Iguana, LLC v. Lanham et al
Filing
215
ORDER (redocketed because 214 Order was sealed) denying 153 Motion for Sanctions; granting 156 Motion to Compel to the extent set forth in the Order; granting 158 Motion the extent set forth in the Order. Ordered by Judge Clay D. Land on 10/28/2011 (tlf).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
IGUANA, LLC,
*
Plaintiff,
*
vs.
*
PAUL E. LANHAM, et al.,
*
Defendants.
CASE NO. 7:08-CV-9 (CDL)
*
O R D E R
Presently
sanctions
pending
filed
by
before
Plaintiff
the
Court
Iguana
are
LLC
two
motions
(“Iguana”)
and
for
one
motion to compel filed by Defendants Paul E. Lanham, Charles
Calkins,
and
Kilpatrick
“Kilpatrick Defendants”).
Stockton
LLP
(collectively,
the
As discussed below, Iguana’s motion
for sanctions related to the deposition of Randall Lanham (ECF
No. 153) is denied.
Iguana’s motion for sanctions related to
the belated disclosure of certain evidence by Defendants Federal
Marketing
Inc.
Service
(“MMI”)
and
Corporation
H.
David
(“FMSC”),
Cobb
Montgomery
(collectively,
Marketing,
the
“MMI
Defendants”) (ECF No. 158) is granted to the extent set forth
below.
The Kilpatrick Defendants’ Motion to Compel (ECF No.
156) is granted to the extent set forth below.
I.
Iguana’s Motion
Deposition
Iguana’s
first
for
Sanctions
motion
for
as
to
sanctions
Randall
relates
Lanham
to
two
depositions of Defendant Randall Lanham (“Randall”), which were
scheduled for July of this year but did not occur.
Iguana
contends that Randall, along with the Kilpatrick Defendants and
the
MMI
Defendants,
committed
sanctionable
intentionally “scuttling” Randall’s depositions.
conduct
by
As discussed
below, the Court disagrees.
A.
Factual Background
Iguana wished to depose Randall.
also wished to depose Randall.
The Kilpatrick Defendants
The Kilpatrick Defendants issued
a subpoena for Randall to testify at a deposition in California,
and Randall accepted service of the subpoena.
Pl.’s Mot. for
Discovery Sanctions [hereinafter Sanctions Mot. #1] Ex. 1, Email
from C. Decaire to L. Hatcher, et al., June 15, 2011, ECF No.
153-2; Sanctions Mot. #1 Ex. 2, Subpoena, ECF No. 153-3.
The
subpoena listed July 15, 2011 as the date for the deposition,
though the subpoena was accompanied by a communication stating
that if July 15 was inconvenient for Mr. Lanham, counsel would
work to find another date.
Id.; Sanctions Mot. #1 Ex. 8, Email
from S. Cohoon to S. Asman, et al., July 8, 2011 at 7:17 PM, ECF
No. 153-9 at 1.
Counsel for the Kilpatrick Defendants notified
Iguana’s counsel and counsel for the MMI Defendants that she
2
expected to hear from Randall soon about whether that date was
feasible for Randall.
Sanctions Mot. #1 Ex. 1, Email from C.
Decaire to L. Hatcher, et al., June 15, 2011, ECF No. 153-2.
On
June 21, 2011, counsel for the Kilpatrick Defendants notified
Iguana’s counsel that she was “trying to confirm that July 15 is
feasible” for Randall’s deposition.
Kilpatrick Defs.’ Resp. to
Sanctions Mot. #1 Ex. B, Email from C. Decaire to S. Asman, June
21, 2011, ECF No. 155-2.
Iguana
deposition
did
not
topics
wish
in
the
to
be
limited
Kilpatrick
to
the
scope
Defendants’
of
subpoena.
Therefore, on June 30, 2011, Iguana served Randall with a notice
of deposition for July 14, 2011.1
Iguana’s counsel did not
contact Randall regarding his availability prior to noticing the
deposition.
On
July
5,
2011,
counsel
for
the
Kilpatrick
Defendants asked Iguana’s counsel if the two depositions could
be consolidated into one day.
Sanctions Mot. #1 Ex. 5, Email
from
July
C.
Decaire
to
S.
Asman,
5,
2011,
ECF
No.
153-6.
Iguana’s counsel construed this email as “confirmation” of the
July 14 and 15 deposition dates, even though counsel for the
Kilpatrick
Defendants
reminded
Iguana’s
counsel
that
she
had
reached out to Randall to verify that he would be available on
July
15
and
to
“determine
what
1
California
location
will
be
Iguana apparently mailed the notice on July 30 or July 1, so that it
was received by Randall on Tuesday, July 5. Iguana also sent Randall
a courtesy copy of the notice by email on July 30 or July 1.
3
best.”
Id.
Counsel for the Kilpatrick Defendants did not tell
Iguana’s counsel that she had confirmed the date and location of
the
deposition.
Both
Iguana’s
counsel
and
counsel
for
the
Kilpatrick Defendants purchased nonrefundable plane tickets from
Georgia to California in anticipation of Randall’s deposition.
On
July
8,
2011,
Randall
told
Iguana’s
counsel
via
telephone that he could not attend the depositions on July 14
and
15
because
emailed
counsel
Defendants
to
he
for
let
had
prior
the
them
commitments.
Kilpatrick
know
that
Iguana’s
Defendants
Randall
and
asked
counsel
the
MMI
that
his
depositions be postponed due to conflicts in Randall’s schedule.
Sanctions Mot. #1 Ex. 8, Email from S. Asman to C. Decaire, et
al., July 8, 2011 at 6:51 PM, ECF No. 153-9 at 1.
Iguana’s
counsel noted that he had explained to Randall that Iguana was
“unable to change the existing schedule” due to the scheduling
order,
upcoming
Iguana’s
Defendants
depositions
counsel
and
also
MMI
and
notified
Defendants
travel
counsel
that
he
arrangements.
for
the
would
Id.
Kilpatrick
object
to
any
changes to the deposition date unless the Court extended the
discovery deadline, which was August 12, 2011.
Id.
The Kilpatrick Defendants’ counsel responded to the email
from Iguana’s counsel and notified him that she had also been
informed by Randall for the first time that day that he was not
available on July 14 or 15.
Sanctions Mot. #1 Ex. 8, Email from
4
S. Cohoon to S. Asman, et al., July 8, 2011 at 7:17 PM, ECF No.
153-9 at 1-2.
Counsel for the Kilpatrick Defendants informed
Iguana’s counsel that Randall said he was available during the
week of July 25, and she suggested that Iguana’s counsel “pick a
weekday”
during
that
week
for
his
deposition,
then
the
Kilpatrick Defendants would schedule their deposition for the
following day.
Id. at 2.
The Kilpatrick Defendants’ counsel
noted that discovery did not close until August 12, that there
was
sufficient
time
for
a
new
deposition
notice
and
a
new
subpoena to be issued, and that it “seems less of a hassle to
everyone concerned if we just get new dates agreed upon and
serve revised notices/issue a new subpoena consistent with those
dates.”
Id.
Iguana’s counsel responded that he had already
made travel plans based on the Kilpatrick Defendants’ subpoena,
that he did not realize the July 14 and 15 dates were flexible,
and
that
hands.”
he
suggested
they
“leave
the
matter
in
Randall’s
Sanctions Mot. #1 Ex. 8, Email from S. Asman to S.
Cohoon, et al., July 8, 2011 at 7:55 PM, ECF No. 153-9 at 3.
Later the same evening, Iguana’s counsel stated that “Iguana’s
plans are fixed, and absent an Order and Extension [from the
Court],
Iguana
deposition dates.
will
object
to
any
changes”
to
Randall’s
Sanctions Mot. #1 Ex. 8, Email from S. Asman
to S. Cohoon, et al., July 8, 2011 at 10:04 PM, ECF No. 153-9 at
4.
5
On July 13, 2011, Iguana’s counsel traveled to California
for Randall’s deposition.2
Defendants
nor
counsel
Neither counsel for the Kilpatrick
for
the
California for the deposition.
deposition.
regarding
Defendants
traveled
to
Randall did not appear for the
None of the parties filed a motion with the Court
this
sanctions.
MMI
issue
until
Iguana
filed
its
motion
for
Although Randall was available for a deposition on
July 27, Iguana refused to agree to a deposition of Randall
before the Court ruled on its motion for sanctions.
B.
Discussion
Iguana
contends
that
the
“scuttled” Randall’s deposition.
Randall
should
be
sanctioned
Defendants
intentionally
Iguana appears to argue that
under
Federal
Rules
of
Civil
Procedure 30(g) and 37(d) for failing to attend his deposition
and that the Kilpatrick Defendants and MMI Defendants should
also
be
sanctioned
because
they
were
complicit
in
Randall’s
failure to attend the deposition.
As a sanction, Iguana requests that Defendants be ordered
to pay all of Iguana’s costs and expenses for the California
2
On July 13, 2011, Randall’s counsel notified Iguana’s counsel that
Randall would not be present for the deposition on July 14.
Kilpatrick Defs.’ Resp. to Sanctions Mot. #1 Ex. B, Email from C.
Decaire to S. Asman, June 21, 2011, ECF No. 155-2. He also notified
Iguana’s counsel that Randall objected to the deposition notice as
deficient in several respects, and notified Iguana’s counsel that
Randall would be available for the deposition on July 27.
Iguana’s
counsel apparently did not receive the letter until after he was in
transit.
6
travel.
Iguana also requests an order excluding any documents
attributed
Randall
to
from
Randall
(except
testifying
in
“admissions”)
this
action.
and
preventing
Finally,
Iguana
contends that the Court should enter a default judgment against
the Kilpatrick Defendants.
The
Court
declines
to
impose
sanctions.
This
simple
scheduling dispute could have been easily resolved had counsel
for
Iguana
simply
convenient time.
rescheduled
the
deposition
to
a
mutually
Iguana’s counsel has no one but himself to
blame for his decision to travel to California.
He ignored the
clear indications that the Randall deposition would not take
place on July 14 or 15, and he refused to consider reasonable
alternative dates for the deposition.
From the very beginning, it was no secret that the July 15
deposition date was not set in stone as Iguana insists it was.
On June 15 and again on June 21 and July 5, counsel for the
Kilpatrick Defendants told Iguana’s counsel that she was trying
to confirm the deposition for July 15 but had not been able to
do so.
It is unclear why Iguana’s counsel would take these
statements as confirmation of the deposition date.
Moreover,
Iguana’s counsel did not check Randall’s availability before he
noticed Iguana’s deposition of Randall, and he never confirmed
either deposition date with Randall.
Randall himself contacted
Iguana’s counsel a couple days after receiving the deposition
7
notice
to
explain
his
schedule
conflicts
and
tell
Iguana’s
counsel that he could not attend the depositions on July 14 and
15.
It
is
difficult
to
understand
how
Iguana’s
counsel
interpreted all of this to suggest that Randall would appear for
a
deposition
on
July
14
or
July
15,
given
that
everything
Iguana’s counsel was told pointed to the contrary.
After it should have been clear to Iguana’s counsel that
the depositions would not take place on July 14 or 15, Iguana’s
counsel
refused
to
work
with
agreeable deposition date.
Randall
to
find
a
mutually
And while everyone else tried to
find a date that did not pose a conflict for Randall, Iguana’s
counsel refused to budge.
Iguana’s counsel inexplicably blamed
the Court’s scheduling order for his resistance to a different
date,
even
though
discovery
period
notice.
This
there
and
was
two
approach
more
weeks
to
a
than
left
simple
a
to
month
left
issue
a
scheduling
in
the
deposition
conflict
by
Iguana’s counsel distracts from the serious issues presented in
this case and conflicts with the Court’s expectations as to how
discovery should be conducted.
The Court finds that Defendants’
conduct regarding the scheduling of the Randall deposition does
not authorize the imposition of any sanction.
At most, they
failed to recognize that there was a communication gap between
what
they
were
telling
Iguana’s
counsel heard.
8
counsel
and
what
Iguana’s
Should Defendants still wish to depose Randall to preserve
his testimony for trial, they shall be permitted to do so, at a
time that is agreeable to Randall and all the parties.3
II.
Iguana’s Motion for Sanctions as to Belated Disclosure of
Certain Evidence by MMI Defendants
Unlike Iguana’s first motion for sanctions, Iguana’s second
motion
for
sanctions
raises
serious
and
troubling
issues.
Iguana seeks the ultimate sanction, entry of default judgment
against
the
disclosure
MMI
of
Defendants,
certain
for
evidence
the
and
MMI
lack
Defendants’
of
response to a direct order from the Court.
candor
belated
in
their
As discussed below,
the Court finds that sanctions are warranted.
A.
In
Factual Background
its
Complaint,
Iguana
claims
that
the
Kilpatrick
Defendants published a letter that wrongfully accused Iguana of
willfully infringing U.S. Reissue Patent No. 35,571.
Iguana
contends that the MMI Defendants forwarded a copy of that letter
to Patriot Performance Materials, Inc., one of Iguana’s major
suppliers.
Until quite recently, the MMI Defendants steadfastly denied
that they had sent the letter to Patriot.
action
was
filed
in
2008,
the
3
Court
Shortly after this
ordered
Defendants,
The Court recognizes that several summary judgment motions have been
filed in this case. The Court has not yet decided those motions, and
the Court’s decision to permit Randall’s deposition should not be
construed as an indication one way or the other as to the Court’s
position on the merits of those motions.
9
including the MMI Defendants, to disclose to Iguana the names
and addresses of all the parties who received the infringement
letter.
TRO Hr’g Tr. 78:21-79:5, Jan. 31, 2008, ECF No. 18;
Order Den. Mot. for TRO, Feb. 1, 2008, ECF No. 10.
Defendant
Cobb, the president and CEO of MMI and FMSC, provided the Court
with an affidavit stating that he sent the letter to Peter Pfaff
of Glasforms, Inc.
Cobb Aff. ¶ 3, ECF No. 13.
Cobb stated in
his affidavit that he did not send the letter “to any other
person or entity” and that neither MMI nor FMSC had sent the
letter to any other person or entity.
was untrue.
Id. ¶ 4.
This statement
The MMI Defendants continued to deny that they had
sent the infringement letter to Patriot.
E.g., MMI Defs.’ Am.
Answer ¶ 101, ECF No. 128; 2d Am. Compl. ¶ 101, ECF No. 60.
On May 23, 2011, Iguana served written discovery requests
on the MMI Defendants.
Defendants
discovered,
In June of 2011, counsel for the MMI
based
on
his
examination
of
the
MMI
Defendants’ computer systems, that the MMI Defendants actually
had sent the infringement letter to Patriot.
Counsel for the
MMI Defendants disclosed this information to Iguana on June 15,
2011.
The Court ordered the MMI Defendants to produce by June
27, 2011 the emails and computer files that revealed the MMI
Defendants’
Patriot.
conduct
in
sending
the
infringement
letter
to
Additionally, Cobb admitted during his deposition that
he had made false representations regarding his involvement in
10
sending the infringement letter and that he did so with the
intent to deceive Iguana, the Court and his counsel.
Due to the MMI Defendants’ intentional misrepresentation,
Iguana contends that it incurred needless expenditures to prove
that
the
MMI
Defendants
actually
did
send
the
infringement
letter to Patriot.
The MMI Defendants admit that Cobb lied to
Iguana
Court.
and
to
the
They
contend,
however,
that
the
misrepresentation had little impact on the case and that the
litigation has not been expanded or meaningfully delayed due to
the misrepresentation, particularly given that Iguana did not
serve any written discovery requests on the MMI Defendants until
May 23, 2011.
As a sanction for the MMI Defendants’ behavior, Iguana asks
that
the
Court
strike
the
answer
and
defenses
of
Defendants and enter a default judgment against them.
the
MMI
Iguana
further asks that the MMI Defendants be required to pay Iguana’s
costs associated with proving that the MMI Defendants sent the
infringement letter to Patriot, including the costs arising out
of Iguana’s lawsuit against Patriot.
Iguana argues that many of
the costs incurred in this litigation and “likely the entirety
of the Patriot litigation” could have been avoided if the MMI
Defendants had not made the misrepresentation to Iguana and the
Court.
Pl.’s 2d Mot. for Sanctions 10, ECF No. 158.
11
B.
Discussion
The
MMI
Defendants
do
not
dispute
that
they
failed
to
comply with the Court’s orders of January 31, 2008 and February
1, 2008 that required the MMI Defendants to disclose to Iguana
the names and addresses of all the parties who received the
infringement letter.
affidavit.
They
They do not dispute that Cobb lied in his
do
not
dispute
that
the
MMI
Defendants
maintained this lie for three years—until June of this year.
The MMI Defendants concede that some sanction is appropriate,
but they argue
that the ultimate sanction of striking their
answer and defenses is not warranted.
Under
Court
may
Federal
Rule
sanction
a
of
party
Court’s discovery orders.
the
disobedient
judgment
party’s
against
the
Civil
for
failing
37(b)(2)(A),
comply
to
the
the
with
Such sanctions may include striking
pleadings
disobedient
37(b)(2)(A)(iii), (vi).
Procedure
and
rendering
party.
Fed.
a
default
R.
Civ.
P.
The sanctions may also include ordering
the disobedient party to pay the reasonable expenses caused by
its failure to comply with the discovery order.
37(b)(2)(C).
dismissal
with
Fed. R. Civ. P.
A default judgment against a defendant, like a
prejudice
against
a
plaintiff,
is
a
severe
sanction that may be appropriate when the disobedient party has
acted in bad faith and demonstrated a flagrant disregard for the
court
and
the
discovery
process.
12
E.g.,
Shortz
v.
City
of
Tuskegee, Ala., 352 F. App’x 355, 359 (11th Cir. 2009) (per
curiam).
A default judgment against a defendant is a drastic
sanction, and it should generally only be implemented “as a last
resort, when: (1) a party's failure to comply with a court order
is a result of willfulness or bad faith; and (2) the district
court
finds
that
lesser
sanctions
would
not
suffice.”
Id.
(discussing sanction of dismissing plaintiff’s complaint with
prejudice) (citing Malautea v. Suzuki Motor Co., 987 F.2d 1536,
1542 (11th Cir. 1993)).
In Shortz, for example, the Eleventh
Circuit affirmed the district court’s dismissal with prejudice
of a plaintiff’s complaint because the plaintiff purposefully
disregarded court orders for him to respond to the defendant’s
written discovery requests and appear at a deposition.
Id. at
358-59.
The MMI Defendants’ conduct here extends beyond failing to
respond to a court order.
In addition to their failure to
comply with the Court’s order, they affirmatively lied that they
had provided complete information in response to the Court’s
order, and they did so for the express purpose of misleading the
parties and the Court.
It is no wonder that the MMI Defendants
do not now seriously dispute that they willfully and in bad
faith failed to comply with the Court’s 2008 orders to disclose
to
Iguana
the
names
and
addresses
received the infringement letter.
13
of
all
the
parties
who
Their conduct displayed a
lack of respect for the Court and the entire litigation process,
which depend on the parties to comply with Court orders and
demonstrate candor in response to directives from the Court.
The MMI Defendants were not mistaken about the Court’s order.
Their response to it was not equivocal or ambiguous; nor was it
attributable to a lack of recollection.
they “flat out lied.”
In colloquial terms,
The Court can think of few types of
conduct that would be more egregious and harmful to the judicial
process than knowingly lying in response to a Court order.
conduct cannot be condoned.
on
the
wrist
with
an
Such
Merely slapping the MMI Defendants
imposition
of
attorney’s
fees
would
diminish the seriousness of the misconduct.
The
response
of
the
MMI
Defendants’
attorneys,
upon
learning that their clients lied, is commendable, but the Court
would expect no less from members of the Bar.
The fact that the
attorneys acted admirably does not excuse what their client did.
Moreover, any attempt at this time to diminish the seriousness
of the conduct rings hollow.
at
the
heart
of
this
The publication of the letter is
litigation.
The
Court
found
it
sufficiently significant that it ordered the MMI Defendants to
disclose the information early in the litigation.
The failure
to disclose the information undoubtedly altered the discovery
process and likely has expanded this litigation.
14
A price must
be paid, and it must exceed the mere out of pocket cost created
by the misconduct.
This
case
cries
out
for
the
ultimate
sanction.
The
president of MMI and FMSC thought he was above the law.
He
could lie when it suited his financial interests to do so.
He
felt
no
duty
attorneys.
of
honesty
to
the
Court
or
even
to
his
own
His conduct demonstrates a complete lack of respect
for the Court and the judicial system which it represents.
must be called to account.
He
The minimum sanction necessary to
redress this flagrant and dishonest disregard for the Court’s
order is the ultimate sanction.
Accordingly, the answers of the
MMI Defendants are stricken, and they are placed in default as
to liability.
They shall be permitted to contest the amount of
damages for which they should be held liable.
III. Kilpatrick Defendants’ Motion to Compel
The Kilpatrick Defendants brought their motion to compel
because they contend that Iguana has not adequately responded to
their
parties
document
that
Accordingly,
requests.
The
discovery
Iguana
Court
abuses
shall
not
previously
would
be
not
permitted
warned
the
be
tolerated.
to
offer
any
documents that it did not produce before discovery closed on
August
12,
categories
litigation
2011.
of
The
Kilpatrick
documents:
involving
(a)
Defendants
documents
Iguana
and
15
its
focus
related
on
four
to
separate
supplier,
Patriot
Performance Materials, Inc. (“Patriot”); (b) documents produced
for
the
first
time
at
the
30(b)(6)
deposition
of
Iguana
representative Ernie Stewart; (c) Iguana’s financial documents;
and
(d)
documents
Malyszek.
A.
related
to
the
expert
report
of
Patrick
The Court addresses each issue below.
Patriot Litigation Documents
Iguana
argues
that
Defendants’
actions
caused
Iguana’s
supplier, Patriot, to stop working on the production of Iguana’s
products, thus harming Iguana.
Iguana pursued a separate breach
of contract action against Patriot.
The Kilpatrick Defendants
requested “all non-privileged documents related to the Patriot
Litigation . . . including but not limited to all pleadings,
correspondence,
transcripts,
case.”
discovery,
deposition
document[]
exhibits,
and
productions,
emails
deposition
related
to
the
Kilpatrick Defs.’ Reply in Supp. of Mot. to Compel Ex.
A, Pl.’s Resps. to Kilpatrick Defs.’ Doc. Reqs. ¶ 25, ECF No.
168-1 at 7-8.
Iguana
apparently
does
not
dispute
that
sought are discoverable and should be produced.
the
documents
Rather, Iguana
contends that it has already produced the documents via a webbased
program
called
CaseWebs.
Iguana’s
counsel
represented
that “to the extent [Iguana’s counsel] has any documents from
the Patriot cases, they are . . . available on CaseWebs.”
Pl.’s
Resp. to Kilpatrick Defs.’ 2d Mot. to Compel 4, ECF No. 165.
16
The
Patriot
Kilpatrick
Defendants
litigation
documents
According
to
the
Kilpatrick
acknowledge
are
that
available
Defendants,
some
on
CaseWebs
of
the
CaseWebs.
does
not
contain the full depositions and exhibits for all depositions
conducted in the Patriot litigation, including the depositions
of Mr. Stewart, Ms. Redfern and Mr. Powell.
CaseWebs also does
not contain all of the written discovery requests and responses
for the Patriot litigation, nor does it contain correspondence
related to the Patriot litigation.
The Court recognizes that
Iguana’s counsel has represented that he produced all of the
documents he received from his client, but the relevant inquiry
is not whether Iguana’s counsel has the documents but whether
Iguana has possession, custody or control of the documents.
Within seven days of the date of this Order, Iguana shall
produce
all
previously
exhibits
Patriot
been
for
litigation
produced,
all
documents
including
depositions
the
full
conducted
that
have
depositions
in
the
not
and
Patriot
litigation, all of the written discovery requests and responses
for the Patriot litigation, and non-privileged correspondence
related to the Patriot litigation.
privilege
log
Kilpatrick
of
any
Defendants’
documents
request
Iguana shall also produce a
that
but
privileged.
17
are
which
responsive
Iguana
to
the
contends
are
B.
Documents Produced at 30(b)(6) Deposition
The
Kilpatrick
documents
in
Defendants
support
of
asked
Iguana’s
Iguana
claim
to
that
produce
the
all
Kilpatrick
Defendants caused Iguana to lose a government contract, as well
as
all
documents
that
relate
to
Iguana’s
claim
of
damages.
Kilpatrick Defs.’ Reply in Supp. of Mot. to Compel Ex. A, Pl.’s
Resps. to Kilpatrick Defs.’ Doc. Reqs. ¶¶ 18, 46, ECF No. 168-1
at
6,
12.
During
the
30(b)(6)
deposition
of
Iguana’s
representative, Earnest Stewart, Stewart testified that Iguana
is
seeking
damages
in
connection
individual combat shelters.
with
a
contract
concerning
According to Kilpatrick, Iguana had
not previously identified the individual combat shelter contract
as
one
it
lost
due
to
Defendants’
conduct,
produced any documents regarding that contract.
and
it
had
not
Iguana does not
appear to contest that such documents are discoverable.
Stewart did bring to his deposition on July 6, 2011 a DVD
containing
81
files
(nearly
10,000
pages)
that
had
not
previously been produced to Defendants, and he promised at his
deposition
to
produce
government contracts.
additional
documents
related
to
the
According to Iguana, the documents were
not “previously available” because they were on old computers
that had been retired and were in storage.
According to the
Kilpatrick
Defendants,
agree
Defendants
to
reconvene
Iguana
refused
Stewart’s
18
to
deposition
so
to
allow
they
could
question
him
on
the
documents
that
were
produced
at
his
deposition.
Defendants
served
their
Iguana in February 2011.
requests
in
April
2011.
written
discovery
requests
on
Iguana initially responded to those
After
Defendants
filed
a
previous
motion to compel, the parties agreed to a production deadline of
June 24, 2011.
responsive
Then, on July 6, 2011, Iguana’s witness brought
documents
to
his
deposition.
Iguana
refused
to
permit Defendants to reconvene Stewart’s deposition after they
had
an
opportunity
to
review
the
documents.
Iguana
made
a
supplemental production on August 19, 2011—after the close of
fact discovery.
Iguana’s only excuse for not producing the
documents sooner is that they were stored in old computers that
were in storage.
Iguana offers no explanation for its refusal
to permit Defendants to reconvene the 30(b)(6) deposition.
Under these circumstances, the Court concludes that Iguana
should not be permitted to rely upon at trial or in opposition
to
any
motion
any
of
the
documents
it
first
produced
at
Stewart’s July 6 deposition, including documents related to the
individual combat shelter contract.
Also, Iguana shall not be
permitted to rely upon any of the documents it first produced
after the close of discovery.
Defendants may rely on these
documents if they choose to do so.
19
C.
Financial Documents
The
Kilpatrick
Defendants
asked
Iguana
to
produce
all
documents that relate to Iguana’s claim of damages and all of
Iguana’s financial statements.
Kilpatrick Defs.’ Reply in Supp.
of Mot. to Compel Ex. A, Pl.’s Resps. to Kilpatrick Defs.’ Doc.
Reqs. ¶¶ 46-47, ECF No. 168-1 at 12.
In response, Iguana stated
that it had already produced all of the documents relating to
its claim of damages and that the financial statements were not
relevant.
Id.
Iguana did ultimately produce, after the close
of fact discovery, profit and loss statements for 2007-2010 but
did not produce profit and loss statements for 2004-2006.
The
Kilpatrick Defendants contend that such documents are relevant
because Iguana began producing bednets in 2004.
As discussed
above, Iguana shall not be permitted to rely upon any of the
documents it first produced at Stewart’s July 6 deposition, and
it shall not be permitted to rely on any documents that it
produced after the close of discovery.
D.
Expert Report of Patrick Malyszek
The Kilpatrick Defendants contend that the expert report of
Iguana’s expert, Patrick Malyszek, does not comply with Federal
Rule
of
Civil
Procedure
26(a)(2)(B)(ii).
The
Kilpatrick
Defendants did not raise this issue in their motion to compel;
they
raised
it
for
the
first
reply
brief.
Accordingly, the issue is not properly before the Court.
If the
20
time
in
their
Kilpatrick Defendants raise this issue in a motion to exclude
Malyszek’s testimony, then the Court will consider the issue
when it considers that motion.
E.
Effect of the Court’s Ruling on Pending Motions
Within seven days of the date of this Order, the Kilpatrick
Defendants shall file with the Court a short brief explaining
how the Court’s rulings in this Order affect the pending motions
for summary judgment and motions to exclude testimony.
The
brief, which shall not exceed ten pages, should include a list
of
exhibits
that
were
not
timely
produced
relied on in its briefs and fact statements.
but
which
Iguana
The list should
include the exhibit number, a brief description of the exhibit,
the docket number of the exhibit, and the page number and/or
paragraph number where the exhibit is cited.
Should Iguana wish
to file a response, it may do so within fourteen days of the
date of this Order, and its brief shall not exceed ten pages.
CONCLUSION
For
the
reasons
set
forth
above,
Iguana’s
motion
for
sanctions related to the deposition of Randall Lanham (ECF No.
153) is denied.
Iguana’s motion for sanctions related to the
belated disclosure of certain evidence by the MMI Defendants
(ECF No. 158) is granted, and the MMI Defendants are placed in
default as to liability.
The Kilpatrick Defendants’ Motion to
Compel (ECF No. 156) is granted to the extent set forth above.
21
IT IS SO ORDERED, this 28th day of October, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
22
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