United States District Court, D. Vermont
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. ...