UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHIGAN BAC HEALTH CARE FUND et

al.,

Plaintiffs,

v.

HICKS MASONRY COMPANY, LLC et al.,

Defendants.

 /

Case No. 15-cv-10959

HONORABLE VICTORIA A. ROBERTS

ORDER REGARDING DISCOVERY (ECF Nos. 27, 32)

Before the Court are two motions concerning discovery: (1) Non-Party Movant H.

Hicks & Company, Inc.’s Motion to Quash Subpoena and for Protective Order (ECF No.

27); and (2) A joint motion by Defendants Hicks Masonry Company, LLC and Michigan

Metro Masonry, LLC for a Protective Order to Adjourn Deposition Dates (ECF No. 32). 

On June 15, 2016, the Court held a telephone status conference with counsel on

the record. Attending were: Megan Boelstler and Christopher Legghio, on behalf of

Plaintiffs Michigan BAC Health Care Fund, Michigan BAC Pension Fund, Michigan BAC

Apprenticeship and Training Fund, Bricklayers & Trowel Trades International Pension

Fund, and International Masonry Institute; Lionel Bashore, on behalf of Defendants

Hicks Masonry Company, LLC and Michigan Metro Masonry, LLC; and David Fraser, on

behalf of non-party H. Hicks & Company, Inc.

Non-party H. Hicks & Company, Inc.’s Motion to Quash is GRANTED. As written,

Plaintiff’s discovery requests are not narrowly tailored to the issues of the case; the

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requests are likely to yield voluminous records, the majority of which appear to lack

relevance. The Court requested and received via email from Mr. Fraser, on behalf of

Hicks & Company, a proposed alternative to what may very well be a burdensome

discovery request by Plaintiffs. Principally, his offer to Plaintiffs states:

 “I repeat my prior position that at the requesting party's expense, we will

produce all documents in my client's possession related to masonry [and]

related to work as defined by the union agreement as well as any

documents showing crossover between Hicks Construction and any

named Defendant.”

The Court finds Hicks & Company’s proposal reasonable: it provides Plaintiffs

with substantive documents likely to advance their case while not requiring Hicks &

Company to engage in an expensive production of an estimated 50,000 documents.

Hicks & Company is to produce documents as outlined in its email to Plaintiffs. Further,

Plaintiffs are free to propound additional requests for documents and additional

interrogatories, based on Mr. Hicks’ deposition answers which may suggest the named

Defendants and Hicks & Company are alter ego companies.

The cost-shifting provision suggested by Hicks & Company will not, however, be

ordered at this juncture. The Court is aware that Hicks & Company is not presently a

party and that under FED. R. CIV. P. 45(d)(2)(B)(ii), an order compelling compliance with

a subpoena in discovery must protect a person who is neither a party nor a party's

officer from significant expense resulting from compliance. Under the discretion afforded

the Court under Rules 26 and 45 of the Federal Rules of Civil Procedure, the Court may

limit or strike proposed discovery, and it may shift the costs incurred by a non-party in

complying with the discovery request. The Court has not yet been made aware of the

anticipated cost of compliance. Moreover, depending upon the documents obtained, it

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might emerge that Hicks & Company is not a non-party but rather an alter ego of a

party. Thus, the Court cannot make a final decision on cost shifting at this point.

Plaintiffs are required to tailor their proposed requests so as to minimize the expense

incurred. Hicks & Company is responsible to incur the expenses related to the planned

production, but the Court will revisit costs upon the completion of production as it deems

necessary.

For the reasons stated on the record, Defendants’ Motion for a Protective Order

to Adjourn Deposition Dates is GRANTED. The Court finds the dispute concerning

rescheduling Mr. Hicks’ deposition moot and grants the parties 30 additional days of

discovery, resulting in a discovery cutoff date of July 29, 2016. This date may change

depending on outstanding discovery. The Courts sets a telephone status conference for

Tuesday, August 9, 2016, at 3:30 p.m. to discuss.

IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: June 22, 2016

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

June 22, 2016.

s/Linda Vertriest 

Deputy Clerk

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