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Elhannon, LLC v. F.A. Bartlett Tree Expert Co.

United States District Court, D. Vermont

April 18, 2017

ELHANNON LLC, et al Plaintiffs,
v.
THE F.A. BARTLETT TREE EXPERT COMPANY, Defendant.

          OPINION AND ORDER

          William K. Sessions III District Court Judge

         This case concerns a contract and consumer fraud dispute between Plaintiffs Elhannon Wholesale Nurseries, LLC (“Elhannon”), a New York corporation represented by Downs Rachlin Martin LLC, and its predecessors, and Defendant F.A. Bartlett Tree Expert Company (“Bartlett”), a Connecticut corporation represented in this action by Woolmington, Campbell, Bernal & Bent, P.C. On May 23, 2016, this Court denied Plaintiffs' motion to compel complete discovery responses and document production because Defendant represented to the Court that its discovery responses were complete. ECF 68. Elhannon now renews that motion on the ground that recent deposition testimony demonstrates that Defendant's prior representations to this Court asserting complete discovery responses were false. ECF 95. In addition, both parties cross-moved for discovery sanctions. Id.; ECF 95 and 100. For the reasons described below, the Court grants Elhannon's renewed motion to compel in part, denies the parties' cross-motions for sanctions, and orders the parties to engage in further meet-and-confer efforts to resolve certain factual disputes.

         In its amended complaint, Elhannon alleges that between 2007 and 2014, Elhannon and Bartlett entered into a series of contracts calling for Bartlett to design and execute an integrated pest management program for Elhannon's entire tree nursery, which it called the “MoniTor” program. ECF 27. Elhannon allegedly relied on Bartlett's promised expertise and commitment to do whatever was necessary to properly protect its plants, and did not supervise or direct Bartlett's activities. In particular, it relied on representations made by Jeromy Gardner, a Bartlett employee in its Manchester, Vermont office, who later supervised the spraying work undertaken at Elhannon's nursery. Despite Gardner's representations and contractual promises, Bartlett alleges that Gardner directed Bartlett employee Jason Graham to underservice the nursery, leading to a large scale outbreak of disease and insects on its trees. In addition, Elhannon alleges that Graham, at Gardner's request, applied chemicals at Elhannon which were illegal under New York law in order to attempt to control an incipient outbreak. Graham was allegedly terminated after he refused to continue applying illegal chemicals, ostensibly because he would not support Graham's ineffective spraying program at Elhannon. Elhannon alleges that Bartlett had no intention of ever spraying the entire nursery or of fully following through on the misrepresentations it made to induce Elhannon to enter into the contract. It also asserts that Bartlett falsified its records to give the impression that it was performing more work at Elhannon than it actually did, and that it improperly billed Elhannon for work done for others. As a consequence of these failures, Elhannon faced a massive pest problem, and has had to destroy trees valued at several million dollars and to implement its own pest management program. Elhannon brings claims for breach of contract, negligence, negligent misrepresentation, fraud and intentional misrepresentation, fraud in the performance, and violations of New York's General Business Law concerning consumer fraud.

         Background on Discovery Requests

         (a) Outstanding document production

         Elhannon filed a Motion to Compel on February 15, 2016 seeking a more thorough production of the following categories of documents, which it asserts are responsive to outstanding discovery requests:

(1) Complete information on the Elhannon account from Bartlett's Electronic Landscape Manager (“ELM”) program, including printouts of all screens;
(2) Internal correspondence and emails pertaining to Elhannon;
(3) Internal analysis documents pertaining to Elhannon, including financial documents, estimates, and calculations of costs and profitability;
(4) Certain compensation and personnel file materials for the two key Bartlett employees (Graham and Gardner) on the Elhannon contracts; and
(5) Documents from Bartlett's other electronic systems (e.g., the NBS system).

         These categories are also the subject of the discussion at issue here. Once again, the parties vigorously dispute whether the Defendant has already produced all relevant discovery pertaining to each category.

         (1) Information from the ELM system

         Elhannon first asserts that two depositions of Bartlett employees -namely, Mr. Gardner and Mr. Andry -demonstrate that Bartlett failed to produce all screenshots from its ELM system concerning the company's relationship with Elhannon. In particular, in Mr. Andry's deposition, the Plaintiffs were able to view the ELM program “in real time with the Elhannon account loaded, ” and were able to discern that “many more information screens existed (and could easily and quickly be printed out) than Bartlett had previously argued, ” including “a wealth of information related to Bartlett's proposals and work orders.” ECF 95, p. 4-5. According to Elhannon, the information included in the system, evidenced during Mr. Andry's deposition, was “not included on any other documents produced to date by Bartlett.” Id. at p. 6. This evidence, Elhannon asserts, contradicts Mr. Gardner's prior representation to the Court that all information and screenshots from the ELM system had been produced. In addition, Mr. Gardner later admitted in his deposition that he did not search for these documents, but rather delegated the ELM search and screenshot collection to an assistant who did not know how to use the system.

         In its opposition, Defendant asserts that it was under no obligation to produce any additional screenshots of the ELM system. First, Bartlett argues that Plaintiffs did not request, and Bartlett did not purport to produce, “all screenshots.” Rather, Elhannon requested all documents related to the relationship between the parties, and Bartlett only produced the screenshots with static screens rather than ones with editable input fields. It also asserts that the information that Plaintiffs request in their motion -i.e. additional screenshots -would be duplicative of information already produced, because that information “was used to generate documents that were already produced.” Moreover, Bartlett argues that it satisfied its production obligations by permitting Plaintiffs to inspect the ELM system in person.

         In reply, Elhannon contends that it did request every single ELM screenshot, pointing the Court to Document Request numbers 5, 18, 39 and 42 and a letter dated December 22, 2015 which specifically asks for “a complete printout of the entire file, including all screens.” ECF 103, p. 2. It further asserts that the distinction between static and editable screens in the ELM system is inapposite, since both types of screens could demonstrably be printed out and produced. More importantly, it asserts that “the Andry deposition confirmed that there is information in the ELM that does not appear in any documents generated from the system.” Id. at 4. It argues that the screenshots are not merely another “form” of those documents produced by information in the system, because “each screenshot shows a different aspect of the Elhannon account and/or different information.” Id. at 3. Finally, Elhannon contends that its ability to inspect the ELM system during Mr. Andry's deposition did not rectify Bartlett's failure to produce documents.

         (2) Email Production

         In addition, Elhannon asserts that Bartlett previously misrepresented to the Court that it had produced “every email, company-wide, pertaining to the Plaintiffs in any way, ” when in reality its email searches were “haphazard, overly narrow, devoid of proper guidance by counsel, and unreliable to say the least.” ECF 95, p. 6, 9-10. For example, Elhannon points to the deposition testimony of Paul Fletcher, the Assistant Manager and later Manager of Bartlett's New England Division, and of Mr. Gardner, both of whom stated that they were not provided with search terms by counsel for their email searches, and neither of whom produced a substantial number of emails. Similarly, Elhannon alleges that the search terms used by Ms. Horton, the office administrator in Bartlett's Manchester, VT office, were too limited, and did not result in the production of the emails from Gardner to Elhannon that she testified about. Another Bartlett employee, Ms. Lindsay, made inconsistent statements about whether she had conducted email searches at all. Finally, Mr. Andry stated that he did not search for emails using Elhannon's Bartlett ID number or the pertinent work order numbers, which Bartlett witnesses suggested would be useful to identifying relevant documents.

         In response, Bartlett acknowledged that it “recently recovered a number of emails previously not produced due to a gap in the technology used to perform its earlier email searches.” ECF 101, p. 8. It states that the glitch was discovered on or about December 13, 2016, for reasons unrelated to Elhannon's discovery motions. Rather, “the discrepancy was the result of a limitation with the data storage system . . . that it began using in 2013, ” which did not reach archived emails in conducting a search of the database. Id. at 8-9. As a result, Bartlett had to directly access the computers of individual employees and conduct searches using remote access. ...


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