Brain Synergy Institute LLC v. UltraThera Technologies, Inc. et al

Filing 71

ORDER by Magistrate Judge Boyd N. Boland on 12/9/14 granting in part and denying in part 64 Defendants' Motion to Compel Discovery. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-01471-CMA-BNB
BRAIN SYNERGY INSTITUTE, LLC, d/b/a Carrick Brain Centers,
Plaintiff,
v.
ULTRATHERA TECHNOLOGIES, INC., and
KEVIN MAHER,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the Defendants’ Motion to Compel Discovery [Doc. # 64, filed
10/1/2014] (the “Motion to Compel”). I held a hearing on the Motion to Compel this morning
and made rulings on the record, which are incorporated here.
IT IS ORDERED:
(1)

The Motion to Compel is GRANTED IN PART and DENIED IN PART as

follows:
•DENIED with respect to Production Requests 1-5, 7-10, and 32. The evidence
establishes that there are no responsive documents in the plaintiff’s possession, custody, and
control, and the defendants have failed to present any evidence to the contrary;
• DENIED with respect to Production Requests 11 and 12 based on the argument
that all responsive documents are subject to a privilege or immunity from disclosure. The
plaintiff shall provide a privilege log consistent with the requirements of Peat, Marwick,
Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984);

• GRANTED with respect to Production Request 13 to require the parties to
confer and agree upon additional search terms and custodians in connection with identifying any
additional emails which may be responsive to the request;
• GRANTED with respect to Production Request 16 to require the plaintiff to
either (i) produce for inspection and copying one copy of each responsive document and/or
(ii) direct the defendants to locations where any responsive materials may be viewed;
• GRANTED with respect to Production Requests 18, 19, 20, and 21;
• GRANTED with respect to Production Requests 23, 24, and 25 to require the
parties to confer and agree upon additional search terms and custodians in connection with
identifying any additional documents which may be responsive to the request;
• DENIED with respect to Production Request 26 because no responsive
documents are in the possession, custody, or control of the plaintiff;
• GRANTED with respect to Production Request 27;
• DENIED with respect to Production Request 29 based on the argument that all
responsive documents are subject to a privilege or immunity from disclosure. The plaintiff shall
provide a privilege log consistent with the requirements of Peat, Marwick, 748 F.2d at 542;
• DENIED with respect to Production Request 31 because it is an improper
blockbuster request, see Grynberg v. Total, S.A., 2006 WL 1186836 *6 (May 3, 2006);
• DENIED as moot with respect to Production Requests 17, 28, 30, 33, 34, 35,
and 36, because the plaintiff has agreed to produce all non-privileged responsive documents;
• DENIED with respect to Interrogatories 3, 4, 12, 13, 14, 15, and 18 for failure to
confer as required by D.C.COLO.LCivR 7.1(a), see Hoelzel v. First Select Corp., 214 F.R.D.

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634, 636 (D. Colo. 2003); and
•DENIED in all other respects.
(2)

All requests for expenses and attorneys’ fees in connection with the Motion to

Compel are DENIED.
(3)

The plaintiff shall provide the required privilege log on or before December 23,

2014; the parties shall confer about search terms and custodians on or before December 23,
2014; and the plaintiff shall make supplemental discovery responses and produce any additional
responsive documents on or before February 2, 2015.
Dated December 9, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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