United States District Court, M.D. Tennessee, Nashville
WISCHERMANN PARTNERS, INC., et al.
NASHVILLE HOSPITALITY CAPITAL LLC
BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE.
accordance with the Court's procedures for resolution of
discovery disputes, the parties have brought to the
Court's attention the contested issues described in the
Joint Discovery Dispute Statement filed on September 11,
2019. (See Docket No. 181). A telephonic discovery
conference was held on September 13, 2019. Counsel
participating were: Buckley Cole and Carson King for
Plaintiffs Wischermann Partners, Inc. and Wischermann
Hospitality Employer LLC (“Plaintiffs”); Peter
Klett and Stuart Scott for Counter-Defendant Paul Wischermann
(collectively with Plaintiffs, the “Wischermann
Parties”); and Overton Thompson for Defendant Nashville
Hospitality Capital, LLC (“Defendant” or
“NHC”). From the parties' joint statement and
discussion during the discovery conference, and for the
reasons discussed below, the Court ORDERS that Defendant must
supplement its prior discovery responses to produce monthly
executive summary and business review reports and STR Reports
for November 2017 through April 2018, if not already
provided. These documents must be produced
by no later than September 23, 2019.
Plaintiffs may use the supplemental information for
impeachment of witnesses or other permitted purposes at
trial, but no further discovery will be allowed regardless of
the information contained in the supplemental
reports. No. other supplemental document production
will be required.
case has a somewhat lengthy and convoluted procedural
history. The Court will detail only what is necessary for
understanding its decision in resolution of the pending
discovery dispute. Plaintiffs seek to require Defendant to
supplement its discovery responses to: (i) produce monthly
executive summary and business review reports and monthly
Smith Travel Research (“STR”) reports for
November 2017 through the present; (ii) provide any
amendments to the hotel management agreement between NHC and
Castlerock Hospitality Management, LLC concerning the Westin;
and (iii) confirm that there are no documents responsive to
Plaintiffs' request for communications between NHC and
Marriott/Starwood discussing the Joseph Nashville hotel.
relevant facts are undisputed. The period for completion of
fact discovery expired on September 18, 2018. (Docket No.
63). The deadline for discovery-related motion was September
25, 2018. (Id.). In discovery, Plaintiffs requested,
in Request for Production No. 2 (“RFP 2”), that
Defendant “[p]roduce all documents concerning the
performance of the Hotel in terms of customer satisfaction,
financial performances, employee turnover, occupancy rates
and room rates.” (Docket No. 181-1 at 32). Defendant
objected on various grounds but agreed to (and did) produce
responsive documents “for the period of October 2016
(the hotel opening) through October 2017.”
(Id.). The produced documents included, among other
things, monthly executive summary and business review reports
and industry-wide STR reports from October 2016 through
October 2017. (Id. and Docket No. 181 at 7).
Request for Production No. 7 (“RFP 7”) sought
production of “all contracts between NHC and Castlerock
Hospitality Management LLC related to the Hotel.”
(Docket No. 181-1 at 33). Defendant produced the hotel
management agreement, with reservation of its relevancy
objection. (Id.). In Request for Production No. 13
(“RFP 13”), Plaintiffs requested that Defendant
“[p]roduce all documents regarding communications
between NHC and the Marriott regarding The Joseph.”
(Id. at 34). Defendant again raised various
objections but agreed to produce any responsive documents.
October 8, 2018, Defendant provided Plaintiffs with the
expert report of Charles Pinkowski. (See Docket No.
136-3). In his expert report, Mr. Pinkowski utilized
information from executive summary and business reports and
STR reports through April 2018. (Id. at 41-42).
Although not entirely clear, it appears that at least the
April 2018 reports were provided as part of Defendant's
February 19, 2019, Plaintiffs filed a motion to exclude Mr.
Pinkowski's expert testimony under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
(See Docket No. 136). Plaintiffs' motion was
denied. (See Docket No. 178).
August 14, 2019, Plaintiffs raised, for the first time, that
Defendant had not complied with its obligations to supplement
discovery responses by providing information for periods that
coincide with information relied upon by Defendant's
expert. (Docket No. 181-1 at 2-3). Among the supplemental
discovery responses requested by Plaintiffs were those for
which Plaintiffs now seek the Court's assistance in
compelling production. On August 23, 2019, Defendant responded by
stating that it had complied with its discovery obligations
and considered Plaintiffs' supplementation requests to be
an improper attempt to serve new discovery requests long
after the discovery period had expired. (Id. at
25-26). Defendant further stated that Plaintiffs had not
timely raised any issues about the sufficiency of
Defendant's discovery responses, including the limited
temporal scope. (Id.). After attempts to resolve the
issues, the parties requested judicial intervention in
resolution of the dispute.
Legal Principles and Discussion
axiomatic that the Court has broad discretion in determining
the proper scope of discovery. Chrysler Corp. v. Fedders
Corp., 643 F.2d 1229, 1240 (6th Cir. 1981);
Naartex Consulting Corp. v. Watt, 722 F.2d
779, 788 (D.C. Cir. 1983); Grae v. Corrections
Corporation of America, 2019 WL 1746492, at *1
(M.D. Tenn. April 18, 2019). The dispute in this case
implicates two countervailing tenets of acceptable discovery
practices: a responding party's duty to supplement its
discovery responses and a receiving party's obligation to
timely move to compel discovery.
than 70 years ago, the United States Supreme Court explained
the core goals of the discovery rules contained in the
Federal Rules of Civil Procedure:
The pre-trial deposition-discovery mechanism established by
Rules 26 to 37 is one of the most significant innovations of
the Federal Rules of Civil Procedure. Under the prior federal
practice, the pre-trial functions of notice-giving
issue-formulation and fact-revelation were performed
primarily and inadequately by the pleadings. Inquiry into the
issues and the facts before trial was narrowly confined and
was often cumbersome in method. The new rules, however,
restrict the pleadings to the task of general notice-giving
and invest the deposition-discovery process with a vital role
in the preparation for trial. The various instruments of
discovery now serve (1) as a device, along with the pre-trial
hearing under Rule 16, to narrow and clarify the basic issues
between the parties, and (2) as a device for ascertaining the
facts, or information as to the existence or whereabouts of
facts, relative to those issues. Thus, ...