Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc.

272 F.R.D. 350, 79 Fed. R. Serv. 3d 101, 2011 U.S. Dist. LEXIS 34508, 2011 WL 1125493
CourtDistrict Court, W.D. New York
DecidedMarch 21, 2011
DocketNo. 05-CV-6734T
StatusPublished
Cited by12 cases

This text of 272 F.R.D. 350 (Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 79 Fed. R. Serv. 3d 101, 2011 U.S. Dist. LEXIS 34508, 2011 WL 1125493 (W.D.N.Y. 2011).

Opinion

DECISION & ORDER

MARIAN W. PAYSON, United States Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiffs United States Telesis, Inc. (“U.S. Telesis”) and Star Direct Telecom, Inc. (“Star Direct”) have brought this action against defendant Global Crossing Bandwidth, Inc. (“Global Crossing”) alleging breach of contract claims, claims under Sections 201 and 202 of the Communications Act, 47 U.S.C. §§ 201 and 202, and various tort claims. (Docket ## 1, 13). At all relevant times, the three companies provided telecommunication services to other companies and consumers. Plaintiffs assert, among other claims, that Global Crossing breached agreements with them by restricting and thereafter terminating plaintiffs’ telecommunications services to the United Kingdom and by billing them for improper charges. (Docket # 1). Global Crossing has filed counterclaims against plaintiffs arising from their failure to pay Global Crossing the amounts it billed them under the agreements, including monthly minimum usage charges. (Docket #17).

Plaintiff Star Direct filed for bankruptcy protection on September 22, 2009. (Docket # 137). On February 1, 2010, the bankruptcy stay was lifted, permitting Global Crossing to proceed on its counterclaims against Star Direct. (Docket # 178). Despite the lifting of the stay, Star Direct has advised this Court through its local counsel that it does not intend to participate further in this action. (Docket # 179).

Currently pending before the Court is U.S. Telesis’s motion to compel Global Crossing to supplement its disclosure under Rule 26(e) of the Federal Rules of Civil Procedure by providing internal emails from 2004 relating to an agreement executed by the parties in April 2004 known as the “Concurrence Agreement.” (Docket # 190). For the reasons discussed below, I grant U.S. Telesis’s motion.

FACTUAL BACKGROUND

I. The Instant Motion

The latest dispute in this case relates to U.S. Telesis’s claim that Global Crossing has withheld relevant internal emails from the 2004 period regarding the Concurrence Agreement.1 The Concurrence Agreement provided that Star Direct’s account was to be combined with U.S. Telesis’s account to allow U.S. Telesis to benefit from a more favorable call rate that Star Direct had negotiated with Global Crossing. (Docket ## 190 at 5-6; 215 at 15). Before the Concurrence Agreement was negotiated, however, each plaintiff had executed a separate carrier services agreement with Global Crossing that required each company to pay a “minimum [354]*354monthly usage commitment” charge (“MMUC”). (Docket # 215 at 2-3). Following the Concurrence Agreement, Global Crossing continued to bill each plaintiff for the separate MMUCs. (Id. at 4). Plaintiffs contend that this practice constituted a breach of the Concurrence Agreement because, in their view, the Concurrence Agreement relieved them of the obligation to meet two MMUCs. (Id. at 3-4). By contrast, Global Crossing asserts that it was plaintiffs who breached their agreements by failing to pay the bills because the Concurrence Agreement did not extinguish or modify plaintiffs’ MMUCs obligations under the earlier carrier services agreements. (Id. at 4).

In a previously-filed motion for summary judgment, Global Crossing argued that the Concurrence Agreement had never become effective because plaintiffs had failed to provide it with certain financial documents, which was a condition precedent to the contract. (Docket # 215 at 13). Global Crossing based this argument principally upon a 2005 email from Dan Anderson (“Anderson”), Global Crossing’s sales representative responsible for the plaintiffs’ accounts.2 (Docket # 191, Ex. 24). U.S. Telesis represents that it did not discover the absence of emails from 2004 until Global Crossing filed its motion for summary judgment and included the 2005 Anderson email. (Docket ## 190 at 18; 191 at ¶ 33).

While the summary judgment motion was pending, U.S. Telesis brought the instant discovery motion challenging Global Crossing’s failure to produce any internal emails from 2004, contending that such emails are relevant to Global Crossing’s condition precedent defense, as well as its own breach of contract claim under the Concurrence Agreement. (Docket ## 190 at 17, 21; 196 at 3, 7; 202, Ex. 1 at 24). Global Crossing opposes the discovery motion on the grounds that it is untimely because it was not filed until after the close of discovery. (Docket # 195 at 6). Alternatively, Global Crossing asserts that the emails are not reasonably accessible and that their production would be financially burdensome. (Id. at 13). If production is ordered, however, Global Crossing urges that the associated costs be shifted to U.S. Teles-is. (Id.).

II. Relevant Procedural History

The complaint in this case was filed on December 20, 2005. (Docket # 1). Discovery commenced in mid-2007, following the district court’s decision on Global Crossing’s motion to dismiss the complaint. (Docket #28).

U.S. Telesis contends that the following three document requests in Plaintiffs’ First Consolidated Document Requests, dated December 14, 2007, require the production by Global Crossing of any responsive internal emails from 2004:

• All documents that refer to, relate to, reflect and/or constitute any communications between Global or its representatives and Plaintiffs or representatives of Plaintiffs. [Document Request No. 3].
• Any and all correspondence, whether by traditional mail, overnight delivery or electronic mail, including all drafts and whether sent or not, between Global or its representatives and Plaintiffs or representatives of Plaintiffs. [Document Request No. 4],
• All documents that refer to and/or relate to the “Concurrence Agreement” identified in Plaintiffs’ complaint, including, without limitation, all documents that refer to and/or relate to the negotiation of that Agreement. [Document Request No. 25],

(Docket ## 190 at 11; 191, Ex. 30). Global Crossing responded to these requests on February 4, 2008. It objected to Requests Nos. 3 and 4 as overbroad and burdensome, but agreed to produce documents responsive to Request No. 25. (Docket # 191, Ex. 30). As to the latter, Global Crossing responded, “Global Crossing will produce at a mutually convenient time and location, non-privileged documents responsive to this Request in its possession, custody and control”. (Id.).

[355]*355In November 2008, plaintiffs deposed Anderson, an employee of Global Crossing who facilitated the negotiation between the parties of the Concurrence Agreement and communicated most often with plaintiffs’ representatives about the agreement. (Docket ## 191, Ex. 5 at 13-14; 195 at 12). During his deposition, Anderson testified that his laptop had “crashed”; although he could not remember specifically when that had occurred, he stated that he believed that it had occurred in 2006. (Docket ## 190 at 11; 191, Ex. 5 at 22).

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272 F.R.D. 350, 79 Fed. R. Serv. 3d 101, 2011 U.S. Dist. LEXIS 34508, 2011 WL 1125493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/star-direct-telecom-inc-v-global-crossing-bandwidth-inc-nywd-2011.