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GJMS LLC v. Hamstra Builders Inc.

United States District Court, N.D. Indiana, Hammond Division

June 6, 2019

GJMS, LLC, Plaintiff,
v.
HAMSTRA BUILDERS, INC., et al., Defendants, HAMSTRA BUILDERS, INC., Counter-Claimant,
v.
GJMS, LLC, Counter-Defendant.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Objections to Affidavits of Mitch van Kley and Wilbert Hamstra [DE 55], filed May 14, 2019. Plaintiff/Counter-Defendant GJMS seeks to have Defendants found in contempt of court for violating a discovery order. Defendants filed a response on May 20, 2019. GJMS filed an untimely reply on May 28, 2019.

         I. Background

         In its Complaint, GJMS, a real estate owner, alleges that Defendants, who managed GJMS properties, sought improper payments from GJMS and made improper disbursements of GJMS funds. Defendant Hamstra Builders, Inc. is asserting a counterclaim seeking reimbursement for expenses it allegedly paid on GJMS's behalf.

         On October 31, 2018, GJMS filed a motion to compel Defendants to produce numerous documents related to their management of GJMS properties. GJMS sought documentation of services allegedly provided by Hamstra Builders that underlie Defendants' counterclaim for reimbursement, and records of allegedly improper transactions made by Defendants using GJMS funds, among other requests. Defendants did not respond to the motion to compel, and the Court granted the motion on November 16, 2018.

         After Defendants failed to produce additional documents in response to that order, GJMS filed a motion for sanctions for violating a discovery order. In response to the motion for sanctions, Defendants essentially argued that they had produced all the documents they have. On March 13, 2019, the Court issued a recommendation that GJMS's motion for sanctions be granted for relief different than requested, and that Defendants should provide GJMS with an affidavit certifying:

(1) the identities of the individuals who developed and executed any searches for documents;
(2) the computers and/or servers that were searched;
(3) the search terms, or any other filters, used in conducting the searches;
(4) all steps taken to preserve relevant hard copy data, and
(5) Defendants' policies for document retention, including any steps taken to preserve evidence after the litigation began.

R. & R. on Mot. for Sanctions [DE 46 at 4]. The recommendation was adopted on April 4, 2019, and on April 22, 2019, in response to that Order, Defendants produced affidavits signed by Defendants Mitch Van Kley and Wilbert Hamstra. GJMS now argues that the affidavits do not satisfy the Court's Order, and do not demonstrate that Defendants adequately searched for documents. GJMS requests “a hearing for contempt of court proceedings.”

         II. Analysis

         When the Court granted GJMS's motion to compel, Defendants were obliged to conduct a “careful and through” search, and produce all documents described in the Court's order within their custody or control. See Novelty v. Mountain View Mktg., Inc., 265 F.R.D. 370, 376 (S. D. Ind. 2009). If a party “fails to obey an order to provide or permit discovery, ” the Court “may issue further just orders, ” including treating failure to obey the order as contempt of court. Fed.R.Civ.P. 37(b)(2)(A). In this case, the Court's Order on the motion for sanctions required Defendants to make certifications to GJMS on a variety of topics related to their document production and retention. GJMS argues that Defendants' ...


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