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

Response in Opposition to Motion

W.D. Tex.February 7, 2019

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION HUNT CONSTRUCTION GROUP, INC., Plaintiff, vs. COBB MECHANICAL CONTRACTORS, INC. and LIBERTY MUTUAL INSURANCE COMPANY, Defendants. § § § § § § § § § § § C.A. NO. 1:17-CV-00215-LY DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S RESPONSE IN OPPOSITION TO NON-PARTY AECOM’S MOTION TO QUASH DEFENDANT COBB’S SUBPOENA FOR DOCUMENTS Defendant / Cross-Plaintiff Cobb Mechanical Contractors, Inc. (“Cobb”) files this Response to the “Motion to Quash Defendant Cobb’s Subpoena for Documents” (“Motion”) (Rec. No. 167) filed by Non-Party Subpoena Respondent AECOM (“AECOM”). In support thereof, Cobb states as follows: I. INTRODUCTION / SUMMARY AECOM’s Motion seeks to quash a subpoena that Cobb served on Non-Party AECOM (the “Subpoena”), which included a request for documents. (See Mot. Ex. D). Because these requests seek information that is directly relevant to the claims and issues in this action, particularly those related to the claims brought against Cobb by AECOM’s indirect corporate subsidiary, Hunt; Cobb respectfully submits that the motion should be denied in its entirety. Despite its centrality to this litigation, AECOM contends that because the document requests are “functionally identical” to those served on its related company, it is “unduly burdensome” for it to respond to Cobb’s Subpoena. But it doesn’t matter that Cobb’s requests to Hunt are similar or even identical to those Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 1 of 10 2 in the Subpoena – what is important is what documents are swept up by those requests. Because it is a likely possibility that AECOM has documents in its possession, custody, or control responsive to these requests which Hunt does not, the necessity and appropriateness of the Subpoena becomes clear. Cobb must be allowed to take discovery related to its claims and defenses in this matter from persons who may possess relevant information. II. LEGAL STANDARD Rule 45 governs the issuance of subpoenas to non-parties and requires that the attorney or party “responsible for the issuance and service of a subpoena [to] take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” FED. R. CIV. P. 45(c)(1). The Rule gives the Court discretion to modify or quash the subpoena in the event it “subjects a person to undue burden.’ Id. at 45(c)(3)(A)(iv). The determination of a subpoena’s reasonableness requires a Court to balance its benefits and burdens by considering whether the information is necessary and unavailable from any other source. See Cmedia, LLC v. Lifekey Healthcare, LLC, 216 F.R.D. 387, 389 (N.D. Tex. 2003). Notably, “[t]he individual seeking to quash or modify must meet the heavy burden of establishing that compliance with the subpoena would be unreasonable or oppressive.” Hussey v. State Farm Lloyds Ins. Co., 216 F.R.D. 591, 596 (E.D. Tex. 2003) (emphasis added); see also Orchestrate HR, Inc. v. Trombetta, No. 3:13-CV-2110, 2014 WL 772859, *2 (N.D. Tex. 2014) (“The moving party has the burden of proof and must meet the heavy burden.”) “That person cannot rely on a mere assertion that compliance would be burdensome and onerous without showing the manner and extent of the burden and the injurious consequence insisting on compliance.” Wright and Miller, FED. PRAC. & PROC., Vol. 9A (1995). “Generally, modification of a subpoena is preferable to quashing it outright.” Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 2 of 10 3 III. FACTUAL BACKGROUND A. The Relevant Parties. Cobb is an experienced contractor for plumbing and mechanical systems, and a Defendant / Cross-Plaintiff herein. Cobb, in business for nearly fifty years, was contracted by Hunt to install the mechanical and plumbing systems in the Fairmont Hotel in Austin, Texas. Non-Party AECOM describes itself as the indirect corporate parent of Plaintiff / Cross-Defendant Hunt Construction Group, Inc. But prior to May 19, 2014, when Hunt was awarded the contract to construct the Fairmont Hotel in Austin, Texas for Manchester Financial Group, Hunt was in negotiations to sell its company to AECOM. In July 2014, a few short months after getting the contract for the Fairmont, AECOM’s purchase of Hunt was finalized. Less than a year later on March 17, 2015, Cobb and Hunt executed the Professional Services Agreement, then the Subcontract on July 20, 2015. Thus, for the entirety of Cobb’s involvement at the Fairmont, Hunt was owned by AECOM. B. Subpoena at Issue. On January 9, 2019, Cobb served the Subpoena upon AECOM, seeking documents related to the construction of the Fairmont Hotel in Austin, Texas. (Mot., Ex. A). On January 30, 2019, AECOM filed its Motion to Quash Defendant Cobb’s Subpoena for Documents. (Rec. No. 167). IV. ARGUMENT The Subpoena to AECOM seeks information that goes to the heart of the dispute at issue in this lawsuit. Importantly, the document requests are tailored to the Fairmont Project. Because Cobb’s particularized requests seek documents directly relevant to Cobb’s counterclaims and defenses in this case, and because AECOM has advanced no arguments demonstrating that a response to the Subpoena or a production of responsive documents would be unduly burdensome, AECOM’s Motion should be denied. Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 3 of 10 4 A. The Subpoena Seeks Relevant Information and Documents. Contrary to AECOM’s apparent relevance argument, the Subpoena and its scope are narrowly tailored to seek relevant information to the claims and defenses in this lawsuit consistent with Rule 26(b)(1) and Rule 45. Under Rule 26(b)(1), a party “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). “Relevancy is broadly construed, and a request for discovery should be considered if there is any possibility that the information sought may be relevant to the claim or defense of any party.” Collins v. Trans Union, LLC, No. 14-cv-742, 2015 WL 1932044, at *2 (D. Colo. Apr. 28, 2015). The documents Cobb seeks directly relate to Hunt’s claims in this matter and Cobb’s counter-claims and defenses. By way of background, the document requests substantially track Cobb’s previous document requests to Hunt regarding the construction of the Fairmont Hotel. This is by design: AECOM may be in possession of documents or communications related to the Fairmont Project which are not within Hunt’s possession, custody, or control and which are relevant to the issues before the Court. Cobb is not seeking to expand the scope of discovery, but rather, seeks to pull Hunt’s “indirect corporate parent” into the world of discovery requests which already exist in this matter. As the Court is aware, AECOM is not a random, disinterested third- party from which Cobb seeks discovery, but rather, is the “indirect corporate parent” of Hunt, by Hunt’s own admission. (See Mot., at 1). And AECOM has held that title since before Cobb ever set foot at the Fairmont. If that world of documents was already encompassed by Hunt’s production to Cobb thus far, AECOM could have indicated so in objections and responses. Or AECOM’s attorneys – the same attorneys which currently represent Hunt – could have attempted to confer with Cobb regarding the scope of the discovery requests in an effort to limit them. But AECOM made no such attempt. Instead, AECOM has submitted a Motion to Quash which attempts to argue that production is unduly burdensome for a host of (factually and legally incorrect) reasons. Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 4 of 10 5 Instead of conferring in an attempt to narrow the document requests, AECOM filed the Motion contending: “To the extent AECOM entities had involvement in the Project, that would be reflected in Hunt’s document production.” (Mot., p. 5). Notably, AECOM chose to rely on this assertion without any evidence whatsoever. Refusing to respond to the subpoena at all without a client affidavit or the like requires that the Court find AECOM has not met its burden. See McKinney/Pearl Rest. Partners, L.P. v. Metropolitan Life Ins. Co., 2016 WL 2609994, *7 (N.D. Tex. 2016) (“A party resisting discovery must show how the requested discovery was overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.”) (emphasis added) B. Cobb’s Subpoena is Not Facially Overbroad. As an initial matter, the requests in Cobb’s Subpoena are not “facially overbroad,” as they are particularized to the issues of the Fairmont Project. The Subpoena does not simply seek all documents related to Cobb or Hunt. See Nasufi v. King Cable, Inc., No. 3:15-CV-3273-B, *6, 2017 WL 3334110 (N.D. Tex. 2017); No. 4:17-MC-00056, Manookian v. Mervis, 2017 WL 3457063, at *2 (E.D. Tex. 2017). Because the Subpoena’s requests are directed to the Fairmont Project, it necessarily imputes a time period to the requests. The Subpoena does not extend to all documents about any party, anywhere, ever, but rather is specifically directed to the events at issue in this case. Given that complete quashing of subpoenas is generally disfavored (see Wiwa, 392 F.3d at 818), if the Court feels it necessary to modify the Subpoena to explicitly incorporate a time period, Cobb suggests that July 1, 2014 through the present is a reasonable time frame given that AECOM purchased Hunt around that time. See Edgefield Holdings v. Gilbert, No. 3:17-MC-74-N-BN, 2018 WL 1138516, *14 (N.D. Tex. 2018) (finding that 112 requests limited to the previous five years were limited and reasonable, and thus not facially overbroad). Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 5 of 10 6 C. AECOM Cannot Satisfy Its Heavy Burden of Establishing Undue Burden. AECOM has wholly failed to apprise the Court of why the requested production would be burdensome. Yet again, without any evidence put before the court, AECOM posits: “The burden on AECOM to review its files would be very substantial.” (Mot., p. 6). However, AECOM does not describe how many documents may be at issue. It does not describe how many e-mails may be swept up in Cobb’s requests. It does not describe why the efforts to produce these documents would indeed be unduly burdensome. And, in fact, if the documents encompassed by the Subpoena were so voluminous, it would have been a simple matter for AECOM to present that to the Court in its Motion. But it did not. Rather, the only argument set forth in the Motion to Quash to meet this “heavy burden” and establish that Cobb’s requests are unduly burdensome is that: “[t]he burden on AECOM to review its files would be very substantial.” Mot., at 6. This singular statement in support of AECOM’s motion bears no citation to any evidence 1 tending to establish that production would be factually unduly burdensome to AECOM. At best, it is a conclusory statement, and is insufficient to carry AECOM’s burden. See, e.g, Nasufi, 2017 WL 3334110 at *14 (denying motion to quash because movant’s undue burden objections were “conclusory and unsupported by specific facts as to the nature and extent of any burden in complying” with the subpoena); In re Subpoena of AmeriCredit Fin. Servs., Inc., No. 3-08-MC-072-L, 2008 WL 2594767, *2 (N.D. Tex. 2008) (finding that a conclusory assertion by counsel, “unsupported by any evidence,” was insufficient to establish the movant’s right to an order quashing production). 1 The Motion to Quash references an affidavit of C. Steven Tomashefsky, allegedly attached to the motion as Exhibit “B.” (Dkt. No. 167 at 2). But no Exhibit “B” appears attached to the Motion to Quash, and no Exhibit “B” is apparent from the Court’s docket report. Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 6 of 10 7 D. Cobb is Not Seeking to Circumvent any Discovery Agreements. Cobb is not seeking to circumvent any discovery agreements with Hunt in the underlying lawsuit. The discovery sought herein is direct to documents in AECOM’s possession, custody, or control. AECOM was not party to any agreement with Cobb, and had no responsibility under any of Cobb’s requests for production to Hunt to produce any materials. What Cobb seeks to do via its Subpoena is ensure that every document relevant to Cobb’s claims and defenses in this matter that is within AECOM’s possession, custody, or control is produced. Cobb has no such guarantee from its requests for production propounded upon Hunt. Further, if AECOM wished to limit the number of custodians, as Hunt and Cobb agreed to do in their discovery between one another, AECOM’s lawyers could have presented such an arrangement to Cobb. In fact, AECOM’s counsel – again, Hunt’s counsel for all intents and purposes – failed to adequately reach out to Cobb in advance of the Subpoena’s production date to discuss Hunt’s potential production. Instead, at the eleventh hour, AECOM filed the Motion. E. The Subpoena Seeks Relevant Information and Availability Elsewhere is Immaterial to the Analysis. As explained in detail above, the information that Cobb seeks is directly relevant to its claims and defenses. See supra Section IV(A). And further, AECOM “may not avoid a subpoena by saying that the evidence sought from [it] is obtainable from another.” Covey Oil Co. v. Cont’l Oil Co., 340 F.2d 993, 998 (10th Cir. 1965), indirectly overruled on other grounds by United States v. Ryan, 402 U.S. 530 (1971). Of course, Cobb has already pursued the requested information from Hunt throughout the course of merits discovery. Based on that discovery, Cobb determined that it Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 7 of 10 8 was necessary to seek documents that may be solely within AECOM’s possession, custody, or control, and not simply available to Hunt as AECOM’s indirect subsidiary. For that reason, Cobb now seeks responsive information from AECOM to respond to Hunt’s claims. And AECOM’s has admitted that there are documents relevant to Cobb’s claims and defenses which are within its possession, custody, and control, as AECOM states in the Motion that e-mails responsive to Cobb’s requests to Hunt “were located on servers maintained by AECOM.” (Dkt. No. 167 at 3). Without having AECOM produce in response to Cobb’s Subpoena, Cobb has no assurance that all of the responsive documents AECOM has in its possession, custody, or control were a part of any of Hunt’s productions. It is necessary and vital to Cobb’s case to have responsive documents from AECOM, and not merely the vague, unsubstantiated, and unverified assertion that it is probable AECOM documents were included in Hunt’s productions. V. CONCLUSION For at least the foregoing reasons, Cobb Mechanical Contractors, Inc. respectfully requests that the Court deny AECOM’s Motion. Cobb further requests any and all other relief to which the Court may find it justly entitled. Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 8 of 10 9 Dated: February 7, 2019 Respectfully submitted, /s/ Joseph P. Griffith Michael L. Burnett Greenberg Traurig, LLP State Bar No. 03428700 Rene Trevino State Bar No. 24051447 1000 Louisiana Street, Suite 1700 Houston, TX 77002 Telephone: (713) 374-3580 Facsimile: (713) 374-3505 burnettm@gtlaw.com trevinor@gtlaw.com Joseph P. Griffith Greenberg Traurig, LLP State Bar No. 24045982 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 Telephone: (214) 665-3666 Facsimile: (214) 665-5966 griffithj@gtlaw.com ATTORNEYS FOR DEFENDANT COBB MECHANICAL CONTRACTORS, INC. Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 9 of 10 10 CERTIFICATE OF SERVICE I hereby certify that this foregoing filing was electronically filed with the Court and that counsel of record, who are deemed to have consented to electronic service in the above-referenced case, are being served this 7th day of February 2019, with a copy of the above-document via the Court’s CM/ECF System. /s/ Joseph P. Griffith Joseph P. Griffith Case 1:17-cv-00215-LY Document 170 Filed 02/07/19 Page 10 of 10