United States District Court, D. Maryland
Faddis Concrete, Inc.
Browner Builders. Inc.
COUNSEL OF RECORD
case was referred to me for purposes of discovery on July 25,
2016 (ECF 42). On December 23, 2016, Defendant. Brawner
Builders filed a motion to compel discovery (ECF 57).
Defendant is seeking information from Plaintiff relating to
income, profits and losses from 2010 to the present.
Plaintiff objects on the basis that the request is overbroad
and seeks information protected by the attorney client
privilege. Plaintiff Faddis filed a motion for a protective
order on December 27. 2016 (ECF 58). Brawner Builders Hied a
response on December 30, 2016 (ECF 60). No reply was filed.
case arises from a contractual dispute between Brawner
Builders and Faddis. with other parties factually
intertwined. Faddis supplied soundproofing panels to Brawner
who was contracted by the Maryland State Highway
Administration (SHA) to install the panels along major
roadways. The panels were defective and failed to meet SUA
specifications. SHA rejected the products which caused delay
to the project and damages to be incurred by Brawner. Brawner
invoiced Faddis for the damages and when Faddis failed to
pay. Brawner withheld funds from Faddis to cover
Brawner's losses. Faddis then filed this claim, not only
alleging the damages from the withheld amount but also
damages Faddis alleges occurred due to loss of business in
Maryland. Virginia and Pennsylvania.
unpaid amount of the contract that was withheld by Brawner
was approximately $130, 000. This represents a very small
portion of damages Plaintiff alleges were caused by Brawner.
Plaintiff alleges that an SHA employee, not Brawner,
interfered with the contracts with the Virginia Department of
Transportation and the Pennsylvania Department of
Transportation by notifying those entities of Faddis'
defective materials and problematic performance under the
contract. As a result. Plaintiff was debarred from contracts
with Pennsylvania and Virginia. Specific to these outstanding
motions, Plaintiff alleges that the conduct of Brawner
(through SHA it appears) had a serious impact on its
business, causing two of Plaintiffs plants to close and a
loss in excess of $2.3 million dollars.
issue are documents that relate directly to Plaintiffs claim
for damages. Plaintiff has alleged that Defendant's
conduct caused two of its plants to close and a loss of $2.3
million dollars. Defendant argues that the documents
requested, in short - records of profit and losses from 2010
to the present, are critical to its defense. The Court
agrees. Plaintiffs claim and damages put the issue of the
state of its business on trial. Defendant would be completely
unable to defend against this claim without the information
regarding the economic health of Faddis' business. It
does not take great speculation or imagination to sec that
there could have been many other factors that contributed to
economic losses incurred by Plaintiff and closure of the
Virginia and Pennsylvania plants. Even if Plaintiffs theory
is successful at trial. Defendant would be defenseless in
determining damages that were proximately caused by Brawner
respect to the argument that the request for production of
documents is overbroad. the materials requested should be
available and kept in the normal course of business. The
records requested are standard recordkeeping materials used
for tax and other business purposes. The request is not
overbroad but responds directly to Faddis' claims for
damages. The materials are inclusive without being
overburdensome. In its request. Brawner has complied with
Local Rule Appendix A, Guideline 1 in that the request is
relevant to its defenses and proportional to what is at issue
in the case.
now to the issue of privilege, Brawner asserts that Faddis
has waived any issue of privilege by failing to comply with
Fed.R.Civ.P. 26(b)(5). The party asserting the privilege
bears the burden of proving that the particular communication
or information is privileged under the statute.
I'cllonc v. First Union Brokerage Services,
Inc.. 203 F.R.D. 231 234 (D.Md. 2001). Fed.R.Civ.P.
26(b)(2) requires "fw]hen a party withholds information
otherwise discoverable under these rules by claiming thai it
is privileged ..., the party shall make the claim expressly
and shall describe the nature of the documents,
communications, or things not produced or disclosed in a
manner that, without revealing information itself privileged
.... will enable other parties to assess the applicability of
the privilege ...."). Failure to comply with Rule
26(b)(2) alone would permit a Court to order disclosure of
otherwise privileged material, \'cllone at 235.
In its response to the Motion to Compel. Faddis simply
asserts that the material is privileged. Here. Faddis clearly
has failed to comply with the requirements of Rule 26(b)(2).
The Court agrees with Brawner that Faddis has waived any
claim of privilege as to the Second Document Request at
issue. Faddis. supra.
motion for a protective order, Faddis stated that should the
Court compel production of documents, counsel agreed to a
confidentiality stipulation and the parties can proceed
pursuant to Local Rule 104.13 regarding proposed
confidentiality orders. The Court continues to recommend the
parties work together to resolve any other outstanding issues
in order to bring this case to a resolution.
Ruling of the Court is as follows:
Motion to Compel (ECF 57) is GRANTED.
Plaintiffs Motion for a Protective Order (ECF 58) is DENIED.
the informal nature of this letter, it is an Order of the