b)(1)(A). The test for reasonable particularity is whether the

request places the party upon ‘reasonable notice of what is called for and

what is not. Therefore, the party requesting the production of documents

must provide sufficient information to enable [the party to whom the

request is directed] to identify responsive documents. The goal is that

the description be sufficient to apprise a man of ordinary intelligence

which documents are required.

This test, however, is a matter of degree depending on the

circumstances of the case. But, although what qualifies as reasonabl[y]

particular surely depends at least in part on the circumstances of each

case, a discovery request should be sufficiently definite and limited in

scope that it can be said to apprise a person of ordinary intelligence what

documents are required and [to enable] the court ... to ascertain whether

the requested documents have been produced. A Rule 34(a) request

made with reasonable particularity does not require a reasonable

attorney or party attempting to properly respond to ponder and to

speculate in order to decide what is and what is not responsive.

All-encompassing demands that do not allow a reasonable person

to ascertain which documents are required do not meet the particularity

standard of Rule 34(b)(1)(A). For example, [b]road and undirected

requests for all documents which relate in any way to the complaint do

not meet Rule 34(b)(1)(A)’s standard. Similarly, [a] request for “all

documents and records” that relate to “any of the issues,” while

convenient, fails to set forth with reasonable particularity the items or

category of items sought for [the responding party’s] identification and

production of responsive documents.

Based on these rules, this Court has, for example, determined

that an interrogatory asking a defendant to “[d]escribe in detail all facts,

proof, or evidence which, in whole or in part, form the basis of any

defendant or affirmative defenses pled in this lawsuit” is an improper,

so-called blockbuster interrogatory. Likewise, the Court has sustained

objections to Rule 34(a) requests for “[a]ll documents which evidence,

describe, concern, or otherwise relate to the allegations in your

Complaint” and “[a]ll documents not previously produced that support,

contradict, or otherwise relate in any way to any of the allegations you

have made in this lawsuit.”

….

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It is no answer for attorneys’ serving blockbuster interrogatory or

all-encompassing or broad and undirected requests for production to say

that they are not certain what the responding party has in its

possession, custody, or control and do not want to miss anything – and

so will ask for, effectively, everything. Requests and interrogatories

must be made in compliance with the Federal Rules discussed above

and, if further discovery or investigation later reveals the existence or

possible existence of additional relevant materials or information with

Rule 26(b)(1)’s scope, counsel can serve additional discovery requests

and, if necessary, seek leave to do so.

Lopez, 327 F.R.D. at 575-76, 577-78 (cleaned up). On the Court’s review of the Bakers’

request, no request fails Rule 34(b)(1)(A)’s standard.

As to overbreadth, Defendants assert, for example:

• “Defendants object to this Request as overly broad.”

• “Defendants further object to this Request because the Request’s

disregard as to the breadth and relevance of the documents

encompassed would also make it impossible for Defendants to ascertain

that they have satisfactorily produced ‘all’ responsive documents to this

Request.”

• “Defendants object to this Request as overly broad and lacking in

limitations as to scope or subject matter.”

• “Defendants object to this Request as overbroad and unduly burdensome

to the extent it seeks information that is irrelevant nor reasonably

calculated to lead to the discovery of admissible evidence.”

• “Defendants further object to this Request as overbroad and not

proportional to the needs of this case because it lacks appropriate

limitations in scope and because any relevance of the information sought

would be significantly outweighed by the costs and burdens on

Defendants to produce any document ‘evidencing, summarizing, and/or

commenting on discussions with AIG concerning the Claim.’”

Dkt. No. 29-6. Defendants’ overbreadth objections fail to “explain the extent to which

[each request] is overbroad and … respond to the extent that it is not – and explain

the scope of what the responding party is … responding to.” Heller, 303 F.R.D. at 488.

Neither do Defendants “show how the requested discovery is overly broad … by

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submitting affidavits or offering evidence revealing the nature of the burden.” Lopez,

327 F.R.D. at 580 (cleaned up).

Defendants improperly object as vague and ambiguous objections to requests

using the terms or phrases “regarding,” “listings,” “evidencing,” “summarizing,”

“commenting,” “discussing,” “summarizing,” “opining,” “constituting,” “reflecting,”

“relating,” and “depicting the Property.” Dkt. No. 29-6.

As the Court has explained, “a party objecting to discovery as vague or

ambiguous has the burden to show such vagueness or ambiguity; [a] party objecting

on these grounds must explain the specific and particular way in which a request is

vague; [t]he responding party should exercise reason and common sense to attribute

ordinary definitions to terms and phrases utilized in interrogatories and, [i]f

necessary to clarify its answers, ... may include any reasonable definition of the term

or phrase at issue; and[, i]f a party believes that the request is vague, that party

[should] attempt to obtain clarification [by conferring with the requesting party] prior

to objecting on this ground.” VeroBlue, 2021 WL 5176839, at *8 (cleaned up).

Defendants have done none of that other than to assert, as to some requests,

that the request as worded “encompasses swaths of information that are both

irrelevant to the merits of this case and disproportionate to the needs of this case” –

without further explanation of how that may be so. And Defendants have not

explained or established how any of the objected-to requests are “so vague or

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ambiguous as to be incapable of reasonable interpretation and to prohibit

[Defendants’] responses.” Heller, 303 F.R.D. at 492.

As to undue burden, Defendants assert, for example:

• “Defendants object to this Request as overbroad and unduly burdensome

to the extent it seeks information that is irrelevant nor reasonably

calculated to lead to the discovery of admissible evidence.”

• “Defendants further object to this Request as vague, ambiguous, and

overburdensome because its demand for the production of documents

‘evidencing, summarizing, and/or commenting’ on the ownership of ‘any

insurance policies’ encompasses swaths of information that are both

irrelevant to the merits of this case and disproportionate to the needs of

this case.”

• “Defendants further object that the Request is overly broad, vague,

ambiguous, and overly burdensome because it references the entirety of

page 6, rather than a specific paragraph or a part of a paragraph. Such

a broad request encompasses swaths of information that are both

irrelevant to the merits of this case and disproportionate to the needs of

this case.”

Dkt. No. 29-6. Defendants’ objections based on alleged undue burden or “overly

burdensome” are unsupported boilerplate and also fail to comply with the

requirement that “[a] party resisting discovery must show how the requested

discovery is … unduly burdensome … by submitting affidavits or offering evidence

revealing the nature of the burden.” Lopez, 327 F.R.D. at 580 (cleaned up). That, too,

“makes such an unsupported objection nothing more than unsustainable boilerplate.”

Heller, 303 F.R.D. at 490.

And, other than in response to Requests for Production Nos. 28, 52, and 54,

Defendants responded to all of the Bakers’ requests “[s]ubject to and without waiving

the foregoing objections,” often stating that Defendant will produce documents that

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“are directly relevant to Plaintiffs’ claims and Defendants’ defenses” or to a more

specific matter. Dkt. No. 29-6 at 6-29 of 29.

But responding “‘subject to’ and ‘without waiving’ objections is improper, as

the undersigned and many other judges in this circuit and elsewhere have now made

clear for several years.” VeroBlue, 2021 WL 5176839, at *8 (cleaned up).

And Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties 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).

Rule 26(b)(1) does not impose a “directly relevant” limitation on the scope of

permissible discovery, and, under Rule 26(b)(1), “[c]ourts construe relevance broadly,

as a document need not, by itself, prove or disprove a claim or defense or have strong

probative force to be relevant.” Archer v. Kennedy, No. 3:21-CV-748-N, 2022 WL

17069122, at *1 (N.D. Tex. Nov. 16, 2022).

As to objections based on attorney-client privilege or work product protection,

“[t]he scope of discovery in civil cases under Federal Rule of Civil Procedure 26(b)(1)

does not include privileged information or, absent the showing that Federal Rule of

Civil Procedure 26(b)(3) mandates, work product protected information.” Randstad

Gen. Ptr. (US), LLC v. Beacon Hill Staffing Group, LLC, No. 3:20-cv-2814-N-BN, 2021

WL 4319673, at *16 (N.D. Tex. Sept. 23, 2021) (cleaned up). Still, if Defendants are

withholding materials that are responsive to Requests for Production Nos. 2, 9, 11,

17, 23, 28, 29, 32, 33, 34-43, 45-49, 53, and 55-57 based on attorney-client privilege

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or work product protection, Defendants ae required, as the Court explained above, to

“comply with Rule 26(b)(5) and serve a privilege log in support of any claim for

withholding responsive information based on attorney-client privilege and work

product protection.” Id. at *21. It appears that Defendants have not done so because,

as of the time of their response’s filing, “there are no documents being withheld …

based on … privilege.” Dkt. No. 29 at 3.

But all of Defendants’ other objections are overruled as unsupported

boilerplate. Even if they were not, the objections are waived in any event because

Defendants did not urge those objections and “argue[] in support [of them] in

responding to the MTC.” Lopez, 327 F.R.D. at 592.

And, other than as to privilege or work product, Defendants’ “objections are

still improper even if – and, in fact, are improper for the additional reason that –

[Defendants’ response to the MTC, see Dkt. No. 28 at 3, reports] that [Defendants are]

not withholding any [documents] based on those objections.” VeroBlue, 2021 WL

5176839, at *27.

Rule 34(b)(2) requires that “[a]n objection must state whether any responsive

materials are being withheld on the basis of that objection” and so reflects that

“[o]bjections must have a consequence” – that is, that parties should only object where

the “objection … preclude[s] or prevent[s] a response, at least in part,” and “the

request is truly objectionable” because “the information or documents sought are not

properly discoverable under the Federal Rules.” Id. at *7, *8, *27 (cleaned up); see

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also id. at *24 (“Making unsupported objections along with a statement that the party

is not actually withholding any documents based on the objection – either because

the objection would not cover the responsive documents that the party has located

and is producing or because there are no responsive documents to withhold or produce

– does not make serving unsupported objections any less improper. General,

boilerplate, and unsupported objections preserve nothing and – regardless of a party

or an attorney’s concerns about what they do not know or have not yet located or may

later find – are improper and ineffective.” (cleaned up)).

Rule 34(b), “in combination with [Federal Rule of Civil Procedure 26(g)(1)],” is

written and structured as it is “so that both the requesting party and the court may

be assured that all responsive, non-privileged materials are being produced, except

to the extent a valid objection has been made.” Heller, 303 F.R.D. at 487 (cleaned up);

accord FED. R. CIV. P. 34, advisory committee notes, 2015 amendments (“Rule

34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state

whether anything is being withheld on the basis of the objection. This amendment

should end the confusion that frequently arises when a producing party states several

objections and still produces information, leaving the requesting party uncertain

whether any relevant and responsive information has been withheld on the basis of

the objections.”).

Defendants’ written objections and responses to the requests for production

make no mention of whether Defendants are withholding any responsive documents

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and, if so, what documents and why. Compare Dkt. No. 29-6, with VeroBlue, 2021 WL

5176839, at *7 (“In sum, [a] party served with written discovery must fully answer

each … document request to the full extent that it is not objectionable and

affirmatively explain what portion of … [a] document request is objectionable and

why, affirmatively explain what portion of the … document request is not

objectionable and the subject of the answer or response, and affirmatively explain

whether any responsive … documents have been withheld.” (cleaned up)).

But, in any event, as the Court explained above, Defendants may no longer

stand on any objections to producing responsive, non-privileged documents.

III. Incomplete Production

While not pressing or supporting their objections to each request, Defendants

urge the Court to deny the Bakers’ MTC because Defendants have produced

documents in response to Plaintiff’s First Set of Requests for Production to

Defendants and report that they are not withholding production of any document

based on objection or privilege. See Dkt. No. 28 at 2-3.

In support of maintaining their request that the Court “compel Defendants to

produce all documents responsive to the pending Requests,” the Bakers’ reply

explains that

[e]ven a cursory review of Defendants’ December 20, 2022 production

(the “Initial Production”) reveals that Defendants are intentionally

withholding a wide swath of responsive documents that are detrimental

to their position – including materials that the Honorable Judge

Barbara M. G. Lynn requested during the hearing held on Defendants’

Motion to Dismiss.

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As noted in the Motion, the Bakers seek recovery for damages

that they suffered when Defendants foiled the Bakers’ efforts to close on

a residential Property. Indeed, after the Property was destroyed by a

tornado pre-closing, Defendants realized that they would receive more

money on an insurance claim for destruction of the Property than they

would by selling it to the Bakers under the Contract – which granted

the Bakers an option to: (1) close on the Property in its damaged

condition and (2) accept an assignment of Defendants’ Policy to facilitate

repairs. Thus, Defendants set out to frustrate the Bakers’ efforts to

purchase the Property – including (but not limited to) by instructing AIG

Property Casualty Company (“AIG”) to veto key closing conditions (i.e.,

the assignment of Policy benefits). Through these (and other) acts,

Defendants circumvented the Bakers’ efforts to purchase the Property –

and were rewarded to the tune of at least $3 million. To retain their

inequitable windfall, Defendants misled the Bakers regarding their

efforts to obtainan assignment and/or sell the Property. In fact, while

Defendants were claiming that AIG would not agree to key closing

conditions, Defendants were (on the other hand) explicitly instructing

AIG to veto the assignment – in violation of established Texas law.

For example, on October 29, 2019, counsel for Defendants sent a

pre-closing correspondence to the Bakers in which he represented that

“it [was Defendants’] understanding that when AIG was contacted, AIG

noted that the [P]olicy contains a no-assignment provision and has

further taken the position that the [P]olicy is non-transferable.” He also

represented that “AIG has further stated that a change in ownership [of

the Policy and/or Policy benefits] is a material change in risk not covered

by the insuring agreement.” Then, on November 7, 2019, counsel again

represented that Defendants had “received written confirmation that

AIG will not consent to the assignment of the [P]olicy, rights or interests

related thereto, or the proceeds.” Thus, he asserted that “the option

provided by Section 14(c) is not applicable, as the insurance proceeds are

not assignable under the terms of the policy previously cited and

referenced.”

Not only have Defendants withheld these communications, but

they also refuse to produce any of the materials referenced therein (i.e.,

written confirmation that AIG would not consent to an assignment of

the Policy in 2019). In this regard, Defendants’ representation that they

“produced all documents responsive to [the Requests] that are within

[their] possession, custody, or control” is incorrect. Indeed, the very

individual responsible for verifying Defendants’ (mis)representations of

compliance is in possession of unproduced material responsive to the

Requests. Worse still, many of these communications were not only

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quoted verbatim in the Bakers’ Complaint, but the Bakers also informed

Defendants that they were withheld from the Initial Production during

the December 22, 2022 conference call referenced in the Response (the

“Conference”).

Defendants’ reluctance to produce these materials is

understandable – although impermissible – as it appears that one or

more of their representations were false. Indeed, materials received

from AIG reveal that it stood ready, willing, and able to assign Policy

benefits to the Bakers. In an effort to retain their inequitable windfall,

however, Defendants instructed AIG not to permit an assignment of

Policy benefits. For example, on January 6, 2020 – sixty (60) days after

Defendants represented that they received “written confirmation” that

AIG would not consent to the assignment of the “[P]olicy, rights or

interests related thereto, or the proceeds,” Defendants demanded that

AIG send an email confirming that it “[would not] allow an assignment

of the [P]olicy.” The following day, AIG responded that it was “not going

to agree to any assignment of the policy nor assignment of benefits,

given [Mr. Seguin’s] stated position that he does not want any

assignment.”

Defendants did not produce this communication – despite: (1) its

being quoted verbatim in the Complaint and (2) the Bakers’ informing

Defendants it was withheld from the Initial Production during the

Conference.18 In fact, the only correspondence that Defendants

produced from AIG related to the Bakers’ request for assignment was a

January 13, 2020 email in which AIG indicated – as demanded by Tyler

Seguin – that “AIG does not agree to any assignment of the [P]olicy nor

of its benefits.” In this regard, it is clear that Defendants have not only

failed to produce “all documents responsive to [the Requests] that are

within [their] possession, custody, or control,” but also that they are

producing only the materials that they deem beneficial to their defense.

Indeed, despite the undeniable relevance/importance of Defendants’

correspondences with AIG, the Initial Production fails to include wide

swath of these materials.

In yet another example of Defendants’ selective production,

Defendants are withholding responsive materials related to the

operation, ownership, and/or management of the Camellia Trust ETA

(the “Trust”). In this proceeding, Defendants assert a series of defenses

that rely on a very precise delineation of liability (allegedly) created by

a separation of ownership between the Property and the Policy. For

example, in their Motion to Dismiss, Defendants asserted that all claims

asserted against them should be dismissed because: (1) the Policy was

issued in Tyler Seguin’s name, (2) the Trust owned the Property, and (3)

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the Contract only required an assignment of the “Seller’s” insurance

benefits. During the hearing held on this Motion, the Honorable Judge

Barbara M. G. Lynn requested to review the application for insurance

that Defendants submitted to procure the Policy (the “Application”).

Defendants were not only unable to provide the Application to the Court,

but also refused to include it in their Initial Production. Indeed,

Defendants have failed to produce any communications exchanged with

Rampart Brokerage Corporation – believed to be Defendants’ insurance

broker – regarding the Policy or Defendants’ multi-million dollar claim

for Property damage.

While Defendants’ Motion to Dismiss based on the (alleged)

delineation of ownership between the Trust and Mr. Seguin was

unsuccessful, Defendants continue to assert similar defenses. In this

regard, Defendants brought the operation, ownership, and/or

management of the Trust into this dispute. Even so, they are

unquestionably withholding a wide swath of materials necessary to

review/assess these defenses. For example, on November 19, 2021,

opposing counsel represented that John Walters was the Trustee of the

Trust. To their credit, Defendants produced a Declaration of Trust

Establishing Camellia Trust (the “Trust Agreement”) which confirmed

that Mr. Walters was appointed as Trustee of the Trust effective on

September 13, 2016. However, Defendants withheld any

materials/communications subsequent to the execution of the Trust

Agreement. A review of applicable deed records, however, shows that –

inconsistent with opposing counsel’s prior representations – a correction

instrument was filed in which an affiant avowed that Mr. Seguin was

the “Trustee of the Camellia Trust u/t/a dated September 13, 2016.”

Defendants did not produce this instrument or any of the

communications that predicated its filing. Once again, the Bakers

inquired into this mater during the Conference to no avail.

Simply put, Defendants’ Initial Production is a facade intended to

create the appearance of compliance. This point is demonstrated when

reviewing the composition of Defendants’ 224-page production – of

which 190 pages are insurance policies/reports and contracts:

• JWTS_000153–224 (71 pages): The Policy;

• JWTS_000076–150 (75 pages): Structural Engineering Report

Commissioned by AIG;

• JWTS_000076–150 (24 pages): The Trust Agreement;

• JWTS_000061–71 (10 pages): Demolition Quote/Authorization

Prepared by AIG; and

• JWTS_000001–10 (10 pages): Contract between Defendants

and Subsequent Purchaser.

-23-

Removing these documents from the Initial Production brings

Defendants’ total page count to a lowly 34 pages – with only 14 pages of

communications exchanged between Defendants and AIG. [The

remaining 20 pages of communications were exchanged between

Defendants and their real estate broker.] Suffice it to say, Defendants

unquestionably exchanged more than 14 pages of communication before

AIG paid Defendants’ $2,847,355.14 property damage claim. Further,

several key documents that underlie this dispute were excluded from

the Initial Production. Indeed, Defendants failed to even produce the

Contract by which they agreed to sell the Bakers the Property (or the

two amendments made thereto). These and other omissions stand in

stark contrast to Defendants’ representation they “undertook a diligent

effort to identify and compile documents responsive to the [R]equests.”

Even in the face of the deficiencies noted herein, Defendants

claim that the Court lacks authority to grant the Bakers’ Motion because

the Court cannot compel them to “produce what [they do] not have.” To

support this proposition, Defendants rely on ORIX USA Corp. v.

Armentrout. As a preliminary matter, the Armentrout opinion is

unquestionably distinguishable here (at a minimum) because

Defendants’ have not actually produced all documents within their

possession, custody, or control. Defendants’ reliance on this opinion is

also misplaced, however, because the District Court noted that, while it

could not compel the production of maters that “do not exist,” the

requesting party was still “entitled to an unequivocal representation,

under oath, that [the respondent] ha[d] produced all documents that are

responsive to the requests . . . and that are in his possession, custody,

and control and that he [wa]s not withholding any responsive documents

based on his objections or otherwise.” Armentrout, 2016 WL 4095603, at

*6 (N.D. Tex. Aug. 1, 2016).

Here, Defendants have offered no such statement – likely because

they are aware that they have not met their discovery obligations. Thus,

the Bakers respectfully: (1) reiterate their request that the Court compel

Defendants to produce responsive documents and (2) provide a sworn

statement of compliance in accordance with the Armentrout opinion.

Dkt. No. 29 at 2-8 (cleaned up).

The Court has previously explained that,

[i]n response to a [Federal Rule of Civil Procedure] 34(a)(1) RFP, “a

party cannot produce what it does not have, and so, [c]learly, the court

cannot compel [a party] to produce non-existent documents.” But, “[i]n

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responding to [Rule 34] discovery requests, a reasonable inquiry must

be made, and if no responsive documents or tangible things exist, FED.

R. CIV. P. 26(g)(1), the responding party should so state with sufficient

specificity to allow the Court to determine whether the party made a

reasonable inquiry and exercised due diligence.” And “[t]he fact that a

party may disbelieve or disagree with a response to a discovery request

... is not a recognized ground for compelling discovery, absent some

indication beyond mere suspicion that the response is incomplete or

incorrect” or the requesting party’s belief, without more, believes that a

discovery production is not complete.

As a general matter, “[i]t is not the court’s role to dictate how a

party should search for relevant information absent a showing that the

party has abdicated its responsibility,” and “[a] responding party is best

situated to preserve, search, and produce its own [electronically stored

information],” which “[p]rinciple ... is grounded in reason, common

sense, procedural rules, and common law, and is premised on each party

fulfilling its discovery obligations without direction from the court or

opposing counsel[, and eschewing ‘discovery on discovery,’] unless a

specific deficiency is shown in a party’s production.”

To make this showing of a specific or material deficiency in the

other party’s production to require the responding party to engage in

additional searches or discovery efforts or to obtain “discovery on

discovery” that is “both relevant and proportional to the needs of the

case” under Rule 26(b)(1), the requesting party should make a showing,

including through “the documents that have been produced,” that allows

the Court to make “a reasonable deduction that other documents may

exist or did exist and have been destroyed” or must “point to the

existence of additional responsive material.”

VeroBlue, 2021 WL 5176839, at *9 (cleaned up).

In their reply (as quoted in full above), the Bakers have persuasively shown,

including through the documents that have been produced or that Defendants have

previously referenced in connection with this matter, that additional responsive

materials exist that Defendants have not produced. Accord Maiden, 2022 WL

7662658, at *4 (“The documents Maiden is seeking, however, do not appear to be ‘non-

existent.’ In its motion to compel, Maiden asks the court to order the DSS Defendants

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to produce their 2022 Trial Balance Sheets and any other quarterly statements in

their possession, and it attaches as exhibits to its motion examples of the types of

documents it seeks.”)

And, while Defendants now report that “there are no documents being

withheld, either based on discovery objections or privilege,” Dkt. No. 29 at 3, as the

Court discussed above, their written responses and objections suggest that

Defendants narrowly construed or in some cases limited the scope of a request in

declaring what they would produce as responsive, see Dkt. No. 29-6.

Defendants’ responding to all but 3 of the Bakers’ 57 requests “[s]ubject to and

without waiving the foregoing objections” further “leaves the requesting party

guessing and wondering as to the scope of the documents or information that will be

provided as responsive will be.” VeroBlue, 2021 WL 5176839, at *8 (cleaned up).

To comply with the governing rules, “if no responsive documents exist,

[Defendants’] responses must be sufficiently detailed so that the court can determine

whether she has made a reasonable inquiry and has exercised due diligence, as Rule

26(g)(1)requires.” Coleman v. Cedar Hill Indep. Sch. Dist., No. 3:21-cv-2080-D, 2022

WL 1470957, at *5 (N.D. Tex. May 10, 2022); accord VeroBlue, 2021 WL 5176839, at

*7, *9. Defendants have not complied with these requirements but now must do so as

to each of the Bakers’ requests. See Coleman, 2022 WL 1470957, at *5 (“Accordingly,

consistent with the court’s discussion above, Coleman must revisit her objection to

RFP No. 17 and determine whether any responsive documents are being withheld on

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the basis of the objection. If no responsive documents exists, Coleman must state this

in her updated responses, with sufficient specificity.”).

IV. Award of Expenses

Federal Rule of Civil Procedure 37(a)(5)(A) requires the Court to order

payment of the movant’s reasonable expenses in making a motion to compel,

including payment of attorneys’ fees, when a motion to compel is granted. See FED.

R. CIV. P. 37(a)(5)(A).

But Rule 37(a)(5)(A) also requires the Court must give Defendants an

opportunity to be heard as to an award of fees and expenses and provides three

exceptions under which the Court must not order payment of the movant’s fees and

expenses. See FED. R. CIV. P. 37(a)(5)(A)(i)-(iii).

The Court finds that the Bakers filed their MTC motions only after attempting

to obtain the responses to their discovery requests without court action, as the MTC

and its supporting exhibits show. See Dkt. No. 26 at 2-3.

But the Court will grant Defendants John Walters, as trustee of the Camellia

Trust, ETA, and Tyler Seguin an opportunity to, by Thursday, February 16, 2023,

file a response describing why the Court should not award expenses under Rule

37(a)(5)(A) – specifically, requiring Defendants’ and/or their counsel pay the Bakers

their reasonable attorneys’ fees and costs incurred in preparing and filing their MTC

and reply and appendices in support – by fully discussing whether either of the other

two exceptions applies or, specifically, whether Defendants’ failures to timely and

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properly respond and object to the Bakers’ requests for production were “substantially

justified” or whether other circumstances make an award of expenses under Rule

37(a)(5)(A) unjust.

If Defendants file a response, the Bakers may, by Thursday, March 2, 2023,

file a reply in support of an award under Rule 37(a)(5)(A), which reply must be limited

to addressing whether any exception under 37(a)(5)(A)(i)-(iii) should preclude an

award of expenses.

The reply need not and should not include any affidavits or declarations

supporting a lodestar determination for a fee award. If, based on this response and

reply, the Court determines to award expenses, the Court will issue a separate order

directing the filing of materials to determine the amount of any award.

Conclusion

For the reasons and to the extent explained above, the Court grants Plaintiffs

Cynthia and Christopher Baker’s Motion to Compel [Dkt. No. 26] and orders

Defendants John Walters, as trustee of the Camellia Trust, ETA, and Tyler Seguin

to, by Thursday, February 9, 2023, serve on Plaintiffs Cynthia and Christopher

Baker’s counsel complete written responses – without objections – to Plaintiffs’ First

Set of Requests for Production to Defendants and produce all unproduced, non-

privileged documents and electronically stored information that are responsive to

Plaintiffs’ First Set of Requests for Production to Defendants and that are in

Defendant’s possession, custody, or control, in compliance with Federal Rule of Civil

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Procedure 34(b)’s requirements, as explained above and laid out in VeroBlue, 2021

WL 5176839, at *6-*9, and Lopez, 327 F.R.D. at 575-79.

SO ORDERED.

DATED: January 26, 2023

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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