Commnet Wireless, LLC et al v. Benning Power Electronics, Inc.

Filing 46

ORDER granting 38 Motion to Compel. Signed by Judge John L. Kane on 02/08/16.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-3424-JLK
COMNET WIRELESS, LLC, a Delaware limited liability company, and
ATLANTIC TELENETWORK, INC., a Delaware corporation,
Plaintiffs,
v.
BENNING POWER ELECTRONICS, INC., a Texas corporation, and
BENNING ELEKTROTECHNIK und ELEKTRONIK GMBH & CO. KG, a foreign
limited liability company,
Defendants.
________________________________________________________________________
ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL (Doc. 38)
________________________________________________________________________
Kane, J.
This civil action involves product liability claims brought by the Plaintiffs against
the Defendants in connection with a fire that occurred on August 6, 2013 at Plaintiffs’
facility located at Castle Rock, Colorado. The fire involved a battery back-up system for
Plaintiffs’ telecommunications network manufactured and sold by Defendants. The
lawsuit is in its discovery phase, and Plaintiffs seek an order under Fed. R. Civ. P. 37(a)
compelling Defendants to provide “full and compete answers” to certain interrogatories
and for certain additional orders concerning Benning Germany and the time, place, and
manner for conducting Rule 30(b)(6) depositions of Germany-based staff. I have
reviewed the parties’ briefing and GRANT the Motion as follows:

I. Interrogatories.
Plaintiffs have accepted the supplemental answers to their First Set of
Interrogatories with respect to Interrogatory answers nos. 7, 12, 13 and 15, therefore they
are no longer at issue and subject to this order. I have reviewed the interrogatories, the
submitted answers, the objections and the briefs of counsel. I find the answers to
Interrogatories 14, 18, 19, and 20 are inadequate. I find further that the requested ten year
period is not unreasonable and the request to limit answers to the last six years is denied.
Full and complete answers to each of the foregoing interrogatories shall be made and
provided to Plaintiffs’ counsel on or before February 26, 2016. If any of the requested
data or documents are in the hands and control of third parties not related to defendants,
then defendants must provided detailed responses as to their efforts to obtain such
materials. Materials in the possession of defendants or either of them obtained from
independent third parties must be provided to Plaintiffs. The scope of the interrogatories
is not overly broad or burdensome and need not be related only to fire and overheating
events similar to the one at issue. Additional data derived from the interrogatories as
expressed may well lead to the discovery of relevant and admissible evidence, not the
least of which would be the number of complaints and times spent correcting the design
and function of the inverter module and its related parts.
II. Depositions.
Plaintiffs have requested the issue of Mr. Heynen’s deposition be deferred. The
request is granted, but I feel obligated to observe that Benning Germany had no trouble
bringing Mr. Heynen to the United States to perform tests paid for by plaintiffs.

Preventing his presence in the United States for a deposition is obstructive and likely
violative of Rule 1, Fed. R. Civ. P. Should the parties be unable to agree on the
conditions and presence of Mr. Heynen for purposes of taking his deposition, I shall
consider the possibility of prohibiting his testimony and/or the admission into evidence of
his work product at trial. I also note that Benning Germany conducts extensive business
within the United States and has done so and continues to do so. Accordingly, I am not
favorably impressed with tears being shed about travel expenses or the venue for
discovery. This is indeed a global economy and none of the corporations involved is
doing business by sailing ship.
The Rule 30 (b)(6) depositions of two representatives of Benning Germany
selected by Benning Germany shall take place in Denver, Colorado at a date agreed upon
by the parties, but not later than March 31, 2016. If agreement as to time and place in
Denver, Colorado cannot be reached by the parties, the depositions will take place in this
United States Courthouse at a time determined by the court. As these discovery disputes
have likely consumed valuable time during the discovery period, I will extend the
discovery cutoff for Plaintiffs only for a period of sixty (60) days if a motion therefor is
made.
The cost of travel to Denver, Colorado by the two 30 (b)(6) deponents shall be
borne by the Defendant Benning Germany except that the Plaintiffs shall reimburse
Benning Germany for one-half the air fare to Denver from Bocholt, Germany and return
at the lowest economy fare upon receipt of billing from Benning. No additional
reimbursement for lodging or related travel expenses shall be required.

In making the foregoing rulings I have considered a number of factors. First,
counsel with their regular hourly billings are based and located in Denver, Colorado. It is
less expense for all parties to avoid paying hourly rates for travel time. Second, the Court
is in Denver, Colorado and based upon the discovery disputes presented I think it is likely
that I may be called upon for further supervision and possible immediate enforcement of
orders. Proximity to the anticipated disputes will clearly result in a more efficient and
timely handling of any such matters. Third, the expenses incident to travel are to be
shared as provided above and no litigant has even suggested the presence of economic
hardship or inability to appear and litigate in Denver, Colorado. Fourth, as stated above,
Benning Germany engages its officers and employees in travel for business purposes and
no argument has been made that coming to Denver constitutes an undue hardship. In fact,
the parties had agreed to meet in Denver to conduct mediation. While the event did not
take place, the scheduling appears to have presented no problems for any party. Fifth,
while Benning Germany has the right to select its 30(b)(6) witnesses, plaintiffs are the
moving parties seeking discovery and preference should be given as a matter of equity to
their choices. Sixth, and finally, with the depositions being taken here in Denver,
Colorado, I can resolve any disputes without risking offense to any other nation.
Dated February 8, 2016 at Denver, Colorado.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE