United States District Court, S.D. West Virginia
DAVID K. MATHENY, Plaintiff,
THE L.E. MYERS CO., a foreign corporation, and APPALACHIAN POWER COMPANY, a foreign corporation d/b/a American Electric Power Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE
before the court are objections, filed by defendant The L.E.
Myers Co. (“L.E. Myers”) on October 18, 2017, to
Magistrate Judge Dwane L. Tinsley's order, entered
October 4, 2017. This order granted plaintiff David K.
Matheny's motion to compel, ECF No. 58, and awarded
plaintiff his costs, including attorney's fees,
associated with the resolution of that motion. ECF No. 165.
hearing on plaintiff's motion to compel, held before
Judge Tinsley on September 27, 2017, counsel advised the
court that the only outstanding discovery issue is one that
is related to the discovery of documents through the
identification of search terms and account custodians. Judge
Tinsley's order instructed Mr. Matheny to provide L.E.
Myers with search terms and account custodians by September
28, 2017, and for L.E. Myers to provide the results of those
search terms and account custodians within ten days of
receipt of the discovery request. ECF No. 165 at 2-3.
Plaintiff was further instructed to file an affidavit of his
reasonable expenses, including attorney's fees, incurred
in making his motion, by October 11, 2017, and L.E. Myers was
permitted to respond within seven days. Id. at 4.
Myers objects both to the granting of plaintiff's motion
to compel and to the award of costs associated with that
motion. L.E. Myers contends that Mr. Matheny never provided
specific search terms before the hearing, so defendant had no
obligation or ability to respond to that request. Def.'s
Objections to Magistrate Judge's Order (“Def.'s
Objs.”), ECF No. 177 at 2. Further, the account
custodians had already been identified and agreed upon over
three months prior to the hearing. Id. This, L.E.
Myers asserts, makes both the granting of the motion to
compel and the award of fees inappropriate. Id.
response, Mr. Matheny states that he had previously offered
to provide search terms to L.E. Myers, but that defendant
represented it would provide a comprehensive list of search
terms, and that after this provision, Mr. Matheny would
identify and provide additional terms. Pl.'s Resp.
Def.'s Objs. at 2 (“Pl.'s Resp.”); Ex. 2
Pl.'s Mot. Compel ECF No. 58; Ex. 1 Pl.'s Reply ECF
No. 67. Because L.E. Myers never provided plaintiff with the
final comprehensive list of search terms, he was unable to
submit his search terms to them. Pl.'s Resp. at 2;
Transcript of Hr'g Pl.'s Mot. Compel
(“Transcript”) at 11. Despite not having
plaintiff's search terms, L.E. Myers did conduct searches
of at least some custodian accounts and provided two batches
of documents to Mr. Matheny, the second of which was produced
the night before the hearing, approximately one month after
the close of discovery. Transcript at 7-10, 15; see ECF No.
37. Finally, at the time of the hearing, plaintiff did not
know which of the custodians had theretofore been searched
and if any had not yet been searched at all. Transcript at
to Fed.R.Civ.P. 72(a), this court will modify or set aside a
nondispositive order of the magistrate judge based on the
timely objection of a party only if such order is clearly
erroneous or contrary to law.
on a review of the record, the court concludes that the
magistrate judge's order was not clearly erroneous or
contrary to law. In considering plaintiff's motion, Judge
Tinsley reviewed the briefs, exhibits, and arguments of the
parties at the hearing, and noted the “pattern of
delay” exhibited by L.E. Myers in responding to
plaintiff's discovery requests. ECF No. 165 at 2. The
observation of L.E. Myers' “pattern of delay”
was ostensibly based on the partial production of documents
up to the evening before the hearing and plaintiff's need
to file a previous motion to compel to prompt discovery
responses from L.E. Myers. Transcript 6-7, 19; see ECF Nos.
32, 33, 34.
Myers' assertions do not amount to the required showing
that the magistrate judge's order was clearly erroneous
or contrary to law. Even if the custodian accounts had been
discussed and agreed upon by the parties before the hearing,
the requested documents from those accounts were not fully
produced during the course of discovery, and plaintiff did n
P t kn RA w which, if any, of the custodian accounts still
needed to be searched. Furthermore, L.E. Myers failed to
furnish a comprehensive list of search terms, as agreed by
it, resulting in plaintiff's delay in provision of
additional search terms, as found by Judge Tinsley.
court, accordingly, ORDERS that the order entered by Judge
Tinsley on October 4, 2017 and objected to by L.E. Myers be,
and it hereby iso, r affirmed except that the question of
costs, including attorney fees, is yet to be determined.
further ORDERED that this matter is again referred to Judge
Dw ane L. Tinsley for the purpose of determining the question
relating to costs, including attorney fees.
Clerk is directed to transmit copies of this memorandum
opinion and order to all counsel of ...