UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRICKLAYERS PENSION

TRUST FUNDMETROPOLITAN AREA, CIVIL ACTION NO. 09-cv-11290

et al.,

Plaintiffs,

 vs. DISTRICT JUDGE PATRICK J. DUGGAN

EVERLAST MASONRY, MAGISTRATE JUDGE MONA K. MAJZOUB

INC., et al.,

Defendant.

 /

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’

MOTION TO COMPEL DISCOVERY (DOCKET NO. 23)

This matter comes before the Court on Plaintiffs’ Motion to Compel Discovery filed on

September 16, 2009. (Docket no. 23). Defendants did not file a response. The parties filed an

Amended Joint Statement Of Resolved And Unresolved Issues Regarding Discovery With Respect

To Defendant DRKK Development, LLC on November 9, 2009. (Docket no. 31). The parties filed

an Amended Joint Statement of Resolved And Unresolved Issues Regarding Discovery With

Respect to Defendant Everlast Masonry, Inc., on November 10, 2009. (Docket no. 32). This matter

has been referred to the undersigned for decision pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket no.

24). The Court disposes with oral argument on this Motion. E.D. Mich. LR 7.1(e). The matter is

now ready for ruling.

Plaintiffs served each of the two Defendants with document requests on July 9, 2009. 

(Docket no. 23-3, 23-4). Plaintiffs agreed to two extensions of time to respond, first to August 24,

2009, then to September 4, 2009. (Docket no. 23). Defendants produced written responses on

September 8, 2009. (Docket nos. 23-5, 23-6). Plaintiffs ask the court to compel access to the

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requested records and order Defendants to pay attorney fees and costs incurred in bringing this

motion. (Docket no. 23). According to the Joint Statements the following issues remain: As to

Defendant DRKK Development (DRKK) Request to Produce Nos. 1 and 9(A); as to Defendant

Everlast Masonry, Inc.(Everlast), Request to Produce No. 11; and as to both Defendants, redacted

information on financial documents produced by Defendants. 

A. The Requests At Issue Are Relevant

Plaintiffs may "obtain discovery of any non-privileged matter that is relevant to any party's

claim or defense," and "[r]elevant information need not be admissible at the trial if the discovery

appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P.

26(b)(1). Despite a few boilerplate objections by Defendants to some of the Requests as "irrelevant"

all of the requests at issue are relevant to the issue of whether the Defendant companies are alter

egos or otherwise one and the same. To the extent that either Defendant objects that Plaintiffs'

Requests are overbroad, oppressive or harassing, they have provided no specific information to

support the objections and the Court finds that the boilerplate objections are without merit.

B. Defendants' Responses That They Are In The Process of Obtaining The Documents

The issue with Defendant DRKK's responses to Request to Produce No. 1 and 9(A) and

Defendant Everlast's response to Request No. 11 arises from their non-committal written responses

indicating that each Defendant is still attempting to procure the responsive documents and will

produce them when they are available, without providing further information regarding their status. 

Plaintiffs may serve a request to produce "items in the responding party's possession,

custody, or control." Fed. R. Civ. P. 34(a)(1). "The word ‘control’ is to be broadly construed. A

party controls documents that it has the right, authority, or ability to obtain upon demand." Scott

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v. AREX, Inc., 124 F.R.D. 39, 41 (D. Conn. 1989). Defendants' responses are insufficient. 

Defendants have already had far more time to produce the documents than the thirty days allowed

pursuant to Rule 34(b)(2)(A), Fed. R. Civ. P. The Court will order each Defendant to produce all

responsive documents within its possession, custody or control by a date certain and to amend each

of the responses to state that it has produced all of the responsive documents within its possession,

custody or control. In light of the ambiguity of the Defendants' responses as to whether or not

documents exist and what steps were or are being taken to identify and procure them, the Court will

also order Defendants' counsel to each produce an affidavit as set forth below stating what steps

were taken to identify, locate and produce the responsive documents, including listing dates and

places where documents were sought. 

C. Production of Redacted Documents

Plaintiffs argue that both Defendants have produced one or more redacted documents in their

productions of financial documents in response to Request To Produce No. 1. Plaintiffs argue that

no privilege applies and neither Defendant produced a privilege log or otherwise complied with Rule

26(b)(5), Fed. R. Civ. P. Plaintiffs characterize the information Defendant Everlast redacted as

dollar amounts and descriptions of expenses related to legal fees. In the Joint Statements Defendant

Everlast argues that the redacted information is irrelevant. Plaintiffs characterize the information

Defendant DRKK redacted as the name of a recipient for a check that Defendant argues was for

legal fees. Neither Defendant raised any objections in its written responses to Plaintiffs’ Document

Request and neither Defendant filed a response to Plaintiffs’ motion. 

"As a general rule, failure to object to discovery requests within the thirty days provided by

Rules 33 and 34 'constitutes a waiver of any objections.'" Carfagno v. Jackson Nat’l Life Ins., 2001

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U.S. Dist. LEXIS 1768 *3 (W.D. Mich. 2001)(no exception for work product and attorney-client

material under the waiver). The requested information and documents, including the redacted name

of the recipient of a legal fees check and the dollar amounts and descriptions of expenses, are

relevant to the issue of whether the Defendants are alter-egos. See generally N.L.R.B. v. Midwest

Precision Heating and Cooling, Inc., 408 F.3d 450, 459 (8th Cir. 2005) (The court noted in its alterego analysis that Midwest Air Conditioning "still uses the same accountant, lawyer, and payroll

provider that Precision used."). Defendants Everlast and DRKK waived any objections or privilege,

failed to produce a privilege log and did not otherwise move for protection of the requested material. 

The Court will order Defendants to produce all responsive documents in full, without redaction. The

Court will deny Plaintiffs' request for attorneys fees and costs. Fed. R. Civ. P. 37(5)(A)(ii), (iii).

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Discovery (docket no.

23) is GRANTED in part and on or before November 30, 2009 Defendant DRKK will produce all

documents responsive to Request to Produce Nos. 1 and 9(A) in full without redaction and will

amend its written responses to the same to state whether it has produced all responsive documents

within its possession, custody or control and Defendant Everlast will produce all documents

responsive to Request to Produce Nos. 1 and 11 in full without redaction and will amend its written

responses to the same to state whether it has produced all responsive documents within its

possession, custody or control. 

IT IS FURTHER ORDERED that to the extent that either Defendant responds that it has

not produced all responsive documents within its possession, custody or control, counsel for that

Defendant will serve with its amended Responses an affidavit setting forth the steps taken to identify

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and procure the remaining responsive documents, including the time, manner and place(s) where

documents were sought. 

IT IS FURTHER ORDERED that Plaintiffs’ request for attorneys fees and costs is denied. 

Fed. R. Civ. P. 37(a)(5)(A)(ii) and (iii). 

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of ten days from the date of this

Order within which to file any written appeal to the District Judge as may be permissible under 28

U.S.C. § 636(b)(1).

Dated: November 16, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Order was served upon Counsel of Record on this date.

Dated: November 16, 2009 s/ Lisa C. Bartlett 

Case Manager

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