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BFC Gas Company LC v. Gypsum Supply Co.

United States District Court, N.D. Iowa, Cedar Rapids Division

May 30, 2014



JON STUART SCOLES, Magistrate Judge.

On the 27th day of May 2014, this matter came on for hearing on the Request for Sanctions Including Dismissal (docket number 20) filed by the Defendant on April 28, 2014. The Defendant was represented by its attorney, Philip A. Burian. The Plaintiffs were represented by their attorney, Kathryn S. Barnhill.[1]


On July 31, 2013, Plaintiffs BFC Gas Company L.C. and BFC Electric Company L.C. (collectively "BFC") filed a petition in the Iowa District Court for Linn County, seeking judgment against Defendant Gypsum Supply Co. d/b/a gypsum Supply Co. of Cedar Rapids ("GSC") for damages sustained to BFC's facility during a storm on May 19, 2013. BFC asserts that its facility was damages when parts of GSC's facility blew off and struck BFC's adjacent property. BFC claims negligence and res ipsa loquitur. The action was removed to this court on August 15, 2013, and GSC filed an answer on August 22.

On November 14, 2013, the Court adopted a proposed Scheduling Order and Discovery Plan submitted by the parties. Among other things, the parties agreed to a November 26, 2013 deadline for making initial disclosures under FED. R. CIV. P. 26, and a July 3, 2014 deadline for completion of discovery, with all dispositive motions due not later than August 1, 2014. In reliance on the pretrial deadlines, a bench trial has been scheduled before Chief Judge Linda R. Reade on December 15, 2014.

A. First Motion to Compel

On September 16, 2013, GSC served BFC with its first set of requests for production of documents and its first set of interrogatories.[2] BFC did not timely respond to GSC's discovery requests. In an email to BFC's attorney (Kathryn Barnhill) on December 4, GSC's attorney (Phillip Burian) advised Barnhill that she should consider December 17 "as a firm deadline for responding to the previously served interrogatories and requests for production of documents."[3]

In his December 4 email, Burian also noted that he had not received BFC's initial disclosures-the deadline was November 26 - and inquired as to when they could be expected. Burian told Barnhill that he needed to have BFC's initial disclosures in hand by December 10 "as I need to protect the record with a motion if not." Barnhill assured Burian in her response that she would have the initial disclosures to him by the 10th. Early in the afternoon of December 10, another GSC attorney (Jeffrey K. Rosencrants) called Barnhill "as a final courtesy to avoid a Motion to Compel on the Initial Disclosures." Barnhill told Rosencrants that "she had just started working on them."[4]

At 1:03 p.m. on December 10, Rosencrants sent an email to Barnhill, concluding that "[b]ased upon the materials we sent (which were significant), and the status of your initial disclosures, it is rather clear that we will not receive a satisfactory response today."[5] Barnhill responded 10 minutes later, stating "My initial disclosures are very simple. Yes, I just started them. You will have all there is to have. If that is not sufficient, you will need to file whatever you think is appropriate."[6] BFC's initial disclosures, which were served later that day, identified two persons likely to have discoverable information, together with three categories of documents (photographs of damage, estimates for repair, and "financials documenting loss of income, profit and lost opportunity costs").[7]

Later in the afternoon on December 10, Burian sent Barnhill an email questioning the adequacy of BFC's initial disclosures, and advising Barnhill that "[m]y patience is reasonably exhausted and I will not be granting any more formal or informal extensions."[8] Burian told Barnhill that if responses to GSC's discovery requests had not been received by December 17, then he would file a motion to compel. Burian also asked that Barnhill respond to earlier inquiries regarding the extent of BFC's electronically stored information ("ESI").

Barnhill responded 15 minutes later, acknowledging that she "started the Initial Disclosure this afternoon because this is a simple case of property damage."[9] Barnhill also represented that "[u]pon checking yet again, there is no ESI. There simply is none."[10]

BFC responded to GSC's discovery requests on December 17. Barnhill transmitted 17 emails with various attachments, including a spreadsheet which appeared to itemize damages in the amount of $3, 333, 351.[11] On December 19, Burian sent Barnhill an email confirming receipt of the attachments and raising various objections. On December 20, Burian received a CD from Barnhill containing additional documents. Burian wrote to Barnhill again on December 23, complaining that the discovery was not complete.[12]

On January 3, 2014, GSC filed its first Motion to Compel (docket number 10). BFC did not file a response to the motion and, therefore, the motion was granted on January 24. Specifically, the Order provided:

Not later than January 30, 2014 Plaintiffs shall produce the documents specifically and by implication referenced in paragraph 13 of the instant motion, and shall serve a signed answer to Defendant's interrogatories. If Plaintiffs fail to fully comply with this Order, then may be ...

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