In Rouse v. H.B. Fuller Co., No. 22-CV-02173 (JMB/JFD) (D. Minn. Dec. 4, 2024), Minnesota Magistrate Judge John F. Docherty denied in part the plaintiff’s motion to compel production, rejecting several requests for production (RFPs) because they were in conflict with the Court’s previous rulings that: 1) “material more recent than April 1, 2023 is not discoverable except for specific, focused requests”, and 2) “’rolling discovery’ will not be permitted, no matter how a request for it is framed”.
Case Discussion and Judge’s Ruling
In this case involving claims of breach of implied warranties of fitness and merchantability (among other claims) over a grout product sold by the defendant, the plaintiff’s filed a motion to compel over nine RFPs that they submitted, including:
“159. All Documents and Communications responsive to or collected by the ESI Protocol from April 1, 2023 to present.”
“160. All Documents and Communications referring to, or relating to, the Products.”
“162. All Documents constituting, referring to, [or] relating to summaries, trends, reports, tracking, or analyzing claims or cases initiated, logged, or otherwise reported regarding the Products from 2009 to the present.”
“163. All Documents and Communications constituting, referring to, or relating to Your testing of the Products from 2009 to the present.”
“166. All Documents pertaining to the sale of any H.B. Fuller stock by members of Your Executive Management Team or Board of Directors, as identified on the Website, after August 12, 2022.”
Emphasis added by the Court in each above case. RFP 167 also sought “all operative versions or ‘revisions’ of the work instructions, standard operating procedures/SOPs, or other procedures from 2009 to the present”, relating to various aspects of the products.
Beginning his analysis, Judge Docherty stated: “The Court will address each in turn, but the Court must first describe what it has decided to this point because the majority of the discovery requests at issue in this motion are seriously out of compliance with the Court’s earlier rulings.”
Continuing, he said: “The Court was chiefly guided by two principles when deciding discovery disputes in this case. First, material more recent than April 1, 2023 is not discoverable except for specific, focused requests. Second, this temporal limit may not be evaded by seeking ‘rolling discovery,’ that is, discovery requests of a general nature seeking information more recent than April 1, 2023, but doing so in the guise of requesting updates to general discovery requests that call for material before that date.” He also added: “This Court found the appropriate temporal scope of discovery in this case to be from January 1, 2016 to April 1, 2023… Second, as the Court has stated multiple times, ‘rolling discovery’ will not be permitted, no matter how a request for it is framed.”
Judge Docherty did note in a footnote that “This Court’s order setting the window of time for which material is discoverable has been objected to by Plaintiffs and is under review by the District Judge, the Hon. Jeffrey Bryan.”
Judge Docherty ruled in denying specific RFPs, as follows:
- “There could not be a more paradigmatic example of the ‘rolling discovery’ the Court forbade in August than RFP 159… There is only one reasonable interpretation of the Court’s previous order: that Plaintiffs may request documents created beyond April 2023 if the request is focused to resolve specific outstanding questions. RFP 159 meets neither of these requirements. It lacks specificity in the types of documents it requests, and it specifically requests only information beyond April 1, 2023.”
- “Turning to RFP 160, the Court finds that in addition to partaking in all of the flaws identified in RFP 159, RFP 160 is also facially overbroad”.
- “RFP 167 specifically seeks information both before January 1, 2016 and beyond April 1, 2023… There is no way to interpret the text of RFP 167 as focused, and therefore, Plaintiffs’ motion as to that request is denied.”
- “Plaintiffs’ motion as to RFP 162 is denied for the same reason as RFP 167. It explicitly seeks information beyond April 1, 2023 and is not focused.”
Judge Docherty granted in part or deferred ruling on other RFPs.
Hat tip to Michael Berman for the heads up on this case due to his previous coverage of it.
So, what do you think? Are you surprised that the Court ruled that ‘rolling discovery’ will not be permitted? Please share any comments you might have or if you’d like to know more about a particular topic.
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