Hunt Construction Group v. Cobb Mechanical Contractors, Inc. et al

MOTION to Quash

W.D. Tex.January 30, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION HUNT CONSTRUCTION GROUP, INC., ) an Indiana corporation, ) ) Plaintiff, ) Case No. 1:CV-17-215-LY ) v. ) ) COBB MECHANICAL CONTRACTORS, INC., ) a Colorado corporation, ) ) and ) ) LIBERTY MUTUAL INSURANCE COMPANY, ) a Massachusetts corporation, ) ) Defendants. ) NON-PARTY AECOM’S MOTION TO QUASH DEFENDANT COBB’S SUBPOENA FOR DOCUMENTS Non-party AECOM, pursuant to Fed. R. Civ. P. 45(d)(3), respectfully requests entry of an order quashing the subpoena served by defendant Cobb Mechanical Contractors, Inc. (“Cobb”) on AECOM on January 8, 2019 (the “Subpoena”), on grounds that the 115 document requests contained therein are unduly burdensome, particularly under the unusual circumstances of the Subpoena. AECOM is the indirect corporate parent of the Plaintiff, Hunt Construction Group, Inc. (“Hunt”). The Subpoena’s document requests are functionally identical to document requests Cobb propounded on Hunt in this litigation starting more than a year ago. In the course of document production, Hunt and Cobb agreed to a discovery protocol which limited discovery. By issuing a subpoena late in the course of litigation on AECOM, Cobb seeks to improperly and unfairly sidestep its document production agreements with Hunt, at AECOM’s burden. A copy of Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 1 of 8 2 the Subpoena is attached as Exhibit “A.” In support of its Motion, AECOM attaches the affidavit of C. Steven Tomashefsky, counsel for Hunt (“Hunt”), as Exhibit “B,” and states as follows: FACTS 1. Cobb, a plumbing and mechanical subcontractor, entered into a July 20, 2015 subcontract (the “Subcontract”) with Hunt, the construction manager for a project to build a new Fairmont hotel in Austin (the “Hotel Project”). (See generally, Cobb’s Second Amended Counterclaim, ¶¶ 3-7.) Cobb’s performance of the Subcontract is at issue in this lawsuit. Hunt’s connection to AECOM was obvious from the Subcontract itself, because the Hunt logo that appears in the upper left corner of each page of the Subcontract included the words “An AECOM Company.” (Dkt. No. 130-4 and 130-5, exhibit to Plaintiff’s Response to defendant Liberty Mutual Insurance Co.’s Motion for Summary Judgment.) AECOM is a global engineering and construction company. (See https://www.aecom.com). 2. Long before Cobb served the Subpoena on AECOM, Cobb propounded six sets of document requests on Hunt pursuant to Fed. R. Civ. P. 34, totaling 139 individual requests. (Cobb’s previous document requests are attached as Group Exhibit “C1” through “C6” hereto.) Each of the 115 document requests set forth in Cobb’s subpoena to AECOM has a corresponding request in Cobb’s earlier set of document requests to Hunt, with minor modifications to reflect that the recipient of the requests now is AECOM rather than Hunt. The correlation between requests set forth in the Subpoena and set forth in Cobb’s previous document requests to Hunt is as follows: Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 2 of 8 3 115 Requests in Subpoena to AECOM Corresponding Earlier Document Requests to Hunt Nos. 1-78 First Set (Nov. 1, 2017) Nos. 1-51, 53-70, 79-81, 84-86, 91-93 Nos. 79-95 Second Set (April 26, 2018) Nos. 8, 10, 17-25 Nos. 96-110 Third Set (July 9, 2018) Nos. 1-15 Nos. 111-114 Fifth Set (Nov. 7, 2018) Nos. 1-4 No. 115 Sixth Set (Nov. 15, 2018) No. 1 3. Cobb’s document requests to Hunt were very broad, and responding in full would have required Hunt to gather and review the emails of an impractically large number of persons associated with Hunt who had at least some involvement in the Hotel Project. (See, January 30, 2019 Affidavit of C. Steven Tomashefsky ¶ 3.) By the same token, if Cobb had to produce each email responsive to Hunt’s requests, it would have needed to gather and review emails from a large number of persons associated with Cobb who had some involvement with the Hotel Project. 4. To lessen their respective burdens while still obtaining the most relevant documents, Hunt and Cobb therefore agreed not to seek production of emails from every person with some connection to the Hotel Project. Instead, they agreed to restrict production to emails sent or received by 12 identified “custodians” (with Hunt later agreeing, at Cobb’s request, to add one more). (Id. at ¶ 4.) Cobb drafted the list of custodians whose emails it wished to obtain from Hunt. (Id.) 5. Although Cobb did not expressly ask Hunt to produce documents maintained by AECOM rather than Hunt, Hunt did not refuse to gather and produce documents for that reason. Indeed, the emails sent or received by most of the Hunt custodians identified by Cobb were located on servers maintained by AECOM. (Id. at ¶¶ 6-7.) 6. Cobb’s subpoena to AECOM ignores the parties’ agreement to produce emails sent to and by a limited number of custodians. Rather, if AECOM is required to respond to Cobb’s Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 3 of 8 4 subpoena, then AECOM will need to search email files of persons additional to those Hunt and Cobb agreed to nominate as custodians. The universe of documents to review for production will expand for Hunt, but not for Cobb. In addition to being patently unfair, AECOM believes such an exercise is unlikely to yield any important documents for Cobb to use in its trial with Hunt, including because: (a) Hunt already produced approximately 500,000 documents, amounting to approximately 2 million pages. (Id. at ¶ 5.) Those included numerous documents found in the Hotel Project files maintained at the project site. (Id. at ¶ 7.) Responsive documents on that server were not withheld on the basis that they were maintained by an AECOM entity other than Hunt. (Id. at ¶ 6-7.) (b) Cobb’s requests to Hunt were very broad and included Hunt’s internal communications, which would include communications between Hunt and AECOM or other subsidiaries, if any. As one example, Request No. 13 of Cobb’s November 1, 2017 first set of requests for production included: All internal communications concerning: (a) The commencement of construction on the Project; (b) Project scheduling and progress; (c) the mechanical and plumbing work on the Project; (d) Cobb’s partial termination; (e) The selection of a replacement subcontractor Cobb’s partial termination; (f) The use of a time and materials contract for Brandt’s work; (g) Brandt’s work on the Project; (h) Brandt’s billing on the Project; (i) Any construction issues on the Project; (j) The supply of permanent power to the Project; (k) Your Termination Letter; (l) Any inspections and approvals of Cobb’s work; (m) All delay notices, default letters, acceleration notifications, or similar communications that You sent to any subcontractor on the Project. (n) Any delay encountered on the Project; (o) Cobb’s September 14, 2017 Notice of Lien Claim; (p) any actual or potential claims by the Owner against Hunt; and/or (q) Any assertions that Your scheduling on the project was inappropriate, insufficient, not reflective of actual conditions, or improper in any regard (by way of example, complaints regarding Your creating the original project schedule; failing to include proper Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 4 of 8 5 durations, sequencing or logic; reductions of durations or resequencing of activities, etc.)1 To the extent AECOM entities had involvement in the Project, that would be reflected in Hunt’s document production. ARGUMENT 7. Fed R. Civ. P. 45(d)(3)(A) provides in relevant part: “On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; . . . or (iv) subjects a person to undue burden.” “To determine whether the subpoena presents an undue burden, [the Court] consider[s] the following factors: (1) relevance of the information requested; (2) the need of the party for the documents, (3) the breadth of the document request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed. MetroPCS v. Thomas, 327 F.R.D. 600, 609 (N.D. Tex. 2018), quoting Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). “Whether a subpoena subjects a witness to undue burden generally raises a question of the subpoena’s reasonableness, which ‘requires a court to balance the interest served by demanding compliance with the subpoena against the interests furthered by quashing it.’” MetroPCS, 327 F.R.D at 609, citing 9A Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 2463 (2d ed. 1995). “[T]his balance of the subpoena’s benefits and burdens calls upon the court to consider whether the information is necessary and unavailable from any other source.” Id. Further, the Court may find that a subpoena presents an undue burden when the subpoena facially is overbroad. MetroPCS at 610, citing Wiwa, 392 F.3d at 818. 1 Request No. 13 of Cobb’s Subpoena contains a functionally identical request, except the “You” was changed to “You and Hunt” to reflect that AECOM is the recipient. Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 5 of 8 6 8. Cobb’s Subpoena lacks “reasonableness,” and the “interests furthered by quashing it” are great, because the Subpoena is an improper attempt by Cobb to dodge its much earlier agreement with Hunt to limit the universe of emails subject to production to those sent or received by an agreed list of specific custodians. Such pre-production agreements are crucial to the modern discovery process and should be given effect. A party should not be allowed, especially late in the proceedings, to circumvent agreed discovery limits by repackaging its previous document requests to a party as a new subpoena to that parties’ parent corporation. 9. The other factors for determining whether a subpoena is unduly burdensome also weigh in favor of quashing the Subpoena. Cobb’s requests to AECOM are extremely broad, covering roughly the same scope as Cobb’s document requests to Hunt. They are not limited as to custodians or time. The burden on AECOM to review its files would be very substantial. 10. On the other side of the ledger, the lack of importance Cobb attaches to the documents it seeks is obvious from Cobb’s behavior. Cobb was able to identify and articulate the documents it wanted from Hunt—the same it now requests from AECOM—starting on November 1, 2017, when it submitted its first set of document requests. Cobb neither asked Hunt to produce documents in AECOM’s care, custody or control, nor served a subpoena on AECOM, although it knew Hunt was “an AECOM company.” This is not a case of Cobb acting in a dilatory manner; it was reasonable for Cobb not to seek AECOM documents because it was Hunt, not its parent, that executed the Hotel Project. WHEREFORE, non-party AECOM respectfully requests that this Court enter an Order quashing Defendant Cobb’s Subpoena of January 8, 2019. Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 6 of 8 7 January 30, 2019 Respectfully submitted, AECOM By: _/s/ Casey Low_____________________ Casey Low Joshua T. Wackerly (admitted pro hac vice) PILLSBURY WINTHROP SHAW PITTMAN LLP 401 Congress Avenue, Suite 1700 Austin, Texas 78701 (512) 580-9616 casey.low@pillsburylaw.com joshua.wackerly@pillsburylaw.com Of counsel: Steven G.M. Stein (admitted pro hac vice) C. Steven Tomashefsky (admitted pro hac vice) Thaddeus C. Baria (admitted pro hac vice) Peter J. Bedard (admitted pro hac vice) Raymond M. Krauze (admitted pro hac vice) STEIN RAY LLP 222 West Adams St., Suite 1800 Chicago, Illinois 60606 (312) 641-3700 sstein@steinraylaw.com stomashefsky@steinraylaw.com tbaria@steinraylaw.com pbedard@steinraylaw.com rkrauze@steinraylaw.com Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 7 of 8 8 CERTIFICATE OF CONFERENCE I hereby certify as counsel for non-party AECOM that I understand co-counsel Thaddeus Baria, (who is not admitted to the U.S. Court for the Western District of Texas and intends to seek admittance pro hac vice) on January 29, 2019 contacted counsel for defendant Cobb Mechanical Contractors, Inc. and inquired as to whether Cobb would agree to withdraw its Subpoena to AECOM and Cobb and has not agreed to do so. By: _/s/ Casey Low_____________________ Casey Low CERTIFICATE OF SERVICE I hereby certify that on January 30, 2010, this Non-Party AECOM’s Motion to Quash Defendant Cobb’s Subpoena for Documents was served via email to all of counsel of record listed below: Michael L. Burnett Rene Trevino Greenberg Traurig, LLC 1000 Louisiana St. Suite 1700 Houston, TX 77002 burnettm@gtlaw.com brownpa@gtlaw.com trevinor@gtlaw.com Counsel for Cobb Mechanical Contractors, Inc. Keith A. Langley Trevor “Max” Langley Langley LLP 1301 Solana Blvd. Building 1, Suite 1545 Westlake, TX 76262 klangley@l-llp.com mlangley@l-llp.cpm Counsel for Liberty Mutual Insurance Co. By: _/s/ Casey Low_____________________ Casey Low Case 1:17-cv-00215-LY Document 167 Filed 01/30/19 Page 8 of 8