United States District Court, D. Utah, Central Division
VOX MARKETING GROUP, LLC, a Utah limited liability company, Plaintiff,
PRODIGY PROMOS L.C., a Utah limited liability company; et al., Defendants. PRODIGY PROMOS L.C., a Utah limited liability company, Counterclaim Plaintiff,
VOX MARKETING GROUP, LLC, a Utah limited liability company; et al., Counterclaim Defendants.
C. Nielson, Jr. District Judge.
MEMORANDUM DECISION AND ORDER
M. Warner Chief Magistrate Judge.
case was referred to Chief Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). Before the court
is Defendants Prodigy Promos, L.C.; Jason Marsh; Jon Priday;
Tyler Fredrickson; Eric Oldson; Spencer Oldson; and Michael
Perley's (collectively, “Prodigy Defendants”)
motion to compel. The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to Civil
Rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will decide
the motion on the basis of the written memoranda.
See DUCivR 7-1(f).
initial matter, the court notes that the Prodigy
Defendants' motion does not comply with the short form
discovery motion procedure set forth in Civil Rule 37-1 of
the Rules of Practice for the United States District Court
for the District of Utah. That rule, which governs any
discovery disputes arising under Rules 26-37 and 45 of the
Federal Rules of Civil Procedure, requires a party to file a
short form discovery motion to have a discovery dispute
resolved by court order. See DUCivR 37-1(a)(3). Any
such motion may not exceed 500 words. See id. The
Prodigy Defendants' motion far exceeds that word-count
limit. Although the court will consider the Prodigy
Defendants' motion in this instance, they are directed to
strictly comply with Civil Rule 37-1 for any future discovery
addressing the above-referenced motion, the court sets forth
the following general legal standards governing discovery.
Rule 26(b)(1) provides:
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, considering 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
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The district court has broad
discretion over the control of discovery, and [the Tenth
Circuit] will not set aside discovery rulings absent an abuse
of that discretion.” Sec. & Exch. Comm'n v.
Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271
(10th Cir. 2010) (quotations and citations omitted).
their motion, the Prodigy Defendants seek an order compelling
Plaintiff and Counterclaim Defendant Vox Marketing Group, LLC
(“Vox ”) to respond to the Prodigy
Defendants' requests for production no. 19-21
(collectively, “Requests No. 19-21”). Requests
No. 19-21 generally seek production of certain source code
and configuration files (“Code”) from Vox . Vox
objected to Requests No. 19-21 and opposes the Prodigy
to serving the Requests, the Prodigy Defendants served
request for production no. 18 (“Request No. 18”),
which also generally sought production of the Code. Vox
initially objected to Request No. 18, but the parties
eventually reached an agreement that allowed the Prodigy
Defendants' expert, Jeremy Cloward
(“Cloward”), to inspect the Code in lieu of
production of the Code. Cloward conducted the inspection of
the Code and, according to Vox, one of its representatives
was present during the inspection to answer Cloward's
questions and assist with the inspection. Vox also contends
that it provided Cloward with unlimited time to inspect the
code and did not hamper or interfere with the inspection.
months later, the Prodigy Defendants raised with Vox the
issue of a follow-up inspection of the Code. The parties
engaged in some discussions about a follow-up inspection, but
it appears that such an inspection never took place.
Subsequently, the Prodigy Defendants served Requests No.
19-21 on Vox .
response to the Prodigy Defendants' motion, Vox argues
that it should not be required to respond to Requests No.
19-21 because it has already satisfied its production
obligations related to the Code by way of the parties'
agreement on Request No. 18. The court agrees. As noted
above, the Prodigy Defendants agreed that inspection of the
Code in lieu of production would be sufficiently responsive
to Request No. 18. The court concludes that the Prodigy
Defendants cannot now demand another form of production of
the Code through Requests No. 19-21. Requiring the Vox
Parties to make a second form of production of the same
information would violate Rule 34(b)(2)(E)(iii) of the
Federal Rules of Civil Procedure, which provides that
“[a] party need not produce the same electronically
stored information in more than one form.” See
Fed. R. Civ. P. 34(b)(2)(E)(iii). By reaching the agreement
with respect to Request No. 18, the Prodigy Defendants
forfeited their right to demand production in a different
form. See, e.g., Anderson Living Tr. v. WPX Energy Prod.,
LLC, 298 F.R.D. 514, 527 (D.N.M. 2014).
those reasons, the Prodigy Defendants' motion ...