Malaro v. Roger Wilkie, Jr., Builder, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

MAGIE MALARO and ANTHONY )

MALARO, )

)

Plaintiffs/Counterclaim Defendants, )

)

v. ) Civil Action No. 22-10548-NMG

)

ROGER WILKIE, JR., BUILDER, INC., )

)

Defendant/Counterclaim Plaintiff. )

____________________________________)

ORDER ON PLAINTIFFS’ MOTION TO COMPEL DISCOVERY

[Docket No. 35]

August 16, 2024

Boal, M.J.

Plaintiffs Magie Malaro and Anthony Malaro (“the Malaros”) move to compel discovery

from defendant Roger Wilkie, Jr., Builder, Inc. (“RWB”) and for sanctions. Docket No. 35. For

the following reasons, this Court grants in part and denies in part the motion.1

I. FACTUAL AND PROCEDURAL BACKGROUND

The Malaros allege that in or around 2020, they decided to renovate their Westport,

Massachusetts home. Docket No. 1 at 2. They hired RWB, which never provided the Malaros

with a written contract pursuant to M.G.L. c. 142A. Id. Rather, the Malaros drafted a “scope of

work” document containing the parameters of the project and Roger Wilkie, Jr. (“Wilkie”)

provided a completion date of April 2021. Id.

The Malaros allege that they encountered numerous problems with the renovation. Id. at

1 Judge Gorton referred the motion to the undersigned on July 12, 2024. Docket No. 36.

2-4. They claim that RWB was uncommunicative and made insufficient progress on the

renovations. Id. The work that was performed was defective. Id. The renovation was still

incomplete in February 2022, and the costs incurred exceeded the estimated budget by

$77,058.69. Id. at 4.

On April 13, 2022, the Malaros filed suit against Wilkie individually and as owner of

RWB. Docket No. 1. The complaint alleges: (1) breach of contract; (2) fraudulent

misrepresentation; (3) conversion; (4) violation of M.G.L. c. 142A; (5) violation of M.G.L. c.

93A § 9(3); and (6) breach of the implied warranty of good workmanship. Id. On November 10,

2022, Judge Gorton dismissed the claims against Wilkie in his individual capacity, as well as the

fraudulent misrepresentation claim against RWB. Docket No. 11.

RWB thereafter answered the complaint and filed three counterclaims: (1) breach of

contract; (2) unjust enrichment; and (3) violation of M.G.L. c. 93A § 9. Docket No. 12. On May

19, 2023, Judge Gorton dismissed the 93A counterclaim. Docket No. 16.

On July 11, 2024, the Malaros filed a motion to compel. Docket No. 35. RWB filed an

opposition on July 24, 2024. Docket No. 38. This Court heard oral argument on August 7, 2024.

II. ANALYSIS

“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).

Whether discovery is proportional to the needs of the case depends on, among other things, “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 discovery in resolving

the issues, and whether the expense of the proposed discovery outweighs its likely benefit.” Id.

If a party fails to respond to requests for production of documents or interrogatories, the

party seeking discovery may move to compel production of the requested information. See Fed.

R. Civ. P. 37(a)(3). “[T]he party seeking an order compelling discovery responses over the

opponent’s objection bears the initial burden of showing that the discovery requested is

relevant.” Torres v. Johnson & Johnson, No. 3:18-10566-MGM, 2018 WL 4054904, at *2 (D.

Mass. Aug. 24, 2018) (citation omitted). “Once a showing of relevance has been made, the

objecting party bears the burden of showing that a discovery request is improper.” Id. (citation

omitted).

A. Document Requests

The Malaros have moved to compel RWB to produce documents in response to the

following requests: 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 20, 26, 28, 29, 30, 31, 33, 36, 42, 44, 46, 48,

49, 50, 52, and 53.

RWB’s responses are deficient in a number of ways. First, RWB’s responses

impermissibly rely on outdated language. For example, a repeated objection is that the discovery

request is “not reasonably calculated to lead to the discovery of admissible evidence.” That

language was removed from Rule 26 of the Federal Rules of Civil Procedure on December 1,

2015. As Judge Peck wrote on February 28, 2017, “[i]t is time for all counsel to learn the now-

current Rules and update their ‘form’ files.” Fischer v. Forrest, 14 Civ. 1304 (PAE) (AJP), 2017

WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017). That guidance is even more true almost nine years

after the Rule was changed. The current Rule requires evidence that is “relevant to any party’s

claim or defense.” Fed.R.Civ.Pro. 26. RWB’s failure to acknowledge the proper standard casts

doubt on whether its counsel understands its discovery obligations.

Second, RWB makes non-specific boilerplate objections throughout its responses. Again,

on December 1, 2015, Rules 26 and 34 of the Federal Rules of Civil Procedure were amended to

require discovery responses to “[s]tate grounds for objections with specificity,” and “state

whether any responsive materials are being withheld on the basis of that objection.” Id. at *1.

The 2015 Advisory Committee Notes to Rule 34 emphasize the reasons for the amendments:

Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests

be stated with specificity. This provision adopts the language of Rule

33(b)(4), eliminating any doubt that less specific objections might be

suitable under Rule 34. The specificity of the objection ties to the new

provision in Rule 34(b)(2)(C) directing that an objection must state whether

any responsive materials are being withheld on the basis of that objection.

An objection may state that a request is overbroad, but if the objection

recognizes that some part of the request is appropriate the objection should

state the scope that is not overbroad. Examples would be a statement that

the responding party will limit the search to documents or electronically

stored information created within a given period of time prior to the events

in suit, or to specified sources. When there is such an objection, the

statement of what has been withheld can properly identify as matters

“withheld” anything beyond the scope of the search specified in the

objection.

Rule 34(b)(2)(B) is further amended to reflect the common practice of

producing copies of documents or electronically stored information rather

than simply permitting inspection. The response to the request must state

that copies will be produced. The production must be completed either by

the time for inspection specified in the request or by another reasonable time

specifically identified in the response. When it is necessary to make the

production in stages the response should specify the beginning and end

dates of the production.

2015 Adv. Comm. Notes to Rule 342. Despite the clarity of the no-longer-new 2015

Amendments, RWB has provided non-compliant Rule 34 responses. For example, it repeatedly

asserts that the discovery requests are “overly broad” and “unduly burdensome” without

specification. Why is a request burdensome? How is it overly broad? RWB’s responses tell the

2 An Advisory Committee Note provides “a reliable source of insight into the meaning of a rule.”

United States v. Vonn, 535 U.S. 55, 64 n.6 (2002); see also Tome v. United States, 513 U.S. 150,

167 (Scalia, J. concurring) (recognizing the Advisory Committee’s Notes are “the most

persuasive authority on the meaning of the Federal Rules of Civil Procedure as “they display the

‘purpose’ or ‘intent’ of the draftsmen but they do not change the meaning of the Rules)(emphasis

in original).

requesting party, and ultimately the Court, nothing.

Third, RWB has also failed to identify what documents, if any, it is withholding on the

basis of each objection. In 2015, Rule 30 was amended to require such identification. As the

Advisory Committee Note explains:

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.

The producing party does not need to provide a detailed description or log

of all documents withheld, but does need to alert other parties to the fact

that documents have been withheld and thereby facilitate an informed

discussion of the objection. An objection that states the limits that have

controlled the search for responsive and relevant materials qualifies as a

statement that the materials have been “withheld.”

2015 Adv. Comm. Notes to Rule 34. RWB has failed to provide any such identification.

Fourth, RWB regularly objected on the basis that the Malaros already have certain

documents. See e.g., Docket No. 35-2 at 45, 46, 47, 49. That another party already has the

requested documents does not justify a failure to produce. Swenson v. Mobilityless, LLC, No.

CV 3:19-30168-MGM, 2022 WL 2347113, at *3 (D. Mass. June 29, 2022) (“[T]hat Plaintiffs

may have obtained relevant documents from other sources does not excuse Defendants’

discovery obligations.”).

Fifth, despite the responses stating that RWB would “produce any responsive, non-

privileged documents in its possession, custody, or control after conducting a reasonable search,”

it did not do so. At the August 7, 2024, hearing, counsel for the Malaros stated that RWB had

provided a supplemental response, however, the response merely stated that RWB had produced

all of the documents it had. At the same hearing, RWB’s counsel acknowledged that RWB could

produce certain of the documents at issue. In other words, prior to the hearing and in its written

responses, RWB represented that it either had no documents or had produced all documents Yet,

at the hearing, it became apparent that RWB had responsive documents that it had not yet

produced.

At oral argument, counsel argued that it would be burdensome to answer the Malaros’

discovery requests and they could simply seek answers at a deposition of RWB. Yet, written

discovery tools are effective in shaping and narrowing deposition questions. It is not for

opposing counsel to unilaterally decide the best method for its opponent to obtain discovery. See

Drouin v. Symetra Life Ins., Co., 242 F.R.D. 167, 169 (D. Mass. 2007).

Also, at the hearing, counsel for RWB was unable to provide any clarity regarding the

measures used to search for responsive information. For example, counsel could not provide

specifics about the number of employees at RWB, whether their phones were searched for text

messages, or the name of RWB’s IT person. He could not provide any specifics about the

cloudshare program used for the project or why his client could no longer access the materials

associated with the project. The nature of counsel’s involvement in the search process was also

unclear. Counsel repeatedly said he relied on his client and that his client was not a “tech savvy”

person. This failure raises a number of serious concerns about the integrity and

comprehensiveness of the search.

Accordingly, RWB3 must conduct a new search for material for the subject discovery

requests that is overseen by counsel that includes a search of electronic equipment including the

phones of relevant personnel. It also must inquire into RWB’s access to Buildshare, the software

3 RWB argued that is a small company and logically looking to keep litigation costs down.

However, while this Court is sensitive to the costs of litigation, because RWB is small, the

searches will be circumscribed by its size. The size of the company is also not a license to

disregard discovery obligations. RWB could have spent less money by properly responding to

the discovery responses in the first place.

program used for the project. It must then provide new responses to the subject discovery

requests in an appropriate format that is consistent with the requirements of the Federal Rules of

Civil Procedure.

B. Interrogatories

1. Interrogatories 1, 2, 8, And 9

The Malaros seek supplemental responses to interrogatories 1, 2, 8, and 9 because RWB

failed to provide fulsome responses to requests that it identify certain persons. Docket No. 35-1

at 8.

Local Rule 26.5(c)(3) requires a party to include the following information when asked to

“identify” a person: the person’s full name, present or last known address, and, for a natural

person, the present or last known place of employment. RWB’s responses to interrogatories 1, 2,

8, and 9 do not, on their faces, contain all of this information.

RWB argues that, pursuant to Rule 33(d) of the Federal Rules of Civil procedure, it has

responded adequately to the Malaros’ interrogatories because its document production contains

the sought after information. Docket No. 38 at 5. “[R]eliance on Rule 33(d) is appropriate when

the interrogatory requests objective facts that are obvious from the specified documents . . . .”

JH Brown Enter. v. Am. Guar. And Liab. Ins. Co., No. 8:21-cv-2020-TPB-SPF, 2022 WL

19919878, at *5 (M.D. Fla. Mar. 30, 2022). To rely on Rule 33(d), a party must satisfy four

criteria:

(1) it must affirm that the information sought by the requesting party is in fact in

the specified records; (2) it must specify the actual documents where information

will be found; (3) it must show that answering the interrogatory in the conventional

manner would impose a burden on it; and (4) it must show that the burden of

deriving the answer from the specified records will be substantially the same for

both parties.

AMAG Pharms., Inc. v. Am. Guarantee & Liab. Ins. Co., No. 21-CV-10618-LTS, 2022 WL

16950437, at *6 (D. Mass. Nov. 15, 2022) (citation omitted).

RWB has done none of the above with respect to interrogatories 1, 2, 8, and 9. See

Docket No. 35-2 at 25-27, 30, 31. Indeed, when citing to its document production, it simply

states “[s]ee RWB Response to Document Request.” Id. at 30, 31. RWB’s counsel routinely

notes that it has produced more than 1,000 pages of documents. See Docket No. 38 at 2, 4.

Instructing the Malaros to sift through hundreds of pages of RWB’s production is insufficient.4

See Mulero-Abreu v. Puerto Rico Police Dep’t, 675 F.3d 88, 93 (1st Cir. 2012) (“[A]nswering

interrogatories simply by directing the proponent to rummage through other discovery materials

falls short of the obligations imposed by Rule 33.”). Indeed, it is pointless gamesmanship.

RWB’s responses to interrogatories 1, 2, 8, and 9 are inadequate. Accordingly, RWB

must either provide specific page citations to its document production, as well as adhere to the

other requirements of Rule 33(d), or it must provide complete answers to the interrogatories

pursuant to Local Rule 26.5(c)(3).

2. Interrogatories 5 And 6

Interrogatory 5 seeks information about any individuals with whom RWB entered into a

written contract (i.e. subcontractors) to perform work on the project at issue in this case. See

Docket No. 35-2 at 28-29. RWB’s response, after propounding boilerplate objections, states “See

RWB Response to Document Request and Answer to Interrogatory #10 and Interrogatory #16.”

Id. at 29. RWB’s answers to interrogatories 10 and 16 do not include any information about

contracts with subcontractors, despite the fact that RWB’s answers to interrogatories 2, 6, 8, and

9 indicate that subcontractors were used. In addition, this response impermissibly points the

4 RWB argues that the Malaros could have relied on an index that RWB provided with its

production. Docket No. 38 at 5, 6; Docket No. 38-2. However, that index does not contain page

references and its headings do not match all of the Malaros’ requests.

Malaros to RWB’s full document production.

Interrogatory 6 seeks communications between RWB and any person or entity that RWB

hired to work on the project at issue. Docket No. 35-2 at 29. RWB’s response again

impermissibly relies on a citation to its entire document production, as well as interrogatory 10.

See id. RWB’s response to interrogatory 10 contains no information about communications

between RWB and anyone else who worked on the project.

Accordingly, RWB must either provide specific page citations to its document

production, as well as adhere to the other requirements of Rule 33(d), or it must otherwise

provide complete answers to these interrogatories.

3. Interrogatories 7, 11, 14, And 15

The Malaros seek supplemental responses to interrogatories 7, 11, 14, and 15. Docket No.

35-1 at 8-10. RWB’s responses only state “See RWB Response to Document Request.” Docket

No. 35-2 at 30, 31, 33. As explained above, these responses are deficient. Accordingly, RWB

must either provide specific page citations to its document production, as well as adhere to the

other requirements of Rule 33(d), or it must otherwise provide complete answers to these

interrogatories.

4. Interrogatories 16 And 17

The Malaros seek supplemental responses to interrogatories 16 and 17. Docket No. 35-1

at 8-11. Interrogatory 16 asks “[p]lease describe your involvement concerning the Project at the

Premises as a contractor.” Docket No. 35-2 at 33. After asserting boilerplate objections, RWB

responded:

RWB was employed by Plaintiff on the Project to perform as general

contractor on renovation work generally described by Plaintiff in a 3-page,

unsigned document entitled “SCOPE OF WORK PHASE ONE FOR

ROGER” dated August 22, 2020. The work was to be performed by RWB

on a Time & Materials basis wherein RWB would charge the cost of labor

and materials with a Contractor’s Mark-up of 10% added. RWB sent an e-

mail on September 30, 2020 to Plaintiff with a “billing sample” showing an

invoice example. Plaintiff agreed to this arrangement and RWB started the

scope of work. I was on the Project site on a daily basis and managed the

work. I was not on site every day, all day. See also Answer to Interrogatory

#10.

Id.

The Malaros argue that RWB failed to describe (1) the work it performed at the Malaros’

residence; (2) whether the work was completed in a timely manner; and (3) whether all of the

work required to be completed under the scope-of-work document was completed by RWB.

Docket No. 35-2 at 88; see also Docket No. 35-1 at 5-6. The interrogatory does not request that

information. Rather, it asks to “describe your involvement.” RWB has done so. Accordingly,

RWB need not supplement this interrogatory.

Interrogatory 17 asks “[p]lease describe your involvement concerning the installation of

any building materials at the Premises.” Id. at 34. RWB responded “See RWB Answer to

Interrogatory #16.” Id. RWB’s response to interrogatory 16 contains nothing about installation.

This response is deficient. Accordingly, RWB must supplement its response to interrogatory 17.

III. ORDER

For the foregoing reasons, this Court grants the motion to compel. RWB must conduct a

renewed search with respect to the subject discovery requests and provide supplemental

responses within three weeks of the date of this order. This Court declines to award fees or costs

at this time. However, should the Malaros seek further assistance from the Court, and such

request is referred to the undersigned, I will consider the Defendant’s conduct that was the

subject of the instant motion in any further request for sanctions.

/s/ Jennifer C. Boal

JENNIFER C. BOAL

U.S. MAGISTRATE JUDGE