Whitney Information, et al v. Xcentric Ventures, et al

Filing 114

Amended MOTION to compel Responsive Documents to First Request for Production by all plaintiffs. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit)(Birken, Shawn) Motions referred to Magistrate Judge Sheri Polster Chappell.

Whitney Information, et al v. Xcentric Ventures, et al

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Case No. 2:04-cv-47-FtM-34- SPC WHITNEY INFORMATION NETWORK, INC., a Colorado corporation, Plaintiff, v. XCENTRIC VENTURES, LLC., an Arizona limited liability company; BADBUSINESSBUREAU.ORG, an Arizona limited liability company; and ED MAGEDSON, an individual, Defendants. ____________________________________/ PLAINTIFF'S AMENDED MOTION TO COMPEL RESPONSIVE DOCUMENTS TO FIRST REQUEST FOR PRODUCTION Plaintiff, WHITNEY INFORMATION NETWORK, INC., by and through its undersigned counsel, file this, its Amended Motion to Compel Responsive Documents to Plaintiff's First Request for Production, and states: 1. On or about January 22, 2004, Plaintiff filed a Complaint against

Defendants for: I) Federal Trademark Infringement; II) False Designation of Origin, False Description and False Representation under 15 U.S.C. § 1125(a); III) Common Law Trademark Infringement; and IV) Defamation per se of Business Reputation. 2. On March 30, 2007, Plaintiff propounded its First Request for Production

on Defendants. 3. On May 2, 2007, Defendants served their written Response to Plaintiff's However, Defendants did not provide the responsive

First Request for Production.

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Case No. 2:04-cv-47-FtM-34- SPC documents. Instead, all responses that were not objected to stated that responsive

documents that are not privileged will be made available for inspection and copying at the offices of Jaburg & Wilk. 4. On May 8, 2007, counsel for Plaintiff contacted counsel for Defendants

and requested that the documents delineated in the response be sent to Plaintiff. 5. On May 17, 2007, counsel for Plaintiff contacted counsel for Defendants

and again requested that the documents delineated in the response be sent to Plaintiff. 6. Subsequently, counsel for Plaintiff and counsel for Defendants had As a courtesy, counsel for

discussions regarding the production of the documents.

Plaintiff allowed Defendants additional time to collect and serve the documents. However, no documents were forthcoming. 7. Again, on May 30, 2007, counsel for Plaintiff contacted counsel for

Defendants and requested that the documents delineated in the response be sent to Plaintiff immediately. Counsel for Defendants was also contacted yet again on May 31, 2007. 8. To date, no documents responsive to Plaintiff's First Request for

Production have been produced, despite the repeated requests. 9. Plaintiff originally filed the instant motion on June 11, 2007, seeking to

include an Order compelling answers to Plaintiff's Second Set of Interrogatories. Defendants have answered Plaintiff's Second Set of Interrogatories and, as such, Plaintiff withdraws the portion of the Motion to Compel dedicated to Plaintiff's Second Set of Interrogatories. Plaintiff does not waive any substantive arguments that it might have

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Case No. 2:04-cv-47-FtM-34- SPC with regards to the sufficiency of Defendants' Answers to Plaintiff's Second Set of Interrogatories, which if necessary, will be filed in a separate motion. 10. As to the receipt of documents, Plaintiff has made numerous good faith

efforts to resolve the issues contained in the instant motion, but still has not been provided with responsive documents to Plaintiff's First Request for Production, after more than a month. 11. Accordingly, Plaintiff respectfully requests an Order compelling

Defendants to provide documents responsive to Plaintiff's First Request for Production. I. MEMORANDUM OF LAW

Defendants, by failing to provide documents responsive to Plaintiff's First Request for Production is seeking to interfere with Plaintiff's discovery efforts in the instant matter. "The scope of discovery under the federal rules is broad and...discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues." Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Federal Rule of Civil Procedure 26(b)(1) permits discovery into "any matter, not privileged, that is relevant to the claim or defense of any party." See Equal Employment Opportunity Commission v. Staffing Network, L.L.C., 2002 WL 31473840 at 1 (N.D.Ill. 2002). Information is relevant for purposes of Rule 26 "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. (citing Fed.R.Civ.P. 26(b)(1)). The test for relevance in discovery is an extremely broad one. Id.; AM Int'l Inc. v. Eastman Kodak Co., 100 F.R.D. 255, 257 (C.D.Ill. 1981)).

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Case No. 2:04-cv-47-FtM-34- SPC As Defendants have failed to provide documents responsive to Plaintiff's First Request for Production, Plaintiff is entitled to an Order compelling Defendants to provide documents responsive to Plaintiff's First Request for Production. WHEREFORE Plaintiff respectfully requests an Order compelling Defendants to provide documents responsive to Plaintiff's First Request for Production.

Respectfully submitted, By: /s/ Shawn L. Birken Scott W. Rothstein, Esq. FBN: 765880 Steven N. Lippman, Esq. FBN: 709638 Shawn L. Birken, Esq. FBN: 418765 ROTHSTEINROSENFELDT ADLER Counsel for Plaintiff 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale, Florida 33301 Tele: 954/522-3456 Fax: [phone] E-Mail: [e-mail] [e-mail] [e-mail]

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Case No. 2:04-cv-47-FtM-34- SPC

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 15 day of June, 2007, I electronically filed the forgoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing is being served this day upon all counsel of record identified on the Court delineated Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

ROTHSTEIN ROSENFELDT ADLER By: /s/ Shawn L. Birken Scott W. Rothstein, Esq. Steven N. Lippman, Esq. Shawn L. Birken, Esq.
H:\swrdocs\03-8471\Discovery\motion to compel rtp documents.doc

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Case No. 2:04-cv-47-FtM-34- SPC UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Case No. 2:04-cv-47-FtM-34- SPC WHITNEY INFORMATION NETWORK, INC., a Colorado corporation, Plaintiff, v. XCENTRIC VENTURES, LLC., an Arizona limited liability company; BADBUSINESSBUREAU.ORG, an Arizona limited liability company; and ED MAGEDSON, an individual, Defendants. ____________________________________/ SERVICE LIST Maria Crimi Speth, Esq. Jaburg & Wilk, PC 3200 North Central Avenue, Suite 2000 Phoenix, AZ 85012 Tele.: 602/248-1089 Fax: [phone] [e-mail] Co-Counsel Denise B. Crockett, Esq. Brian J. Stack, Esq. Stack Fernandez Anderson & Harris, P.A. 1200 Brickell Avenue, Suite 950 Miami, Florida 33131
Tel. [phone] Fax. [phone] Email: [e-mail] Email: [e-mail] Web: www.stackfernandez.com

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