219 F.R.D. 649 | D. Kan. | 2004
ORDER
This matter comes before the court upon defendant’s Motion to Compel discovery responses. (Doc. 43) Defendant moves the Court for an order compelling the plaintiff to produce documents within plaintiffs possession and control, documents within the possession of the counterclaim defendant, electronic versions of various documents, and documents and materials relied upon by the plaintiffs expert, Turgut Selbasti. Plaintiff opposes the motion on the grounds that it has produced all the documents it could or would be required to produce. For the reasons stated below, defendant’s Motion to Compel is granted in part and denied in part.
I. Relevant Factual Background
Plaintiff Super Film of America, Inc. (“Super Film America” or “SFA”) filed the instant suit against defendant UCB Films, Inc. (“UCB”) in the District Court of Shawnee County, Kansas, alleging that defendant breached a contract for the sale of goods when it failed to pay $115,821.20 for certain transparent film delivered to the defendant. The film in question was manufactured by Super Film Sanayi ve Tiearet A.S. (“Super Film Turkey” or “SFT”) and shipped directly to UCB. SFA negotiated the sale and acted as SFT’s representative in the United States. Defendant removed the action to federal court and counterclaimed against the plaintiff, alleging that the film delivered to UCB was defective.
On August 22, 2003, UCB served twenty-two discrete requests for production of documents on SFA. (Doc. 28). In response to a number of those requests, SFA took the position SFT might have some of the requested documents but SFA was not obligated to produce documents in the possession of SFT. (Doc. 32). On November 3, 2003, UCB filed the instant motion to compel document production. On December 1, 2003, SFA supplemented its responses to UCB’s requests for production (Doc. 50). On December 4, 2003, SFA filed its Response and Memorandum in Opposition to Defendant’s Motion to Compel, urging the court to deny the defendant’s motion. (Doc. 54). On December 17, 2003, UCB filed its Reply Memorandum in Support of its Motion to Compel. (Doc. 57).
On January 26, 2004, the court entered an Order granting UCB leave to amend its counterclaims to join SFT as a counterclaim defendant. (Doc. 60). On January 27, 2004, UCB filed its Amended Answer to Plaintiffs Complaint and First Amended Counterclaim, adding SFT as a counterclaim defendant. (Doc. 61).
II. Discussion
A. Standards
Federal Rule of Civil Procedure 26(b)(1) provides that the “parties may obtain discovery regarding any matter, not privileged,
“When the relevancy of propounded discovery is not apparent, ... its proponent has the burden to show the discovery relevant.”
Under Fed.R.Civ.P. 34(a), a party may be required to produce relevant documents and tangible things that are within its “possession, custody or control.” “[Cjontrol comprehends not only possession but also the right, authority, or ability to obtain the documents.”
“Ordinarily, a sworn statement that a party has no more documents in its possession, custody or control is sufficient to satisfy the party’s obligation to respond to a request for production of documents.”
B. Analysis
In its memorandum in support of the motion to compel, UCB identifies four discrete categories of documents and materials whose production it seeks to compel:
1. Documents that are in Super Film America’s possession and control;
2. Documents that are in Super Film Turkey’s possession, but that are within Super Film America’s control;
3. Electronic versions of documents, emails, databases, and spreadsheets; and
4. Documents and materials relied upon by Super Film America’s expert, Tur-gut Selbasti, who also happens to be an employee of Super Film Turkey.11
Based on the parties’ representation, the court finds that they have attempted to resolve this dispute without court intervention in compliance with the local rules. Because these efforts appear to have failed, the court will now evaluate the defendant’s motion with respect to each of the categories set forth above.
1. Documents within SFA’s possession.
UCB claims that during their depositions, Peter Ladas, SFA’s Director of Sales, and Fatih Basel, SFA’s President, testified that they possessed but had not produced many documents requested by UCB in its First Request for Production. In its response to the instant motion, SFA states that it has produced all requested documents, either in the original production or through its December 1, 2003 supplementation, and has “nothing further in its possession, custody or control which is responsive to the requests.” In its reply, UCB states that SFA has not produced the following categories of documents:
• For the last three years, income statements, balance sheets, accounts payable, accounts receivable, and supporting ledgers;
• Mr. Basel’s correspondence to Mr. Sel-basti requesting him to prepare his expert disclosure or expert opinions;
• The complete e-mail associated with document SFA00034, which is an excerpt of an e-mail. It indicates that it is the second page of a two-page document;
• Mr. Ladas’s calendar; and
• The “many documents not specific to UCB” that talk about polypropylene and product codes that Mr. Ladas described in his deposition.12
All of the documents described above appear to have, at least at one point, been in the possession, custody or control of SFA. For example, it is clear that Mr. Ladas would possess his own calendar. Similarly, the correspondence between Mr. Basel and Mr. Selbasti would normally be found in the possession, control, or custody of the two corresponding individuals — Messrs. Basel and Selbasti. As noted above, Fed.R.Civ.P. 26(b)(1) permits parties to obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. The court finds that all the documents identified on pages 4 and 5 of UCB Film’s Reply Memorandum in Support of its Motion to Compel are relevant to the claims and defenses of the parties in this action and therefore they must be produced by SFA. SFA shall produce these documents to UCB within thirty (30) days of the date of this Order. To the extent the documents in question are no longer in SFA’s possession, custody, or control, SFA is hereby directed to explain, in detail and in writing, to defendant UCB the disposition of these documents.
2. Documents within SFT’s possession.
Defendant UCB next argues that the court should order production of documents within the possession of SFT. SFA opposes such production because it claims it does not
• Super Film Turkey’s income statements, ledgers, balance sheets, accounts payable, accounts receivable;
• Polypropylene product code books and CD Roms;
• The results of Mr. Selbasti’s testing or measurement and his report memorializing the results and analysis of his technical inspection;
• Process control documents relating to the raw materials and process used to manufacture the BOPP at issue in this ease and in earlier shipments, including the written production protocols for manufacturing the polypropylene film;
• Correspondence between Super Film Turkey and Super Film America relating to the polypropylene;
• Documents exchanged between UCB Films and Super Film Turkey; and
• Electronic versions of all documents produced.13
To order SFA to produce documents in the possession of SFT, the court must determine that SFA has the right, authority, or ability to obtain the requested documents.
UCB argues that control should be implied in this case because (1) there is “significant overlap” in the structure of both companies due to the sharing of company employees, (2) SFT labels SFA its “USA Sales Office” and “USA Liaison Office,” (3) an exclusivity arrangement prohibits SFA from selling polypropylene not manufactured by SFT, (4) the payment flow between SFT and SFA suggests that SFA is a sales and accounts receivables department for SFT’s transactions in the U.S., and (5) SFA has, in the past, held itself out to be a subsidiary of the Sanko Group of Companies, which is the parent group of SFT.
In support of its motion to compel, UCB has presented evidence that SFT was intimately involved in the transaction giving rise to the dispute in this case. SFT entered into a contract with UCB, identifying UCB as the “customer” for approximately 20,000 lbs of polypropylene film.
In its response, SFA argues that it has no ability to obtain SFT documents and there is no “inherent relationship” between the two companies that would justify a finding of control under Fed.R.Civ.P. 34(a). SFA states that Mr. Basel owns 100% of SFA’s stock and there is no overlapping between SFT and SFA management or ownership. As such, SFA now claims it is a distinct legal entity, not affiliated with SFT. Plaintiff suggests that the only relationship between the two companies is a contractual one of supplier/manufacturer (SFT) and distributor (SFA).
The party seeking production of documents bears the burden of proving that the opposing party has the control required under Fed.R.Civ.P. 34(a).
Control may be established where the corporations in question share a common ownership or management structure.
The broad definition of control under Fed.R.Civ.P. 34 was signaled by the Supreme Court in Société Internationale v. Rogers, where the Court held that compliance with a Rule 34 request for a party’s documents held by the party’s Swiss bank was not excused merely because the turnover of such documents would violate foreign law.
Folio-wing the Supreme Court lead,
The court must review UCB’s motion to compel production of documents in SFT’s possession in light of the expanded definition of control under Fed.R.Civ.P. 34 outlined above. The evidence suggesting that SFT and SFA are related companies is not overwhelming. With the exception of a past, apparently erroneous, representation that SFA is a subsidiary of Sanko, SFT’s parent, and the statement by the plaintiffs counsel that one of its expert witnesses, Turgut Sel-basti, is an employee of a “related” company, SFT, the parties do not contend that SFA is other than wholly-owned by Mr. Fatih Basel. There does not appear to be any ownership of SFA by SFT or its parent corporation, Sanko Group of Companies. Therefore, the court must look to the additional factors listed above to determine whether SFA may be deemed to control SFT’s documents.
The court finds that UCB has sufficiently demonstrated a commonality of interest between SFT and SFA to impute control. The contract for the delivery of the film at issue was between SFT and UCB. SFT shipped the film directly to UCB. At the request of SFA, SFT sent its employees to UCB facilities to investigate UCB complaints. SFT did not charge SFA for the use of its employees or for any tests conducted or reports prepared as a result of the investigation. One of SFT’s employees, Mr. Selbasti, is assisting SFA as an expert in the preparation of this ease for trial. Once again, SFT is not charging SFA for Mr. Selbasti’s time. Despite SFA’s claim that it purchased the film at issue from SFT and then resold it to UCB, SFT has not yet been paid for the film it delivered to UCB. Because SFT has not been compensated for the film delivered to UCB, it will derive a substantial benefit from this litigation if SFA prevails. Furthermore, following this court’s January 27, 2004 ruling, UCB has amended its Answer and Counterclaims to include,., SFT as a counterclaim defendant. In its amended counterclaims, UCB asserts claims of breach of contract, breach of express warranty, breach of implied warranty of merchantability, and fraud against both SFA and SFT. This amendment to the pleadings further underscores the substantial involvement of SFT in this litigation.
SFT has chosen to conduct its business in America through its distributor, SFA. Following a dispute regarding certain polypropylene film delivered to UCB, SFA brought the instant collection action. SFA would have the court believe that this action was not brought on behalf of SFT even though the evidence presented by UCB in support of this motion to compel clearly shows that SFA did not derive profit from any sale of SFT’s
The court finds that SFA and SFT share a commonality of interest sufficient to conclude that the defendant has established the control requirement of Rule 34 necessary to compel production of additional documents. Despite SFA’s assertions that the sale at issue involved two separate transactions — a sale by SFT to SFA and a sale by SFA to UCB — the evidence presented suggests that the sale was, in fact, one transaction and the two Super Film companies acted “as one” to effect it. SFT holds documents which the defendant has shown to be relevant to the central issue in this litigation — the quality of polypropylene film. Having acted so closely together with SFT in the course of the transaction, SFA cannot now assert that it does not control the very same documents that were used in the sale and in the subsequent investigation of the complaints by UCB.
Therefore, the court orders SFA to produce categories of documents set forth on page 7 of this Order and listed in UCB Film’s Reply Memorandum in Support of its Motion to Compel that may be in the possession of SFT but are hereby deemed to be in control of SFA. SFA shall produce such documents to UCB within thirty (30) days of the date of this Order.
UCB also seeks a court order compelling the production of unredacted versions of certain manufacturing documents.
3. Electronic versions of documents.
UCB seeks discovery of electronic versions of e-mail, documents, databases and spreadsheets that fall within the scope of Fed.R.Civ.P. 26 or UCB’s document requests.
In its response to the motion to compel, SFA states that it has attempted to provide electronic copies of the documents requested within its “knowledge or expertise”
Fed.R.Civ.P. 26(a)(1)(B) requires a party to provide a “copy of, or a description by
The court finds SFA’s conclusory contention that it does not have the expertise to retrieve such electronic data to be inadequate. Further, the court cannot relieve a party of its discovery obligations based simply on that party’s unsupported assertion that such obligations are unduly burdensome. As the court in Black & Veatch Int’l. Co. v. Foster Wheeler Energy Co. explained, the party opposing electronic discovery on the grounds of undue burden must “provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to produce the requested documents.”
The court, therefore, finds that SFA must produce electronic versions of e-mail, documents, databases and spreadsheets requested by UCB that fall within the scope of Fed.R.Civ.P. 26. SFA shall produce to UCB the requested electronic information within thirty (30) days of the date of this Order.
4. Documents relied upon by Turgut Selbasti.
The last category of documents UCB seeks to obtain in the instant motion relate to Mr. Turgut Selbasti, an employee of SFT. In particular, UCB seeks production of the following items:
a. Disclosures required by Fed.R.Civ.P. 26(a)(2)(B);
b. Documents and supporting materials considered by Mr. Selbasti in formulating his opinions related to the polypropylene at issue; and
c. Letters from Mr. Palmer, counsel for SFA, and Mr. Basel to Mr. Selbasti requesting that he prepare his opinion letter.
The court will examine each of the defendant’s requests in order.
Mr. Selbasti is the Technical Director for Super Film Turkey responsible, among other things, for managing SFT’s departments for research and development, quality control, process control, and technical advice. SFA designated Mr. Selbasti as an expert in this case.
In its response to defendant’s motion to compel, SFA argues that, despite its earlier designation of Mr. Selbasti as an expert witness, he is actually a fact witness and, therefore Fed.R.Civ.P. 26(a)(2)(B) does not apply.
When a party designates a witness for the purpose of providing an expert opinion for use in litigation, disclosure requirements of Fed.R.Civ.P. 26(a)(2)(B) apply. Under Fed.R.Civ.P. 26(a)(2)(B), the disclosure of an expert witness must
be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
The extensive, mandatory requirements of Fed.R.Civ.P. 26(a)(2)(B) apply only to expert witnesses and do not apply to fact witnesses. As noted above, SFA filed an expert designation under Rule 26(a)(2) and noted that “Mr. Selbasti is employed by Plaintiff [SFA]. Mr. Selbasti’s report, Curriculum Vitae, and a listing of the cases in which he has testified are attached to counsel’s copy of this disclosure.”
The court is not satisfied with the plaintiffs explanation. The plaintiff designated Mr. Selbasti as an expert to preserve its right to call him as expert at trial. Based on the court’s review of the documents submitted in support of and in opposition to the motion to compel, it appears that the plaintiff intends to call Mr. Selbasti as an expert at trial, in which case the defendant would be entitled to attempt to explain and rebut Mr. Selbasti’s testimony. Rule 26 requirements exist to enable litigants to best prepare their side for trial. These requirements are not voluntary. As a result of Mr. Selbasti’s designation as an expert, UCB is entitled to the disclosures required by Fed.R.Civ.P. 26(a)(2)(B). SFA shall provide to UCB the disclosures set forth in Fed.R.Civ.P. 26(a)(2)(B) for Mr. Selbasti within thirty (30) days of the date of this Order.
b. Documents and Materials Relied Upon by Mr. Selbasti.
In addition to the Rule 26(a)(2)(B) disclosures, UCB seeks to compel production of documents and materials relied upon by Mr. Selbasti in formulating his expert opinions. In particular, UCB seeks production of the following items:
• Samples of polypropylene shipments made to UCB Films;
• Process conditions report;
• Production reports;
• Raw materials report;
• Certificates of analysis;
• Incoming Raw Material Inspection Form; and
• Log sheets.52
Before the court can address the question of whether SFA must produce documents and materials relied on by Mr. Selbasti to reach his opinions regarding polypropylene at issue, it must address the procedural dispute that has arisen with respect to these documents and materials. The plaintiff questions the procedural propriety of the motion to compel production of documents and materials relied upon by Mr. Selbasti.
In its response to UCB’s motion to compel, the plaintiff claims that, prior to filing this motion, UCB has not made any requests for production of materials reviewed by Mr. Sel-basti.
In its Memorandum in Support of its Motion to Compel, UCB lists the documents and materials relied upon by Mr. Selbasti and cites to his deposition transcript as the source of the request. The court has reviewed the deposition transcript at issue and finds that the only item actually requested by UCB during Mr. Selbasti’s deposition was the “[sjamples of polypropylene shipments made to UCB Films.”
SFA shall produce to UCB samples of polypropylene shipments made to UCB Films within thirty (30) days of the date of this Order. SFA is not required to produce to UCB other documents and materials identified during Mr. Selbasti’s deposition and described in the defendant’s Memorandum in Support of its Motion to Compel, including the process conditions report, the production reports, raw materials report, certificates of analysis, incoming raw material inspection form, and log sheets, at this time.
c. Messrs. Palmer and Basel’s Letters to Mr. Selbasti.
In addition to the documents used by Mr. Selbasti in formulating his opinion, UCB seeks to compel production of letters from Mr. Palmer, counsel for SFA, and Mr. Basel to Mr. Selbasti requesting that he prepare his opinion letter. SFA does not contend that these letters were not requested by UCB prior to the filing of the instant motion to compel, nor does SFA lodge any specific objection to their production. Therefore, the court hereby orders SFA to produce to UCB the letters from Messrs. Palmer and Basel to Mr. Selbasti requesting that he prepare his opinion letter within thirty (30) days of the date of this Order.
IT IS THEREFORE ORDERED that defendant UCB Film’s Motion to Compel certain documents and materials from plaintiff Super Film America (Doc. 43) is granted in part and denied in part.
IT IS FURTHER ORDERED that SFA shall produce to UCB within thirty (30) days of the date of this Order the following documents:
a) The documents in the possession and control of SFA described on page 6 of this Order and listed on pages 4 and 5 of UCB Film’s Reply Memorandum in Support of its Motion to Compel. To the extent the documents in question are no longer in SFA’s possession, custody, or control, SFA is hereby directed to explain, in detail and in writing, to defendant UCB the disposition of these documents;
b) The documents in the possession of SFT and control of SFA described on page 7 of this Order and listed on pages 7 and 8 of UCB Film’s Reply Memorandum in Support of its Motion to Compel;
c) Unredacted copies of the manufacturing documents described on page 14 of this Order and pages 8 through 10 of UCB Film’s Reply Memorandum in Support of its Motion to Compel;
e) The disclosures set forth in Fed.R.Civ.P. 26(a)(2)(B) for Mr. Selbasti;
f) The samples of polypropylene shipments made to UCB Films. SFA is not required to produce to UCB other documents and materials identified during Mr. Selbasti’s deposition and described in the defendant’s Memorandum in Support of its Motion to Compel, including the process conditions report, the production reports, raw materials report, certificates of analysis, incoming raw material inspection form, and log sheets, at this time;
g) The letters from Messrs. Palmer and Basel to Mr. Selbasti requesting that he prepare his opinion letter.
IT IS FURTHER ORDERED that with respect to any document or group of documents, including electronic documents, which is not produced as directed above, SFA shall show cause to the Court within thirty (30) days of this Order why it did not fully comply with this Order and shall specifically describe the efforts it made to comply with this Order.
. Fed.R.Civ.P. 26(b)(1).
. Bryant v. Farmers Insurance Company, Inc., 2002 WL 1796045, at *1-2, 2002 U.S. Dist. LEXIS 14344, at *4-5 (D.Kan. July 31, 2002); see also Hill v. Dillard's Inc., 2001 WL 1718367, at *2, 2002 U.S. Dist. LEXIS 950, at *7 (D.Kan. Oct. 9, 2001).
. Bryant, 2002 WL 1796045 at *2, 2002 U.S. Dist. LEXIS 14344 at *5-6; see also Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 309 (D.Kan.1996).
. Scott v. Leavenworth Unified Sch. Dist., 190 F.R.D. 583, 585 (D.Kan.1999), and Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan.1999). Despite the change in Fed.R.Civ.P. 26(b)(1), which was amended in 2000, the standard enunciated in Scott and Etienne continues to apply. Sheldon v. Vermonty, 204 F.R.D. 679, 690 n. 7 (D.Kan.2001).
. Etienne, 185 F.R.D. at 656.
. Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D.Kan.2002).
. Comeau v. Rupp, 810 F.Supp. 1127, 1166 (D.Kan.1992); see also McCoo v. Denny’s, Inc., 192 F.R.D. 675, 692 (D.Kan.2000); Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 307 (D.Kan.1996).
. Lone Star Steakhouse & Saloon, Inc. v. Liberty Mutual Insurance Group, et al., 2003 WL 21659662, *2, 2003 U.S. Dist LEXIS 12160, *5-6 (D.Kan. June 4, 2003).
. Lone Star Steakhouse & Saloon, Inc., 2003 WL 21659662 at *2, 2003 U.S. Dist. LEXIS 12160 at *6.
. Lone Star Steakhouse, 2003 WL 21659662 at *2-3, 2003 U.S. Dist. Lexis at *8.
. UCB Film's Memorandum in Support of its Motion to Compel, p. 8. (Doc. 44).
. UCB Film's Reply Memorandum in Support of its Motion to Compel, pp. 4-5 (Doc. 57).
. UCB Film’s Reply Memorandum in Support of its Motion to Compel, pp. 7-8 (Doc. 57).
. Comeau, 810 F.Supp. at 1166.
. Order Confirmation, Exhibit 5 to UCB Film's Memorandum in Support of its Motion to Compel. (Doc. 44).
. Norman v. Young, 422 F.2d 470, 472 (10th Cir.1970).
. For the purpose of discussing tire instant motion to compel, the court will refer to SFT as a "third party” because, although it has now been joined in the litigation as a counterclaim defendant, it was not a party to the lawsuit when this motion was filed and is not a respondent to the instant motion to compel. UCB has since amended its answer and counterclaims to include SFT as a counterclaim defendant. (Doc. 61).
. Compagnie Française d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 33 (S.D.N.Y.1984).
. Alimenta v. Anheuser-Busch Cos., Inc., 99 F.R.D. 309, 312 (N.D.Ga.1983).
. Alimenta, 99 F.R.D. at 312, citing Hickman v. Taylor, 329 U.S. 495, 506, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
. Afros S.P.A. v. Krauss-Maffei Corp., 113 F.R.D. 127 (D.Del.1986) (A wholly-owned subsidiaiy ordered to produce documents in possession of its non-party parent corporation.).
. Perini America, Inc. v. Paper Converting Mach. Co., 559 F.Supp. 552, 553 (E.D.Wis.1983) (Court ordered production of documents held by foreign sister corporation which was the "alter ego” of the owner.).
. Uniden America Corp., et al. v. Ericsson, Inc., 181 F.R.D. 302, 305 (M.D.N.C.1998).
. 357 U.S. 197, 204, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958).
. Id.
. Uniden America Corp., 181 F.R.D. at 306.
. Id.
. Société Internationale v. Rogers, 357 U.S. 197, 206, 78 S.Ct. 1087, 2 L.Ed.2d 1255 ("Rule 34 is sufficiently flexible to be adapted to the exigencies of particular litigation.”).
. Natta v. Hogan, 392 F.2d 686, 691 (10th Cir.1968) (Assignee of a patent ordered to produce documents where the assignee claimed it was not a party to an action.).
. Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525-26 (S.D.N.Y.1992) (Patent owner ordered to produce files held by its licensee's agents.).
. Bank of New York v. Meridien BIAO Bank of Tanzania, Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y. 1997) (Defendant ordered to produce documents in the possession of its co-defendant's successor-in-interest, who was not a party to the action.).
. Holland American Merchants Corp. v. Rogers, 23 F.R.D. 267, 269 (S.D.N.Y.1959) (Production ordered because agreement by third party implied existence of control).
. Uniden America Corp., 181 F.R.D. at 306.
. Id.
. Videotaped Deposition of Steven Fatih Basel, at 200:4-204:17, Exhibit 9 to UCB Film’s Memorandum in Support of its Motion to Compel (Doc. 44).
. UCB Film’s Reply Memorandum in Support of its Motion to Compel, pp. 8-10 (doc. 57).
. UCB Film's Memorandum in Support of Motion to Compel, p. 20 (Doc. 44); see also Exhibit F to defendant's Reply Memorandum in Support of its Motion to Compel (Doc. 57).
. Plaintiff's Response and Memorandum in Opposition to Defendant’s Motion to Compel, p. 6 (Doc. 54).
. Fed.R.Civ.P. 26 advisory committee’s notes, 1993 amendments (emphasis added).
. Kleiner v. Burns, 2000 WL 1909470, *4, 2000 U.S. Dist. LEXIS 21850, *12 (D.Kan. Dec. 15, 2000) (The court in Kleiner did not intend the list to be exhaustive); citing Hon. Shira A. Scheind-Iin and Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up To The Task?, 41 B.C. L.Rev. 327, 333 (2000).
. Kleiner, 2000 WL 1909470 *4, 2000 U.S. Dist. LEXIS *12; see also Zhou v. Pittsburg State University, 2003 WL 1905988, *2, 2003 U.S. Dist. LEXIS 6398, *5-6 (D.Kan. Feb. 5, 2003).
. 2002 WL 1071932, *3 (D.Kan.2002) (citation omitted).
. UCB Film’s Memorandum in Support of its Motion to Compel (Doc. 44) and UCB Film’s Reply Memorandum in Support of its Motion to Compel. (Doc. 57).
. Plaintiff's Rule 26(a)(2) Expert Witness Disclosure, Exhibit D to defendant’s Reply Memorandum in Support of its Motion to Compel (Doc. 57); see also Plaintiff's Final Witness and Exhibit List. Exhibit E to defendant’s Reply Memorandum in Support of its Motion to Compel. (Doc. 57).
. Furthermore, SFA states that the documents requested by UCB with respect to Mr. Selbasti’s testimony are in the possession, custody or control of SFT and, therefore, are not available for production by SFA.
. Plaintiff’s Rule 26(a)(2) Expert Witness Disclosure, Exhibit D to defendant’s Reply Memorandum in Support of its Motion to Compel. (Doc. 57).
. Fed.R.Civ.P. 26(a)(2)(B).
. Defendant's Reply Memorandum in Support of its Motion to Compel, p. 14. (Doc. 57).
. Defendant’s Memorandum in Support of its Motion to Compel, Exhibit 15. (Doc. 44) (emphasis added).
. Exhibit H to defendant's Reply Memorandum in Support of its Motion to Compel. (Doc. 57).
. Plaintiff's Response and Memorandum in Opposition to Defendant’s Motion to Compel, p. 11. (Doc. 54).
. UCB Film's Memorandum in Support of its Motion to Compel, p. 22 (Doc. 44) (The documents in question were identified during Mr. Selbasti’s deposition).
. While the court has been unable to identify the source of all the production requests discussed in the preceding sections of this Order, there appears to be no dispute regarding the propriety of the motion to compel with respect to documents in the possession and control of SFA, documents in the possession of SFT, electronic versions of documents, and letters from Messrs. Palmer and Basel to Mr. Selbasti requesting that he prepare an opinion letter. The plaintiff's only objection regarding the procedural appropriateness of the instant motion to compel is for the documents and materials relied upon by Mr. Selbasti in formulating his opinions, identified on page 22 of UCB Film's Memorandum in Support of its Motion to Compel.
. Plaintiff's Response and Memorandum in Opposition to Defendant's Motion to Compel, p. 10, n. 1 (Doc. 54).
. Id.
. Videotaped Deposition of Turgut Selbasti at 164:22-170:5, Exhibit 14 to UCB Film’s Memorandum in Support of its Motion to Compel. (Doc. 44).