Skybolt Aeromotive Corporation v. Milspec Products, Inc. et al

Filing 52

ORDER terminating as moot 31 Plaintiff's Motion to Compel production of documents. On or before May 8, 2017, Plaintiff is directed to provide an assessment of its reasonable expenses, including attorney's fees, necessitated by Defenda nt Milspec Products Inc.'s inadequate discovery responses. Milspec shall then have until on or before May 15, 2017, to show cause why costs and fees should not be awarded to Plaintiff in the amount stated, failing which the requested costs and fees may be imposed as requested. Signed by Magistrate Judge Philip R. Lammens on 4/21/2017. (CAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
SKYBOLT AEROMOTIVE
CORPORATION, a Florida Corporation
Plaintiff,
v.

Case No: 5:16-cv-616-Oc-PRL

MILSPEC PRODUCTS, INC. and
JEREMY SUMMERS
Defendants.

ORDER
Before the Court is Plaintiff’s motion to compel the production of documents. (Doc. 31).
Through the motion, Plaintiff seeks documents responsive to its production requests, namely
Requests to Produce Numbers 48, 52, 53, 61–63, 70, and 71. Defendant Milspec Products, Inc.,
the only Defendant that the motion proceeds against, has now responded. (Doc. 43).
In its response, Milspec submits that Request No. 53 (the Federal Aviation Administration
communications) is moot as those documents have already been produced, and that it will produce
documents responsive to Requests No. 48 (“STC kit” sale records) and No. 52 (quality control
manual), but access to the manual will be limited to “Attorney’s Eyes Only.” Milspec further
notes that it will produce responsive documents for Requests Nos. 61–63 (other sales records and
profit and loss statements), but only to the extent (1) the records are relevant to the time-frame at
issue in the Complaint (Doc. 1) and (2) the records are relevant to the products at issue in the
Complaint. Likewise, Milspec represents that it will also produce documents responsive to

Requests Nos. 70 and 71 (state and federal taxation documents), but only to the extent the records
are relevant to the time-frame at issue in the Complaint.
As an initial matter, to the extent that Milspec has agreed to provide the above-mentioned
documents to Plaintiff, but has not yet done so, Milspec shall provide such documentation on or
before May 1, 2017. And to the extent that Milspec has provided or will provide Plaintiff with
responsive documentation, the Court offers no opinion at this time whether such production
constitutes a sufficient and complete response to Plaintiff’s requests.1 The Court is disinclined,
though, to simply weed through the requests and the now proposed production to decide which
items remain deficient.
Given Milspec’s production (and anticipated production), the Court finds that the most
appropriate result at this time is to TERMINATE the instant MOTION (Doc. 31) as MOOT.
Indeed, I note that at the hearing held before me last Friday Plaintiff’s counsel stated that she is
still receiving responsive documents from Milspec, documents that—according to Milspec—

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Milspec asserts in its response that the relevant time-period for the production of documents
related to financial records and sales data is the past two years as “the alleged false advertisements occurred
exclusively in 2015 and 2016 for purposes of calculating purported damages under the Lanham Act, then
[Plaintiff] should not be entitled to sales data, information about all products sold and sensitive financial
information that pre-date this two year period.” (Doc. 43 at p.7). I note that the Complaint does allege
that Milspec has falsely advertised throughout 2015 and 2016. (Doc. 1 at ¶16). As Milspec has already
agreed to produce responsive documents, the parties shall confer (in-person or by telephone) on what timeperiod is relevant. Yet, at a minimum, Milspec shall produce responsive documents from the past two
years by the deadline provided above (that is, May 1, 2017), unless the parties agree to another arrangement.
I further note that now Plaintiff has filed a reply to Defendant’s response. (Doc. 51). In its reply,
Plaintiff notes, among other things, that Defendant’s objections (including any relevancy objections) to the
production requests are wholly conclusory and inadequate and, thus, the Court should overrule them in total
and order Defendant to produce the requested five years’ worth of financial records and sales data. But
surely this reply ignores the case law Defendant cites in support of its theory of limiting any sales data and
financial records to a two-year period. See (Doc. 43 at p. 7) (citing Pinilla v. Northwings Accessories
Corp., No. 07-21564-CIV, 2007 WL 2826608, at *5 (S.D. Fla. Sept. 25, 2007), which limited the production
of documents to the time-period at issue asserted in the parties’ claims and counterclaims). In any event,
what is certainly clear is that the parties—given the lack of successful communication that both identify in
their papers—have failed to comply with the spirit of the meet and confer rule. See Local Rule 3.01(g).
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reflect recent communications between the Federal Aviation Administration and Milspec (these
documents would likely be responsive to Request No. 53). Notably, the termination of the motion
is without prejudice to the Plaintiff to file an additional motion to compel, as may be necessary
after accessing what was produced in light of what was requested.
Finally, under Federal Rule of Civil Procedure 37(a)(5), if a disclosure or requested
discovery is provided after a motion to compel is filed, then “the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.” The court must not, however, order this
payment if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure
or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection
was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed.
R. Civ. P. 35(a)(5)(i–iii).
Here, Milspec has provided discovery requested in Plaintiff’s motion to compel after the
motion was filed. Thus, on or before May 8, 2017, Plaintiff is directed to provide an assessment
of its reasonable expenses, including attorney’s fees, necessitated by Milspec’s inadequate
discovery responses. Milspec shall then have until on or before May 15, 2017, to show cause
why costs and fees should not be awarded to Plaintiff in the amount stated, failing which the
requested costs and fees may be imposed as requested.
DONE and ORDERED in Ocala, Florida on April 21, 2017.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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