Forcine Concrete and Construction Company v. MS Park Construction LLC

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
FORCINE CONCRETE AND
CONSTRUCTION COMPANY,
Plaintiff,
v.
MS PARK CONSTRUCTION
LLC, et al.,
Defendants.
CIVIL NO. 3:23-CV-02024
(LATELLA, M.J.)
MEMORANDUM
Currently before the Court are 9 filings totaling 81 pages (many
single-spaced and in a smaller font than required by our Local Rules)
plus 369 pages of exhibits relating to 3 separate discovery disputes. In
reviewing these submissions, many adages come to mind, but perhaps
none as germane as “what’s good for the goose is good for the gander.”
Plaintiff Forcine Concrete and Construction Company (“Forcine”) filed
an Amended Complaint nearly a year-and-a-half after filing its initial
Complaint, adding three additional defendants and two new claims of a
totally different nature than those asserted in the initial Complaint.
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Forcine now simultaneously complains that (1) Defendants’ responses to
its additional discovery requests are insufficient and that Forcine
should not be required to respond to any of the additional discovery
requests propounded by Defendants. This position is untenable.
Rather, as set forth herein, in light of the new defendants and new
claims raised by the Amended Complaint, we are constrained to again
extend the discovery deadline to afford both parties with an opportunity
to obtain the discovery necessary to prosecute and defend their claims.
I. 	PROCEDURAL HISTORY AND FACTUAL
BACKGROUND
Forcine initiated this matter by filing a Complaint naming only
one Defendant, MS Park Construction LLC f/k/a Research LLC (“MS
Park”) on December 6, 2023. (Doc. 1). The Complaint included four
counts: breach of contract, violation of the Pennsylvania Contractor and
Subcontractor Payment Act, quantum meruit, and unjust enrichment.
(Id.) Forcine alleges that MS Park was the general contractor on a
construction project for which Forcine, a subcontractor, provided
concrete work. (Id. 1 at ¶¶ 5-8). Following Forcine’s completion of the
contracted work, Forcine alleges that MS Park refused to pay for part of
the work performed. (Id. at ¶¶ 12-24).
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MS Park filed an Answer and Counterclaim on February 5, 2024.
(Doc. 4). Forcine filed an Answer to MS Park’s Counterclaim on
February 26, 2024. (Doc. 8). The parties consented to proceed before a
magistrate judge on March 6, 2024. (Doc. 10). Magistrate Judge Susan
Schwab issued a Case Management Order on March 21, 2024. (Doc.
12).
On June 27, 2024, Forcine filed a Motion to Compel Written
Discovery and Document Production and a corresponding motion to
extend the discovery deadline. (Docs. 13, 14). Judge Schwab issued an
Amended Case Management Order on June 28, 2024. (Doc. 15). She
also issued an Order denying Forcine’s Motion to Compel, reminding
the parties of her procedures for discovery disputes and directing the
parties to submit a joint letter, not more than three pages, outlining the
nature of their discovery disputes and their respective positions. (Doc.
16). Judge Schwab scheduled a telephone conference for July 29, 2024,
to address the dispute. (Id.).
On September 18, 2024, Patton Hazelton, LLC, a non-party,
requested a discovery conference after receiving a subpoena. (Doc. 19).
Judge Schwab conducted a telephone conference on that matter on
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October 10, 2024. (Doc. 20). She issued a Second Amended Case
Management Order on October 11, 2024. (Doc. 23).
Judge Schwab issued an Order on February 6, 2025, following a
telephone conference with the parties directing them to exchange a
settlement demand and offer and to report back to the Court at a later
date regarding the status of settlement negotiations. (Doc. 26).
On February 24, 2024, Judge Schwab issued an Order indicating
that Forcine submitted a letter raising discovery issues. (Doc. 27). She
instructed the parties to meet and confer to try and resolve the issues,
and if unsuccessful, for MS Park to submit a response by March 10,
2025. (Doc. 27). On February 26, 2025 MS Park filed a motion to
extend the time to complete discovery. (Doc. 28). Forcine concurred in
that motion. (Id.). Judge Schwab then issued a Third Amended Case
Management Order on February 28, 2025. (Doc. 29).
On March 12, 2025, Judge Schwab issued an Order referencing
the parties’ submission of letters regarding discovery disputes, and
directed the parties to confer in good faith and file a joint report on the
status of any remaining disputes. (Doc. 30).
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On April 24, 2025, Forcine filed a motion to extend the discovery
deadline (Doc. 34), which Judge Schwab granted (Doc. 36). On April 30,
2025, Judge Schwab issued an Order following a conference with the
parties discussing specific discovery issues and also permitting Forcine
to file an amended complaint. (Doc. 38).
Forcine filed an Amended Complaint on May 5, 2025 – 17 months
after it filed its original Complaint. (Doc. 39). The Amended Complaint
added three additional defendants: PNK Holdings, LLC, Andrey
Sharkov, and Mark Stiles. (Id.). In addition to the four claims set forth
in the initial complaint, Forcine added a count to “pierce the viel
[sic]/alter ego against PNK Holdings, Sharkov, and Stiles,” and a count
of fraud in the inducement against all Defendants. (Id. at 35, 40).
The case was reassigned to the undersigned magistrate judge on
June 10, 2025.1 	On July 14. 2025, Defendants filed a Motion to Dismiss
and supporting brief. (Docs. 44, 45).
1 On June 24, 2025, we issued a Notice to the Parties indicating that we
intended to continue to exercise the jurisdiction previously consented to
the parties unless any party raised an objection. (Doc. 42). No party
filed any such objection.
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On July 22, 2025, Forcine submitted a letter asking the Court to
enforce Judge Schwab’s April 30, 2025 Order as to an ongoing discovery
dispute. (Doc. 46). On that same date, Defendants filed a motion to
again extend the discovery deadline. (Doc. 47). Defendants indicated
such extension was necessary because Plaintiff’s Amended Complaint
added three additional defendants and two new claims, necessitating
additional discovery. (Id.). We scheduled a telephone conference for
August 1, 2025. (Doc. 48).
On July 28, 2025, Forcine filed a response in opposition to
Defendants’ Motion to Dismiss. (Doc. 50). Forcine also filed a brief in
opposition to Defendants’ Motion to Extend Deadlines. (Doc. 51). On
August 5, 2025, we entered an Order granting the motion to extend case
management deadlines. (Doc. 55). On August 6, 2025, Forcine filed a
Second Amended Complaint. (Doc. 56). The Second Amended
Complaint again included as defendants MS Park, PNK Holdings,
Andrey Sharkov, and Mark Stiles and included the same claims raised
in the Amended Complaint. (Id.)2.
2 The Second Amended Complaint was filed to correct a scrivener’s error
in the original Amended Complaint.
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Forcine filed a letter to the docket on August 8, 2025 indicating
that the parties were working on a proposed order to compel document
production. (Doc. 57). Forcine submitted a proposed order on August
13, 2025 (Doc. 58), which we entered on August 15, 2025 (Doc. 59).
On August 18, 2025, we entered an Order denying Defendants’
Motion to Dismiss the Amended Complaint as moot due to Forcine’s
filing of the Second Amended Complaint. (Doc. 60). Defendants filed a
Motion to Dismiss Counts of the Second Amended Complaint and
supporting brief on August 19, 2025. (Docs. 61, 62). Forcine filed a
Motion for an extension of time to respond to the Motion to Dismiss on
September 3, 2025 (Doc. 63), which we granted on September 4, 2025
(Doc. 64).
Forcine filed its Brief in Opposition to Dismiss Counts of
Plaintiff’s Amended Complaint on September 5, 2025. (Doc. 65).
Defendants filed a Reply Brief on September 22, 2025. (Doc. 66).
On October 6, 2025, Forcine filed a letter to the docket requesting
leave to file a sur-reply to the Motion to Dismiss. (Doc. 67). By Order
dated October 8, 2025, we permitted Forcine to file a short sur-reply.
(Doc. 69).
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On October 7, 2025,3 Forcine filed a letter requesting that the
Court enter a Show Cause Order as to why Defendants’ counterclaim in
this matter should not be dismissed with prejudice based upon
Defendants’ alleged failure to comply with the Court’s August 13, 2025
Order (“Plaintiff’s Show Cause Motion”). (Doc. 68). The Court Ordered
Defendants to respond to Plaintiff’s Show Cause Motion within 10 days.
(Doc. 70). Forcine then filed a Motion for a Protective Order on October
17, 2025 (“Plaintiff’s Motion for a Protective Order”). (Doc. 73).
Forcine filed its sur-reply in further opposition to the Motion to
Dismiss on that same date. (Doc. 74). Defendants filed a response to
Plaintiff’s Show Cause Motion on October 20, 2025. (Doc. 75).
Defendants also filed a Brief in Opposition to Plaintiff’s Motion for a
Protective Order and in Support of Defendants’ Motion to Compel
Discovery on October 31, 2025. (Doc. 77). On that same date,
Defendants filed a Cross-Motion to Compel Written Discovery and
Depositions from Plaintiff (“Defendant’s Motion to Compel”). (Doc. 78).
3 We note that the heading of this correspondence is dated October 2,
2025. (Doc. 68). However, it was not filed to the docket until October 7,
2025. (Id.).
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Forcine filed a response to Defendants’ October 20, 2025 Response
to Plaintiff’s Show Cause Motion on November 3, 2025 (Doc. 79).
Forcine filed a Reply Brief in Further Support of its Motion for a
Protective Order on November 14, 2025. (Doc. 80).
Defendants filed correspondence on November 18, 2025,
responding to Forcine’s Response to Defendants’ Response to Plaintiff’s
Show Cause Motion. (Doc. 81). On November 25, 2025, Defendants
filed a “Reply Brief in Support of Defendants’ Cross-Motion to Compel
Discovery.” (Doc. 82).
On February 2, 2026, Defendants requested a conference with the
Court to address case management deadlines in light of the pending
discovery motions. (Doc. 83). Forcine responded to that correspondence
on February 26, 2026. (Doc. 84).
While all of the above motions were pending, Forcine filed a
Motion for Summary Judgment and supporting brief on March 2, 2025.
(Docs. 85, 86).
The various discovery related motions and letters (Docs. 68, 73,
75, 77, 78, 79, 80, 81, and 82) are now ripe for review.
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II. 	LEGAL STANDARD
A. Scope of Discovery
The scope of discovery is defined by Rule 26(b)(1) of the Federal
Rules of Civil Procedure, which provides as follows:
(1) Scope in General. Unless otherwise limited by
court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party's claim or defense—including the existence,
description, nature, custody, condition, and
location of any documents or other tangible
things and the identity and location of persons
who know of any discoverable matter. For good
cause, the court may order discovery of any
matter relevant to the subject matter involved in
the action. Relevant information need not be
admissible at trial if the discovery appears
reasonably calculated to lead to the discovery of
admissible evidence.
Fed. R. Civ. P. 26(b)(1). As a consequence, courts often—and
appropriately—apply liberal treatment to discovery rules. 	See, e.g.,
Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 300 F.R.D. 225, 226 (M.D. Pa.
2014) (citing Great W. Life Assurance Co. v. Levithan, 152 F.R.D. 494,
497 (E.D. Pa. 1994)). Discovery is generally permitted of any items that
are relevant or may lead to the discovery of relevant information. 	Hicks
v. Big Brothers/Big Sisters of Am., 168 F.R.D. 528, 529 (E.D. Pa. 1996);
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Stabilus v. Haynsworth, Baldwin, Johnson, & Greaves, P.A., 144 F.R.D.
258, 265–66 (E.D. Pa. 1992) (when there is no doubt about relevance a
court should tend toward permitting discovery). Moreover, discovery
need not be confined to items of admissible evidence but may
encompass that which appears reasonably calculated to lead to the
discovery of admissible evidence. 	Callahan v. A.E.V., Inc., 947 F. Supp.
175, 177 (W.D. Pa. 1996); Momah v. Albert Einstein Medical Ctr., 164
F.R.D. 412, 417 (E.D. Pa. 1996). Although “the scope of relevance in
discovery is far broader than that allowed for evidentiary purposes, it is
not without its limits.” 	Stabilus, 144 F.R.D. at 265. The Court will not
permit discovery where a request is made in bad faith, unduly
burdensome, irrelevant to the general subject matter of the action, or
relating to confidential or privileged information. 	S.S. Fretz, Jr., Inc. v.
White Consol. Indus., Inc., No. 90–1731, 1991 WL 21655, at *2 (E.D. Pa.
Feb. 15, 1991).
It is well-established that rulings concerning the proper scope of
discovery and the extent to which discovery may be compelled are
within the Court's discretion. 	See Wisniewski v. Johns-Manville Corp.,
812 F.2d 81, 90 (3d Cir. 1987). The court's decision regarding the
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conduct of discovery, including whether to compel disclosure, will only
be disturbed on a showing of an abuse of discretion. 	See Marroquin-
Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983).
B. Standard for Motion to Compel
Rule 37 of the Federal Rules of Civil Procedure governs motions to
compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or
Discovery
(1) In General. On notice to other parties and
all affected persons, a party may move for an
order compelling disclosure or discovery....
Fed. R. Civ. P. 37(a). A party who has received evasive or incomplete
discovery responses may seek a court order compelling disclosures or
discovery of the materials sought. Fed. R. Civ. P. 37(a). “The moving
party must demonstrate the relevance of the information sought to a
particular claim or defense.” 	Montanez v. Tritt, Civ. No. 14-1362, 2016
WL 3035310, at *2 (M.D. Pa. May 26, 2016). “The burden then shifts to
the opposing party, who must demonstrate in specific terms why a
discovery request does not fall within the broad scope of discovery or is
otherwise privileged or improper.” 	Id. (citing Goodman v. Wagner, 553
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F. Supp. 255, 258 (E.D. Pa. 1982)). “Mere recitation of the familiar
litany that an interrogatory or a document production request is ‘overly
broad, burdensome, oppressive and irrelevant’ will not suffice.”
Momah, 164 F.R.D. at 417 (quoting Josephs v. Harris Corp., 677 F.2d
985, 992 (3d Cir. 1982)). However, once the objection has been properly
articulated, the burden rests with the party seeking discovery to show
that a discovery request lies within the bounds of Rule 26. 	Momah, 164
F.R.D. at 417. Then, the party opposing discovery must convince the
court why discovery should not be had. Id. (citing Amcast Indus. Corp.
v. Detrex Corp., 138 F.R.D. 115, 118–19 (N.D. Ind. 1991)).
C. Standard for Motion for Protective Order
Rule 26 provides a framework by which a party may seek a
protective order to limit the scope of discovery. Specifically, Rule
26(c)(1) provides as follows:
A party or any person from whom discovery is
sought may move for a protective order in the
court where the action is pending..... The motion
must include a certification that the movant has
in good faith conferred or attempted to confer
with other affected parties in an effort to resolve
the dispute without court action. The court may,
for good cause, issue an order to protect a party or
person from annoyance, embarrassment,
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oppression, or undue burden or expense,
including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place,
for the disclosure or discovery;
(C) prescribing a discovery method other than
the one selected by the party seeking
discovery;
(D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to
certain matters;
(E) designating the persons who may be
present while the discovery is conducted;
(F) requiring that a deposition be sealed and
opened only on court order;
(G) requiring that a trade secret or other
confidential research, development, or
commercial information not be revealed or be
revealed only in a specified way; and
(H) requiring that the parties simultaneously
file specified documents or information in
sealed envelopes, to be opened as the court
directs.
Fed. R. Civ. P. 26(c)(1). In this Circuit, the party seeking the protective
order bears the burden of showing that it is particularly needed to
obviate a significant harm; broad allegations of harm will not suffice.
Trans Pacific Ins. Co. v. Trans–Pacific Ins. Co., 136 F.R.D. 385, 391
(E.D. Pa. 1991) (citing Cipollone v. Ligget Group, Inc., 785 F.2d 1108,
1121 (3d Cir. 1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98
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L.Ed.2d 485 (1987)); Johnston Dev. Group, Inc. v. Carpenters Local
Union No. 1578, 130 F.R.D. 348, 352–53 (D.N.J. 1990); Frazier v. Se.
Pennsylvania Transp. Auth., 161 F.R.D. 309, 313 (E.D. Pa. 1995). If a
motion for a protective order is denied in whole or in part, “the court
may, on just terms, order that any party or person provide or permit
discovery.” Fed. R. Civ. P. 26(c)(2).
D. Standards for Sanctions
Rule 37(b) provides for various sanctions based upon a party’s
failure to comply with a court order regarding discovery or failure to
produce a witness. Fed. R. Civ. P. 37(b). The Rule provides:
(b) Failure to Comply with a Court Order.
(1) Sanctions Sought in the District Where
the Deposition Is Taken. If the court where the
discovery is taken orders a deponent to be sworn
or to answer a question and the deponent fails to
obey, the failure may be treated as contempt of
court. If a deposition-related motion is
transferred to the court where the action is
pending, and that court orders a deponent to be
sworn or to answer a question and the deponent
fails to obey, the failure may be treated as
contempt of either the court where the discovery
is taken or the court where the action is pending.
(2) Sanctions Sought in the District Where
the Action Is Pending.
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(A) For Not Obeying a Discovery Order. If a
party or a party's officer, director, or managing
agent--or a witness designated under Rule
30(b)(6) or 31(a)(4)--fails to obey an order to
provide or permit discovery, including an order
under Rule 26(f), 35, or 37(a), the court where
the action is pending may issue further just
orders. They may include the following:
(i) directing that the matters embraced in
the order or other designated facts be taken
as established for purposes of the action, as
the prevailing party claims;
(ii) prohibiting the disobedient party from
supporting or opposing designated claims or
defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the
order is obeyed;
(v) dismissing the action or proceeding in
whole or in part;
(vi) rendering a default judgment against
the disobedient party; or
(vii) treating as contempt of court the
failure to obey any order except an order to
submit to a physical or mental examination.
(B) For Not Producing a Person for
Examination. If a party fails to comply with an
order under Rule 35(a) requiring it to produce
another person for examination, the court may
issue any of the orders listed in Rule
37(b)(2)(A)(i)-(vi), unless the disobedient party
shows that it cannot produce the other person.
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(C) Payment of Expenses. Instead of or in
addition to the orders above, the court must
order the disobedient party, the attorney
advising that party, or both to pay the
reasonable expenses, including attorney's fees,
caused by the failure, unless the failure was
substantially justified or other circumstances
make an award of expenses unjust.
Fed. R. Civ. P. 37(b).
Additionally, Federal Rule of Civil Procedure 11 provides, in
relevant part, that every “pleading, written motion, and other paper
must be signed by at least one attorney of record,” and by “presenting to
the court a pleading, written motion, or other paper,” the attorney
signing it certifies that it is “not being presented for any improper
purpose,” and that the “claims, defenses, and other legal contentions are
warranted by existing law.” Fed. R. Civ. P. 11(a)-(b). Rule 11 also
provides the court with authority to impose sanctions, if, “after notice
and a reasonable opportunity to respond, the court determines that
Rule 11(b) has been violated.” Fed. R. Civ. P. 11(c)(1). The Rule
provides that “a motion for sanctions must be made separately from any
other motion and must describe the specific conduct that allegedly
violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). Finally, and pertinent
here, Rule 11 specifically provides: “This rule does not apply to
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disclosures and discovery requests, responses, objections, and motions
under Rules 26 through 37.” Fed. R. Civ. P. 11(d).
III. 	DISCUSSION
Before addressing the parties’ various motions, we are compelled
to note that in contravention of the Middle District of Pennsylvania
Local Rules of Civil Procedure, neither party attached the certifications
required pursuant to Local Rules 7.1 and 26.3. Our Local Rules provide
that all motions “shall contain a certification by counsel for the movant
that he or she has sought concurrence in the motion from each party,
and that it has been either given or denied.” M.D. Pa. LR 7.1.
Additionally, Local Rule 26.3 relates directly to discovery motions and
provides additional obligations upon parties filing discovery related
motions. That Rule states:
Counsel for movant in a discovery motion shall
file as part of the motion a statement certifying
that counsel has conferred with counsel for the
opposing party in a good faith effort to resolve by
agreement the issues raised by the motion
without the intervention of the court, together
with a detailed explanation why such agreement
could not be reached. If part of the issues raised
by the motion have been resolved by agreement,
the statement shall specify the issues so resolved
and the issues remaining unresolved.
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M.D. Pa. LR 26. Rule 7.1 references Rule 26.3, noting: “A certificate of
nonconcurrence does not eliminate the need for counsel to comply with
Local Rule 26.3 relating to conferences between counsel in all discovery
motions directed toward a resolution of the motion.” M.D. Pa. LR 7.1.
Chief Judge Brann has stated that “a party’s failure to provide [the
Rule 26.3] certification before bringing a discovery motion provides the
court with a freestanding reason to deny the motion.” 	Bolus v.
Carnicella, No. 4:15-CV-01062, 2020 WL 930329, at *3 (M.D. Pa. Feb.
26, 2020) (citing Han Tak Lee v. Tennis, No. 4:CV-08-1972, 2012 WL
2905384, at *3 (M.D. Pa. July 16, 2012)). He noted that this rule is
“designed to encourage professionalism and collegiality among litigators
and avoid unnecessary court intervention, protracted legal proceedings
and needless expense and fees. Zealous advocacy does not excuse a
belligerent and uncompromising approach to the discovery process.” 	Id.
(internal quotation omitted).
In this case, we must express our dissatisfaction with the parties’
failure to comply with these Rules. Neither Forcine nor Defendants
attached the certifications required pursuant to Local Rules 7.1 or 26.3
to any of their filings seeking affirmative relief relating to discovery
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disputes. (See Docs. 68, 73, 78). As demonstrated by Defendants’
response to Forcine’s Show Cause Motion, (Doc. 75), it appears as
though at least some of the parties’ disputes could have been addressed
by counsel simply picking up the telephone and calling opposing
counsel.4 	Nevertheless, while non-compliance with Rule 26.3 is
“certainly disfavored by this District,” the District “has shown some
leniency with litigants’ non-compliance on these and related measures.”
Bolus, 2020 WL 930329, at *4. Accordingly, we will not deny the
parties’ various motions based upon their collective failure to adhere to
our Local Rules.
4 By way of example, Plaintiff complains that an exhibit to the PNK
Holdings LLC Operating Agreement was not produced. (Doc. 68 at 6-7).
In response, Defendants indicated that the failure to provide the exhibit
was an oversight and represented that they provided the exhibit to
Forcine in conjunction with the filing of their response. (Doc. 75 at 4).
Rather than aggressive litigation, a simple collegial, professional phone
call could have avoided the necessity to turn to the Court for
intervention. Which compels another observation, the over-the-top and
unnecessarily accusatory language found in many of these filings is
counterproductive and serves as an obstacle to resolving even simple
disputes – which at times are not even disputes but rather
misunderstandings. Rather than attempting to show the Court whose
ax is bloodier, the parties would do better to demonstrate the capacity
for professionalism and collegiality and the capability of exercising
restraint in the choice of words.
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We turn first to Forcine’s Show Cause Motion.
A. Forcine’s Show Cause Motion
Forcine’s Show Cause Motion raises several alleged deficiencies
with respect to Defendants’ production of documents in response to our
Order dated August 13, 2025. (Doc. 68). Forcine first argues that the
submitted verification is deficient, arguing that our August 13, 2025
Order compelled each Defendant to submit a separate verification. (Id.
at 21). Second, Forcine argues that Defendants’ production is deficient
because it contains inadequate information regarding the “settlement
payment.” (Id. at 3). Third, Forcine claims that some additional bank
records are missing and those that were provided include improper
redactions. (Id. at 4-5). Fourth, Forcine asserts that the copy of the
Limited Liability Operating Agreement that Defendants produced was
missing the exhibits. (Id. at 7-8). Finally, Forcine claims that the
payroll records generated by a third-party data processing provider
includes missing data and pages that are in the incorrect order. (Id. at
7-8). 	We will consider each issue in turn.
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1. 	Sufficiency of Defendants’ Verification
Forcine asserts that the “clear language of the [August 15, 2025]
Order” required each Defendant to submit a separate verification. (Doc.
68 at 3; Doc. 79 at 2) (“The Court required all of the Defendants to
verify that they did not have any of the requested documents in their
possession.”). However, Forcine claims Defendants submitted only a
single verification from George Muraviev on behalf of PNK Holdings,
LLC, MS Park Construction, and PNK P1, LLC. (Doc. 68 at 2).
Language in the Muraviev affidavit provides that the corporate
defendants do not have any documents relating to the anticipated
profits for the project at issue, including pro forma documents. (Id.).
Forcine states, however, that Mark Stiles testified that he prepares his
own internal documents, including a pro forma. (Id.). Forcine argues
that because the verification “on its face” is “violative of the Court’s
Order,” the Court should “enter an Order to Show Cause and ultimately
dismiss MS Park’s counterclaim.” (Id. at 3).
Defendants respond by asserting that there is no language in the
Order requiring each Defendant to submit a separate verification. (Doc.
75 at 2). Accordingly, they maintain that they did not violate the
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August 15, 2025 Order. (Id.). Defendants also submitted as an Exhibit
an additional verification from Muraviev. (Doc. 75 at 7-8). In that
Verification, Muraviev confirmed that he was authorized by PNK
Holdings, LLC, MS Park Construction, LLC f/k/a Research, LLC, and
PNK P1, LLC to provide documents in response to the Court’s August
15, 2025 Order. (Id. at 7). He further stated that he also conducted a
diligent search of documents on behalf of Defendant Sharkov and
Defendant Stiles. (Id.). He then verified that none of the Defendants
were in possession of certain documents, including pro formas. (Id.).
Defendants also attached a Verification of Mark Stiles. (Doc. 75 at 9).
Defendant Stiles stated that he reviewed the Court’s August 15, 2025
Order and authorized Muraviev to review, locate, and produce any and
all documents responsive to that Order. (Id.). He further stated that,
“in an attempt to cooperate, [he is] producing directly to Plaintiff, a
reward calculation sheet.” (Id.).
Forcine argues that Defendants’ belated “attempt to cure” their
“defiance of the Court’s Order” is insufficient and that it has questions
regarding the “reward calculation sheet.” (Doc. 79 at 2). Forcine notes
that none of the documents produced by Defendants is entitled “reward
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24
calculation sheet.” (Id.). One document is entitled “Calculation Sheet,”
but was not produced in its native format and has a total that does not
exactly match the Patton Contract price. (Id.).
First, Forcine’s assertion that we required each Defendant to
submit a separate verification is not supported by the text of our Order.
The Order states: “If Defendants do not have any of the above
documents within their possession, they must affirmatively state so in a
verified response.” (Doc. 59 at 5). The use of “a” in that sentence
indicates that a single verification was contemplated. We cannot,
therefore, accept Forcine’s interpretation of our Order which is contrary
to its plain language, that the submission of a singular verification
violated our Order or warrants dismissal of MS Park’s counterclaim.
2. Sufficiency of Settlement Payment Related Information
and Banking Records and Propriety of Redactions
Forcine next argues that the bank records produced by
Defendants regarding the settlement payment from MS Park to the
purchaser of the property, Patton Hazleton, LLC, were insufficient.
(Doc. 68 at 3). Forcine states that the bank statements for the account
ending in 3905 do not identify “the names of the account holders and
the final four digits of the account.” (Id.). Forcine also alleges that MS
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25
Park failed to include a privilege log. (Id.). Additionally, Forcine
indicates that no bank statements were produced for accounts ending in
0372, 2581, 5932, and 6963. (Id. at 4). Further, it claims Defendants
only produced two bank statements for account ending in 6963. (Id.)
As to account ending in 6955, Defendants produced only 2 bank
statements and the statements are not legible in certain areas and
Defendants produced only two months of statements for account ending
in 3260. (Id. at 5). Finally, Forcine claims that Defendants’
explanation as to the redactions of the bank statements is insufficient.
(Id. at 5-6). Forcine argues that Defendants failed to provide a privilege
log or verify under oath that the redactions were related to other
projects. (Id.).
In response, Defendants assert that they complied with the
August 15, 2025 Order by producing records that “related to the
distribution of the proceeds from the sale of the property.” (Doc. 75 at
2-3). Defendants claim that Forcine is now seeking “additional
documentation and information relating to money transfers between
the PNK entities, most of which are wholly unrelated to the settlement
payment to Patton and this litigation as a while.” (Id.). Defendants
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26
argue that the August 15, 2025 Order “does not entitle the Plaintiff to
all of the bank account statements, records and information of the
Defendants.” (Id. at 3). Nevertheless, in a “show of good faith and
cooperation,” Defendants produced bank statements for 9 additional
accounts, without waiving its position that it previously fully complied
with the Court’s August 15, 2025 Order. (Id.).
Notwithstanding Defendants’ specific statement that they
complied with the August 15, 2025 Order, Forcine asserts that
“Defendants admit that they failed to produce all documents responsive
to the Court’s Order.” (Doc. 79 at 4). Forcine also states that
Defendants’ characterization of the “intent” of the Order to apply to only
financial records related to the distribution of the proceeds of the sale of
the property was incorrect as the Order “expressly compelled
Defendants to produce more than that.” (Doc. 79 at 4).
First, we note that Forcine’s claim that “the bank statements for
AE 3905 for the month of October 2023 do not identify ‘the name of the
account holders and final four digits of the account…” is contradicted by
Forcine’s own statement. The sentence begins with reference to “AE
3905,” and so, it is clear Defendants did provide the last four digits of
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27
the account. In their Response, Defendants indicate that MS Park is
the owner of the account ending in 3905. (Doc. 75 at 3). Thus, we deem
the first issue to be resolved.
As to the sufficiency of the production, we find that Defendants’
interpretation of the “intent” of the Order is correct. With respect to
bank records, the Order provides as follows:
To the extent they exist and have not been
produced before, all documents related to the
distribution of the proceeds from the sale of the
property, including but not limited to the
following:
i. 	Bank records . . . showing the flow of funds
from the purchaser to any individual or
entity;
ii. 	Bank records . . . showing the flow of funds
between any “PNK Group” entity;
iii. Bank records . . . showing the flow of funds
between any PNK Group entity and any
individuals . . .
iv. Bank records for all PNK Group entities
and individuals . . . that depict any transfer
of funds related to the $212,000 settlement
payment, including bank account
statements for all entities and individuals
for the months of October 2023 through
March 2024;
v. 	Bank statements, cancelled checks, and
wire transfer records . . . that relate to the
purchase of the property, the construction
of improvements at the Property or
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28
payment received from Patton Hazleton for
purchase of the Property;
vi. Bank records showing the initial
capitalization of Research LLC and MS
Park Construction, LLC;
vii. Documents reflecting the profit realized on
the sale of the Property . . .
(Doc. 59 at 2-3) (emphasis added). It is clear from language of the
Order that we never contemplated Defendant producing bank records
beyond those specified. That Order should not be construed as
permitting Forcine to have unfettered access to all of Defendants’ bank
records. In fact, we remind Forcine that our August 15, 2025 Order
followed Judge Schwab’s April 30, 2025 Order (Doc. 38), which
specifically contemplated that entries related to other projects would be
redacted.
In response to Forcine’s Motion for Show Cause Order, Defendants
produced additional bank records for nine accounts. (Doc. 75 at 4).
Defendants assert that they produced records for each of the accounts
identified in Forcine’s Motion for Show Cause Order, specifically,
accounts ending in 0372, 2581, 5923, 5915, 6963, 6955, and 3260. (Doc.
75 at 4).
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Our Order required Defendants to produce “documents that are
sufficiently legible to see the accounts that sent/received the funds.”
(Doc. 59 at 2 n.1). To the extent Defendants have not provided a legible
copy of the statement for account ending in 6955 referenced on page 5 of
Forcine’s Motion for Show Cause Order, they are directed to do so.
Finally, we deem Defendants’ explanation as to the redactions to
be sufficient. Nowhere in our Order did we require Defendants to verify
under oath that redactions were related to other projects. Judge
Schwab previously instructed: “defense counsel shall provide a log of the
redactions of the banking records setting forth the reason/reasons for
the redactions, and if a reason is that the redacted entry is unrelated to
the project at issue in this case but related to another project, the
defendant shall provide the name of the other project.” (Doc. 38 at ¶ 2).
The explanation of redactions provided by counsel for Defendants
is sufficient. Defendants identify the other projects that the entries
relate to as well as the other bases for redactions including payments
for equipment purchases and that are part of MS Park’s fixed assets.
Counsel represents that “[A]ll banking entries related to the Humboldt
project are produced without redaction [and] . . . none of the redacted
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30
payments went to PNK affiliated entities.” (Doc. 68 at 6). We fail to see
how discovery of Defendants’ banking records beyond those Ordered
and produced are “tailored to the issues involved in [this] particular
case.” 	See Fassett v. Sears Holding Corp., 319 F.R.D. 143, 149 (M.D. Pa.
2017).
3. 	Sufficiency of the Produced Operating Agreement
Next, Forcine claims that Defendants produced an incomplete
LLC Operating Agreement for PNK Holdings, LLC. (Doc. 66 at 6).
Specifically, Forcine asserts that the exhibits to the Operating
Agreement were not produced. (Id.). Forcine also indicates that
Muraviev’s Verification states that Defendants produced the Articles of
Incorporation for PNK Holdings, LLC, but no document entitled
Articles of Incorporation was produced.5 	(Doc. 68 at 7).
In response, Defendants noted that the failure to include Exhibit
B to the Operating Agreement was a “minor oversight” and that they
produced Exhibit B in conjunction with the filing of their Response.
5 Forcine acknowledges that PNK Holdings is an LLC, and so,
questioned why Articles of Incorporation would have been filed. (Doc.
68 at 7).
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31
(Doc. 75 at 4). Defendants also clarified that Mr. Muraviev’s statement
that Articles of Incorporation were being produced was a “partial
misstatement” as Articles of Incorporation do not exist, but the
Certificate of Formation for PNK Holdings, LLC was produced. (Doc. 75
at 2).
As Defendants have now produced Exhibit B, this issue is
resolved.
4. 	Sufficiency of the Payroll Data
Finally, Forcine complains they produced pages that “could not be
‘generated’ from their accounting system.” (Doc. 68 at 7). It includes an
example of the message that appears on several pages of the production:
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(Doc. 68 at 7)6. Forcine also takes issue with the order in which
Defendants produced the payroll records. (Id.).
In response, Defendants assert that they obtained the payroll
summaries from their ADP system. (Doc. 75 at 4-5). Because the
“production was created through ADP, not by any of the Defendants,”
they claim they produced the documents as they were stored. (Id.).
They assert that there is no other documentation to obtain and that
they cannot produce what does not exist. (Id.). Further, Defendants
indicate that the production is “entirely sufficient for any conceivable
purpose in this litigation” as the “summaries provided clearly show the
number of employees at MS Park Construction, their identities, their
respective positions, and the wages they were paid.” (Doc. 81 at 3).
Defendants are correct that we cannot compel a party to produce
documents that do not exist. 	Wells v. JPC Equestrian, Inc., No. 3:13-
CV-2575, 2014 WL 5641305, at *4 (M.D. Pa. Nov. 4, 2014) (“It is an
6 Following Defendants’ Response to this Motion, Forcine filed an
additional letter and argued that this error message violates
Defendants’ obligation to produce documents in a “legible manner.”
(Doc. 79 at 5). We disagree with Forcine’s characterization of this
message as rendering the production illegible.
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33
obvious truism that a court should not enter an order compelling a
party to produce documents where the documents do not exist.”). Nor
can the court compel the creation of evidence by parties who attest that
they do not possess the materials sought by an adversary in litigation.
See, e.g., AFSCME District Council 47 Health and Welfare Fund v.
Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL
5186088 (E.D. Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698,
2009 WL 975251 (M.D. Pa. April 9, 2009); Lawson v. Love's Travel
Stops & Country Stores, Inc., No. 1:17-CV-1266, 2019 WL 5622453, at
*4 (M.D. Pa. Oct. 31, 2019). Accordingly, given Defendants’
representations that no further documentation exists as to the payroll
data, we are unable to compel any further production. And in any
event, again, based upon the representation of Defendants, the
information produced appears to be sufficient.
5. 	Forcine’s Request that Defendants’ Counterclaim be
Dismissed
Forcine argues that dismissal of Defendants’ Counterclaim
pursuant to Fed. R. Civ. P. 37(b)(2) is appropriate based upon
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34
Defendants’ “failure to comply with this Court’s August 13, 2025 Order
compelling the production of documents.”7
Defendants argue that dismissal is a “drastic sanction” requiring a
showing of willfulness, bad faith, or substantial fault, which are not
present here. (Doc. 75 at 4). Further, Defendants assert that
application of the Poulis factors demonstrates that dismissal is not
appropriate. (Id.) (citing Poulis v. State Farm Fire and Cas. Co., 747
F.2d 863, 868 (3d Cir. 1984) (discussing factors for courts to consider in
deciding whether to dismiss complaint or claim as sanctions including
(1) the extent of the party 's personal responsibility; (2) the prejudice to
the adversary caused by the failure to meet scheduling orders and
respond to discovery; (3) a history of dilatoriness; (4) whether the
conduct of the party or the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which entails an
analysis of alternative sanctions; and (6) the meritoriousness of the
claim or defense).
7 We understand Forcine to be referencing our August 15, 2025 Order.
(Doc. 59).
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35
Defendants claim that they “vehemently oppose the contention
that [they] violated the August 15, 2025 Order.” (Id.). They argue that
there is no prejudice to Forcine, as the discovery sought is either
unrelated or only tangentially relate to this litigation. (Id.). They
argue there is substantial merit to their counterclaim, which is that MS
Park was damaged due to Plaintiff’s failure to perform in accordance
with the subcontract. (Id). Defendants assert that dismissal of the
counterclaim would contravene judicial policy that cases should be
resolved on the merits. (Id.).
Forcine replies that dismissal is warranted based upon
Defendants’ bad faith. (Doc. 79 at 5). It asserts such sanctions are
necessary to “put an end to Defendants’ attempts to unnecessarily
increase the cost of this litigation.” (Id, at 5). It also claims that
dismissal is necessary to deter future misconduct and uphold the
integrity of the federal court system. (Id. at 6-7). Forcine then applies
the Poulis factors. Forcine argues that Defendants bear personal
responsibility for the failure to comply with Court orders. (Id. at 8). It
asserts prejudice as it proceeded with depositions of Defendant
witnesses without the requested discovery and now, must seek to either
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36
extend discovery again in order to re-depose them or proceed without
deposition discovery on critical issues. (Id). Additionally, Forcine
claims Defendants’ conduct has greatly increased the cost of litigation.
(Id.). Forcine also argues that Defendants have a repeated history of
dilatory conduct in this case. (Id.). Forcine claims that Defendants
engaged in bad faith conduct, citing an affidavit of Andrey Sharkov
where he admitted that he “deliberately changed his mobile phone
number and did not retain data from his messaging applications.” (Id.
at 9). Forcine argues that no other sanction will be effective and that
Defendants claim is unmeritorious. (Id.).
Forcine’s request to dismiss Defendants’ counterclaim will be
denied. The parties’ submissions reveal that Defendants made a
substantial effort to comply with our August 15, 2025 Order. The
deficiencies identified by Forcine were not the type that warrant the
severe sanction of dismissal and further, many of the purported
deficiencies have been remedied.
While we acknowledge that Defendants’ production was imperfect
and that Defendants bear personal responsibility for some of the
deficiencies identified by Forcine, we do not construe any of those
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37
violations as demonstrating a willful violation of our August 15, 2025
Order. Further, we do not believe Forcine sustained any significant
prejudice based upon Defendants’ conduct. Indeed, Forcine decided to
file an Amended Complaint on May 5, 2025, one year and five months
after filing its initial Complaint, adding three additional defendants
and two entirely new claims. (See Doc. 56). The discovery at issue in
Forcine’s Motion for Show Cause Order relates to those new claims.
Forcine cannot credibly be heard to complain of a delay created by its
own making. And further, had Forcine complied with our Local Rules
regarding the requirement to confer meaningfully with the opposing
party prior to filing a discovery motion, it likely would have obtained
the additional documents produced by Defendants more quickly and
avoided many of the costs incurred in the filings associated with this
Motion.
While Defendants may have a history of dilatory conduct in this
litigation, as set forth below, we find Forcine’s conduct more egregious
and decline, therefore, to find that this factor weighs in favor of
dismissal here. As discussed supra, we do not believe Defendants acted
in bad faith. To the contrary, they made a meaningful effort at
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38
compliance that included some minor deficiencies, which have been
rectified. While other sanctions may be available, we do not deem any
sanctions necessary. Finally, at this juncture, we are unable to say that
Defendants’ counterclaim is unmeritorious. 	See Briscoe v. Klaus, 538
F.3d 252, 263 (3d Cir. 2008) (“Generally, in determining whether a
plaintiff's claim is meritorious, we use the standard for a Rule 12(b)(6)
motion to dismiss for failure to state a claim.”). Based upon this
assessment of the Poulis factors, we will deny Forcine’s request to
dismiss Defendants’ counterclaim.
B. Forcine’s Motion for a Protective Order and Defendants’
Cross-Motion to Compel Written Discovery and
Depositions
In an additional letter to the docket, titled “Motion for a Protective
Order,” Forcine seeks a protective order “preventing Defendants . . .
from using discovery for gamesmanship purposes; namely adding a new
law firm to represent the Defendants to justify resending written
discovery after the parties had completed that stage of litigation.” (Doc.
73 at 1). Forcine also “requests that the Court sanction Defendants and
their attorneys pursuant to Federal Rule of Civil Procedure 11(c) as a
result of their conduct.” (Id.).
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In response to Forcine’s Motion for a Protective Order, Defendants
filed a separate “Cross-Motion to Compel Written Discovery and
Depositions from Plaintiff” (Doc. 78) and filed a single brief both in
opposition to Plaintiff’s Motion for a Protective Order and in Support of
its Motion to Compel Discovery (Doc. 77).8
Because of the significant overlap in these two motions, we will
address them together.
1. 	Defendants’ Written Discovery
Forcine asserts that Defendants served an additional set of
Interrogatories and Requests for Production of Documents on
September 18, 2025. (Id. at 2). Forcine claims the discovery requests
8 Forcine correctly points out that our Local Rules provide that a brief
may address only one motion. (See Doc. 80 at 1 n.1). We note, however,
that Forcine is likewise guilty of failing to comply with various Local
Rules. 	See, e.g., M.D. Pa. LR 5.1 (typeface shall not be smaller than 14
point word processing font and text must be double spaced); M.D. Pa.
LR 7.1 (all motions must be written, include a certificate of concurrence,
and be accompanied by a form order); M.D. Pa. LR 7.5 (within fourteen
days of filing a motion, the party filing the motion shall file a brief in
support thereof); M.D. Pa. LR 7.8 (regarding content of briefs); LR 26.3
(requiring good faith conference regarding discovery disputes prior to
filing discovery motions). We do not condone either party’s disregard of
our Local Rules and expect compliance with all Local Rules going
forward.
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40
were “largely duplicative” of requests served by MS Park over a year
and a half ago, unnecessary, overly broad, and not proportional to the
needs of the case. (Id.). Forcine asserts that “the fact that Defendants
waited years to serve this substantial amount of discovery requests, and
only after obtaining five discovery extensions supports that
Defendants’ requests for this broad scope of discovery is merely an
effort to harass Forcine and not necessary to address the claims and
defenses at issue between the parties.” (Doc. 73 at 6) (emphasis in
original).
Forcine asserts that “in a good faith effort to avoid motion
practice,” it “wrote to Defendants and requested that they withdraw the
requests.”9 	(Doc. 73 at 6). In response, Forcine claims that Defendants
“doubled-down on their harassing behavior by sending 23 additional
document requests” on October 3, 2025. (Id.). Without identifying any
9 Forcine’s assertion that it engaged in a good faith effort is belied by its
attached correspondence where it simply demands that Defendants
completely withdraw all served discovery. (Doc. 73 at 10; 73-1 at 22) (“I
am writing . . . to demand that Defendant . . . withdraw its excessive
and unnecessary discovery requests served on September 18, 2025.”).
This can hardly be construed as satisfying the “good faith effort”
contemplated by Rule 26.3 to “resolve by agreement the issues raised by
the motion without intervention of the court.” M.D. Pa. LR 26.3.
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specific requests, Forcine claims that the additional document requests
are “largely duplicative,” and “not relevant or proportional to the needs
of the case.” (Id.). In support of its Motion for a Protective Order,
Forcine cites Fouad v. Milton Hershey School and Trust, 1:19-CV-253,
2020 WL 3265245, at *7 (M.D. Pa. June 17, 2020), stating that this
Court has granted protective orders under similar situations where a
party propounds excessive discovery requests. (Doc. 73 at 8). Forcine
also cites Nesselrotte v. Allegheny Energy, Inc., CIVA 06-01390, 2008
WL 1925107, at *2 (W.D. Pa. Apr. 30, 2008), in support, claiming that
courts within this Circuit have prevented parties from obtaining
additional discovery when it fails to offer good cause for delaying the
issuance of written discovery. (Id.).
With respect to their written discovery requests, Defendants note
that Plaintiff amended its Complaint on May 5, 2025, to add additional
defendants as well as additional claims and included 159 paragraphs of
allegations in support of its new causes of action. (Doc. 77 at 11).
Defendants assert that Defendant PNK propounded discovery on
September 18, 2025, in furtherance of its effort to provide a defense to
these new allegations and causes of action and that Defendant Sharkov
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42
propounded his own request for document production on October 3,
2025. (Doc. 77 at 11). Defendants claim that these discovery requests
related directly to Plaintiff’s claims, including documents relating to
Plaintiff’s work on the project; Plaintiff’s qualifications; Plaintiff’s
experience pouring concrete; Plaintiff’s claims for damages; and
Plaintiff’s allegations as to fraud. (Id.). In response, Plaintiff
“blanketly objected to the requests, stating in . . . correspondence that
Plaintiff believed the requests were unnecessary, cumulative, and
duplicative and demanding that Defendant withdraw the requests.”
(Id.). Defendants distinguish Nesselrotte, noting that in that case, the
deadline for the party to respond to discovery was after the discovery
period and the court had previously warned that there would be no
additional discovery extensions. (Doc. 77 at 11-12) (citing 2008 WL
1825107, at *1).10
10 Of note, Defendants argue, in a footnote, that “the ruling in Fouad v.
Milton Hershey Sch. & Tr.,” 1:19-CV-253, 2020 WL 3265245, at *1
(M.D. Pa. June 17, 2020), “is also inapplicable to this action.” (Doc. 77
at 12 n.2). We could not disagree more. In Fouad, Magistrate Judge
Carlson considered 15 docket entries relating to discovery disputes and
stated:
The parties have conducted this litigation in a
bitter and acrimonious fashion, taking every
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Defendants acknowledge that “some subject areas may overlap
naturally with prior discovery,” but argue that “this overlap is the
result of Plaintiff having repleaded existing issues under new legal
theories, not because of Defendants duplicating work.” (Doc. 77 at 12).
Defendants assert that the new requests are “’more specific, seeking
certain documents, communications, and information.” (Id.). They
further state: “[A]s Defendants’ counsel previously advised, if Plaintiff
has already produced such documents and information, there is no
harm to Plaintiff simply responding that Plaintiff has already provided
all responsive documents. In fact, making a simple statement to that
effect is relatively easy and would fully satisfy its obligations.” (Id.).
We note that the two sets of additional discovery requests Forcine
complains of were served by Defendants PNK Holdings, LLC (Doc. 73-1
at 2-20) and Andry Sharkov (Doc. 73-1 at 31-37) by attorneys who
opportunity to engage in a mutually caustic
dialogue resulting in dysfunction and strife which
is antithetical to the goals of our legal system –
‘the just, speedy, and inexpensive determination
of every action and proceeding.’
Fouad, 2020 WL 3265245, at *1 (citing Fed. R. Civ. P. 1). That passage
could apply here with equal force where we are considering 9 filings
relating to contentious and acrimonious discovery disputes.
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44
entered their appearances after the filing of the Amended Complaint.
(Docs. 43, 52, 53). Defendants PNK Holdings, LLC and Andry Sharkov
were not named in Plaintiff’s original Complaint. (See Doc. 1). Thus,
they were not parties to the matter when Defendant MS Park’s previous
discovery was served. The assertion that individuals and entities
named as defendants in a lawsuit are not entitled to serve their own
discovery to develop their own defenses and are instead bound by the
discovery served by a different defendant regarding an earlier iteration
of a complaint, when they were not parties to the litigation is offensive
to notions of fair play and justice.
Forcine made the decision to file an Amended Complaint 17
months into this litigation, adding three additional defendants, two new
claims of an entirely different nature than those included in its original
Complaint, and 159 additional paragraphs of allegations. Defendants
are entitled to serve relevant discovery as they see fit in order to
develop defenses in this litigation. They are likewise entitled to retain
counsel of their choosing. While Forcine is entitled to develop and
control its strategy in this matter, Defendants are entitled to do the
same. Defendants – and not Forcine – will determine what discovery is
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45
necessary to inform their defenses and will retain counsel as they see
fit.
We are thus troubled by Forcine’s conduct in unilaterally refusing
to respond to any of the Defendants’ September 18, 2025 or October 3,
2025 discovery requests. To the extent Forcine already produced all
documents in its possession responsive to certain requests, it could have
simply said so in its responses to those requests. And Defense counsel
pointed this out in response to Forcine’s unreasonable demand that
Defendants withdraw all discovery. (Doc. 73-1 at 29). Accordingly,
Forcine’s Motion for a Protective Order as to duplicative requests is
denied.
And to the extent Forcine believed certain requests were
irrelevant, it could have objected to those requests on that ground.
Seeking a protective order providing that they do not have to answer
any of the discovery requests by only citing a few examples of allegedly
problematic requests is not appropriate. Further, we note that – given
the broad scope of discovery – of the specific requests that Forcine
identified, almost all appear to be relevant to the claims and defenses at
issue here. We will address each specifically:
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• 	A description of all the projects that Forcine produced over the
past ten years that used Ductilcrete technology
Forcine’s experience with Ductilcrete is relevant to the claims and
defenses at issue in this litigation. 	(See e.g., Doc. 56 at ¶ 14 ; Doc. 4 at
¶¶ 84-104). Further, we decline to find that this request is overly broad
in scope in light of the fact that Forcine previously requested that MS
Park “identify and describe every construction project that MS Park has
managed or constructed that involved the installation of a Ductilcrete
slab” without any limitation as to time. (See Doc. 13 at 29, Request No.
7).
• 	All documents and communications relating to any warranty
claims or repairs on all such projects in the last ten years
Forcine’s communications relating to warranty claims or repairs
on projects involving Ductilcrete over the past ten years are clearly
relevant here, where the dispute relates to the quality of the work
involving Ductilcrete. (See Doc. 4 at ¶¶ 84-104; Doc. 56 at ¶14). We do
not deem the scope of time to be unreasonable.
• 	All project files related to any other project where Forcine placed
concrete during the month of November for the last five years;
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Defendants maintain that Forcine’s concrete work on the Project
began in November, and so, Forcine demanded that MS Park pay
additional for “winder concrete.” (Doc. 4 at 10, ¶ 88). Forcine claims
that “[p]er industry standards, “cold weather” concrete procedures were
required. (Doc. 8 at 5, ¶ 89). It is therefore clear that the use of
concrete during November and Forcine’s experience with the same is
relevant to the parties positions’ and claims.
• 	A description of how, and documents related to, the funds received
from MS Park for the Project were allocated, such as the
distribution of dividends to any owner;
It is not clear from the pleadings that this request is relevant to
the claims or defenses in this matter.
• 	Forcine’s internal analysis of the root cause of failures on the past
ten (10) other projects where Forcine used Ductilcrete and ‘defects’
occurred.
Again, this request regarding Forcine’s past experiences with
projects involving Ductilcrete and any associated defects is relevant to
the claims and defenses at issue here. (See Doc. 4 at ¶¶ 84-104; Doc. 56
at ¶14). We do not deem the scope to be unreasonable.
• 	A description of the method Forcine used to assess the percentage
of project completion in connection with Payment Application No.
8;
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Forcine alleges that MS Park failed to pay it for the work it
performed on the Project, and identifies certain payment applications
that MS Park has not paid. (See Doc. 56 at ¶29). This includes
payment application number 8. (Id.). Accordingly, the basis for
Payment Application Number 8 is relevant to Forcine’s claim for
damages. It bears noting that Forcine served a nearly identical request
on Defendants. (See Doc. 13 at 29, Request No. 10) (“Provide a complete
itemization of all damages that MS Park claims in this Action, setting
forth all the amounts of all claimed damages and the basis for the
calculation of said amounts) (emphasis added).
• 	All pleadings and other documents related to all other unrelated
legal proceedings in which Forcine is a party;
This request does not appear relevant to the claims or defenses at
issue in this litigation.
• 	Documents related to Forcine’s ‘warranty claim rate’ for
Ductilcrete projects over the past ten years;
This request regarding Forcine’s past experiences with projects
involving Ductilcrete and any claims made under warranties relating to
the same is relevant to the claims and defenses at issue here. (See Doc.
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4 at ¶¶ 84-104; Doc. 56 at ¶14). We do not deem the scope to be
unreasonable.
• 	Internal analysis documents related to the past five projects
where defects occurred on other projects using Ductilcrete.
Again, this is clearly relevant to the issues in this litigation and
the scope is not unreasonable.
The requests set forth above are the only specific requests
identified by Forcine as irrelevant or overbroad. We decline to comb
through the various requests to determine relevance on a request-by-
request basis. Forcine’s Motion for a Protective Order on this basis is
denied. To the extent it deems a specific request irrelevant, it should
object accordingly. In doing so, however, we remind Forcine of the
“broad” scope of discovery and instruct that it be guided accordingly in
responding to Defendants’ discovery requests.
Defendants’ Motion to Compel Forcine to provide responses to
Defendants’ written discovery requests dated September 18, 2025 and
October 3, 2025 are granted.
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2. Depositions of Plaintiff Witnesses
Forcine seeks a protective order providing that it does not have to
present its witnesses “at the 11th hour for depositions due to
Defendants’ dilatory conduct.” (Doc. 73 at 8). Forcine asserts that
Defendants have already taken the depositions of Forcine’s Vice-
President, Forcine’s Project Manager, and Forcine’s Superintendent for
the Project. It argues that Forcine should not also have to produce its
President, which would be duplicative of the information already
obtained from previous depositions. (Id.). Further, Forcine claims that
Defendants scheduled and unilaterally cancelled third-party witness
Derek Cressman of Durable Surfaces’ deposition multiple times without
any legitimate justification. (Id. at 9). Similarly, Forcine states that
Defendants also cancelled the deposition of their expert, Chris Wright,
at the last minute and without any legitimate justification. (Id.).
In response, Defendants assert that the prior rescheduling of the
depositions was “due to Defendants’ expert conducting testing on the
floors at the warehouse and providing analysis that would assist their
counsel in preparing for the depositions of the individuals who were
involved in repairing the defective floors.” (Doc. 9 at 16). Defendants
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claim that “orders completely prohibiting depositions represent
extraordinary relief that courts grant only in exceptional
circumstances.” (Doc. 77 at 10) (citing United States v. Mariani, 187
F.R.D. 447 (M.D. Pa. 1998)).
Forcine replied to Defendants’ response, claiming that Defendants
“cancelled depositions five times, of Brian Forcine and non-party
Durable Surface’s witnesses Chris Wright and Darren Cressman, for no
reason other than their refusal to timely prepare for the depositions.”
(Doc. 80 at 2). Forcine includes a timeline for each witness at issue. It
claims that the parties scheduled Brian Forcine’s deposition for
February 13, 2025, but Defendants unilaterally cancelled it on
February 11, 2025. (Id. at 4-5). Forcine claims to have offered several
additional dates, but the parties never ultimately agreed. (Id.). The
parties scheduled Derek Cressman’s deposition for July 10, 2025, but
Defendants unilaterally cancelled the deposition on July 9, 2025. (Id. at
5). On July 23, 2025, Defendants scheduled Cressman’s deposition for
July 25, 2025. (Id.). Forcine objected to the untimely notice. The
parties agreed on September 22, 2025, but Defendants unilaterally
cancelled the deposition on September 17, 2025. (Id.). Finally, the
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parties agreed that Chris Wright’s deposition would occur on September
24, 2025, but Defendants cancelled the deposition on September 17,
2026. (Id.). Further, Forcine claims that the amendment of their
Complaint does not justify these depositions, because “Defendants have
all of the facts and evidence relating to their duplicitous scheme in their
own possession, custody, and control.” (Id. at 3).
Defendants replied further, arguing that Forcine exaggerated the
number of rescheduled depositions. (Doc. 82 at 2). They do not,
however, provide any specific response to the timeline provided by
Forcine. Defendants argue that the Durable Surfaces witnesses, Chris
Wright and Derek Cressman, are key witnesses as to the crux of the
case: “whether Forcine performed its obligation under the Subcontract
by providing a defect-free cement slab.” (Id. at 3). Further, Defendants
claim that Brian Forcine has relevant information as to performance
under the Subcontract, adding that he should have relevant knowledge
of the Project, the contract, the work performed, the remedial actions
taken, and knowledge relevant to the change orders and payment
disputes. (Id. at 3-4). Further, Defendants claim that Brian Forcine is
“likely the only witness who has knowledge of the new facts contained
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in Plaintiff’s Second Amended Complaint.” (Id. at 4). Defendants
assert that Forcine has, in its Second Amended Complaint, alleged
fraud in the inducement. (Id. at 4). Accordingly, Brian Forcine will
have relevant information as to the alleged misrepresentations and
Forcine’s alleged reliance upon those misrepresentations.
As Defendants have observed, “it is rare for a court to issue a
protective order that prohibits a deposition.” 	Brockway v. McCreary,
No. 4:18-CV-01258, 2019 WL 13551037, at *1 (M.D. Pa. June 12, 2019)
(quoting Mariani, 178 F.R.D. at 448); see also, Motsinger v. Flynt, 119
F.R.D. 373, 378 (M.D. N.C. 1988) (“Absent a strong showing of good
cause and extraordinary circumstances, a court should not prohibit
altogether the taking of a deposition.”). A party moving for such relief
bears a heavy burden of demonstrating that subjecting the witness to a
deposition “will work a clearly defined and serious injury.” 	Brockaway,
2019 WL 13551037, at *1 (citing Pansy v. Borough of Stroudsburg, 23
F.3d 772, 786 (3d Cir. 1994)).
We cannot say that Forcine has satisfied that burden here. We
find that Defendants have stated with particularity why the depositions
of Derek Cressman, Christopher Wright, and Brian Forcine are
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necessary. Defendants have not satisfied the “heavy burden” of
establishing that producing these witnesses “will work a clearly defined
and serious injury.” 	Brockway, No. 2019 WL 13551037, at *1.
However, we do not condone Defendants’ conduct in cancelling multiple
depositions at the last minute. Cancelling a deposition at the last
minute is a waste of the opposing party’s time and resources. While we
appreciate that Defendants desired to have that results of the expert
testing for use at the most recently scheduled depositions, we also note
that the witnesses’ depositions had been previously scheduled and
cancelled and no rationale was proffered for the earlier cancellations.
We will deny Forcine’s Motion for a Protective Order as to these three
depositions. However, Defendants are instructed that they should work
cooperatively with Forcine to schedule these depositions on a mutually
agreeable date(s). If Defendants proceed to cancel these depositions for
any reason once a date has been agreed upon, they will not be permitted
to reschedule.
3. The Parties’ Requests for Attorneys’ Fees
In its Motion for a Protective Order, Forcine argues that it should
be awarded attorneys’ fees pursuant to Fed. R. Civ. P. 11. (Doc. 73 at 9-
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10). Forcine contends that the “voluminous, duplicative, and last-
minute discovery requests were served solely for the purpose of
harassing Forcine, delaying this matter, and needlessly increasing the
cost of litigation.” (Doc. 73 at 10).
Foricne’s request will be denied. First, we do not find that
Defendants conduct violated Fed. R. Civ. P. 11(b). In any event, as
noted supra, Rule 11(c)(2) requires that any motion for sanctions be
made “separately from any other motion,” which was not done here.
Fed. R. Civ. P. 11(c)(2). Further, and more importantly, Rule 11
explicitly provides that it does not apply to “discovery requests,
responses, objections, and motions under Rules 26 through 37.” Fed. R.
Civ. P. 11(d). Forcine’s request for attorneys’ fees pursuant to Rule 11
is therefore denied.
Similarly, Defendants request an Order pursuant to Fed. R. Civ.
P. 37(d) based upon Forcine’s failure to produce Brian Forcine for a
deposition and refusal to failure to respond to its interrogatories and
requests for production of documents. (Doc. 77 at 15). While we have
already expressed our disapproval of Forcine’s refusal to answer any of
Defendant PNK Holdings, LLC’s September 18, 2025 discovery requests
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or Defendant Sharkov’s October 3, 2025 discovery requests, we decline
to impose sanctions at this time given both parties’ conduct.
While we continue to remain available to assist the parties to the
extent they reach an impasse in discovery, we expect both parties to
follow all Local Rules and this Court’s procedures going forward. We
will not entertain any further discovery motions where the procedure
contemplated by Local Rule 26.3 is not followed. As Chief Judge Brann
observed, the Rule was designed to “encourage professionalism and
collegiality among litigators and avoid unnecessary court intervention,
protracted legal proceedings and needless expense and fees.” 	Bolus,
2020 WL 930329, at *3. Compliance is not optional.
IV. 	CONCLUSION
For the reasons set forth herein, Forcine’s Motion Show Cause
Motion (Doc. 68) will be granted in part and denied in part. The Motion
will be granted only to the extent that Defendants have failed to
produce legible statements for account ending in 6955. The motion will
be denied in all other respects. Forcine’s Motion for a Protective Order
(Doc. 73) will be denied. Defendants Cross-Motion to Compel Written
Discovery and Depositions from Plaintiff (Doc. 78) will be granted in
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part and denied in part. We will compel Forcine to produce responses to
Defendants’ written discovery requests and produce witnesses Brian
Forcine, Derek Cressman and Christopher Wright for depositions. We
will deny Defendants’ request for attorneys’ fees and costs. An Order
follows.
BY THE COURT:
Date: March 17, 2026 	/s/ Leo A. Latella
LEO A. LATELLA
United States Magistrate Judge
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