Entertainment USA Inc v. Moorehead Communications Inc

Filing 72

OPINION AND ORDER re 59 MOTION (Second) to Compel Discovery and to Extend Deadline for 30(b)(6) Depositions by Plaintiff Entertainment USA Inc. The Motion is GRANTED IN PART in that Moorehead Communications Inc is ORDERED to produce the requested i nformation concerning Josh LaFevre, Phan Tran and Miguel Rivera. The Motion is DENIED with respect to Entertainment USA Inc's request that information be produced in Excel rather than in PDF. The Motion is otherwise DENIED AS MOOT. The Court DENIES AS MOOT 63 MOTION for In-Camera Review and Protective Order by Defendant Moorehead Communications Inc. Signed by Magistrate Judge Roger B Cosbey on 9/20/13. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ENTERTAINMENT USA, INC.,
Plaintiff,
vs.
MOOREHEAD COMMUNICATIONS, INC.,
Defendant.

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Cause No. 1:12-CV-116

OPINION AND ORDER
On August 9, 2013, the Court granted in part Plaintiff Entertainment USA, Inc.’s Motion
to Compel Discovery (Docket # 47) and ordered Defendant Moorehead Communications, Inc., to
produce certain information, including Dish Network activations in the state of Pennsylvania
from January 2006 to present and any activations by Entertainment’s two former vice presidents.
(Docket # 58.) The Court’s Order, however, apparently did not fully resolve the parties’
discovery dispute, as on August 27, 2013, Entertainment filed a Second Motion to Compel
Discovery and to Extend Deadline for 30(b)(6) Depositions (Docket # 59) and Moorehead, in
turn, filed a Motion for In-Camera Review and Entry of Protective Order (Docket # 63).
A hearing was held on the motions on August 28, 2013, and continued on September 19,
2013. (Docket # 69.) The Court extended the Rule 30(b)(6) deposition deadline and ordered the
parties to conduct a supplement Local Rule 37-1 conference prior to the September 19th hearing.
(Docket # 69.)
At the September 19th hearing, the parties reported that the discovery dispute appears to
be resolved with the exception of two issues. (Docket # 71.) First, Entertainment wants
Moorehead to submit the Dish Network activations in Excel format, rather than in PDF, so that

the data can be searched and assembled. But apparently the information is voluminous, and the
parties already agreed that Moorehead would remove certain categories of information through a
PDF format to make it a more manageable size. (Reply Br. 2.) Moreover, Moorehead states that
the PDF document is searchable, and Entertainment admits it has not yet attempted to search the
document. Consequently, Entertainment’s request that the data be produced in Excel will be
DENIED. See Pace v. Int’l Mill Serv., Inc., No. 205 CV 69, 2007 WL 1385385, at *2 (N.D. Ind.
May 7, 2007) (“Regarding electronic files, [Federal Rule of Civil Procedure 34(b)’s] requirement
that information must be provided in a reasonably usable form does not mean that it must be
provided in the format in which the responding party stores it.” (citation and internal quotation
marks omitted)).
Second, Entertainment seeks the activations of Josh LaFevre, Phan Tran, and Miguel
Rivera pursuant to a subpoena duces tecum served in connection with the anticipated Rule
30(b)(6) deposition. Moorehead objects, contending that Entertainment is attempting to
circumvent the June 30, 2013, discovery deadline because these three individuals are not
“owners” or “dealers” as described in prior discovery requests.
Indeed, “the use of a subpoena duces tecum to secure the production of documents is a
discovery device subject to discovery deadlines.” Gordon v. Ne. REMC, No. 1:02-cv-171, 2003
WL 21919179, at *3 (N.D. Ind. June 2, 2003); see also Neal v. Dana Corp., No. 1:01-cv-393,
2002 WL 32144315, at *1 (N.D. Ind. June 5, 2002); Dreyer v. GACS Inc., 204 F.R.D. 120, 123
(N.D. Ind. Oct. 23, 2001). But here, Document Request Nos. 39-41 of Entertainment’s Second
Request for Production of Documents served on April 1, 2013, seemingly encompass the
requested information listed on the subpoena. (See Docket # 60.) Moreover, the Court already

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ordered Moorehead to produce all Dish Network activations in the state of Pennsylvania and the
activations of certain individuals, noting that whether the Referral Fee Agreement includes
certain activations is a matter of contract interpretation. If the Agreement is interpreted to
include these activations, then the information is relevant to Entertainment’s damages. (See
Docket # 58.) Therefore, Entertainment’s motion to compel this information will be
GRANTED.1
In sum, Entertainment’s Second Motion to Compel Discovery (Docket # 70) is
GRANTED IN PART in that Moorehead is ORDERED to produce the requested information
concerning Josh LaFevre, Phan Tran, and Miguel Rivera, and is DENIED with respect to
Entertainment’s request that information be produced in Excel, rather than in PDF; the Second
Motion to Compel Discovery is otherwise DENIED AS MOOT. Moorehead’s Motion for InCamera Review and Entry of Protective Order (Docket # 63) is DENIED AS MOOT.
SO ORDERED.
Enter for this 20th day of September, 2013.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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Entertainment also asks that this information be produced in Excel format, rather than in PDF. For the
reasons stated earlier, that request will be DENIED.

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