Advanced Tactical Ordnance Systems LLC v. Real Action Paintball Inc et al
Filing
200
OPINION AND ORDER re 160 MOTION (Third) to Compel by Plaintiff Advanced Tactical Ordnance Systems LLC. The Motion is GRANTED IN PART and DENIED IN PART and TAKEN UNDER ADVISEMENT IN PART all as is outlined in Order. Signed by Magistrate Judge Roger B Cosbey on 2/8/13. (cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ADVANCED TACTICAL ORDNANCE
SYSTEMS, LLC, an Indiana Limited
Liability Company d/b/a PepperBall
Technologies,
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Plaintiff,
vs.
REAL ACTION PAINTBALL, INC., a
California Corporation, K.T. TRAN,
individually, CONRAD SUN, individually,
CONRAD SUN, LLC, TRACS PACIFIC
CORP., TRACS PACIFIC HK, INC.,
and JOHN DOES 1-5,
Defendants.
Cause No. 1:12-CV-296
OPINION AND ORDER
This matter is before the Court on Plaintiff Advanced Tactical Ordnance Systems, LLC’s
(“ATO”) Third Motion to Compel Defendant Real Action Paintball, Inc. (“RAP4”) to Respond
to Plaintiff’s Discovery Requests. (Docket # 160.) During a hearing on February 7, 2013, oral
argument on this motion was heard and concluded. For the reasons stated on the record, the
motion is GRANTED IN PART, DENIED IN PART, and TAKEN UNDER ADVISEMENT
IN PART.
As a general matter, ATO first argues that, because RAP4 submitted an untimely and
inadequate privilege log, RAP4’s claimed privileges should be deemed waived. As waiver is a
serious and harsh sanction, however, the Court declines to find waiver at this juncture. See
Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 480-81 (N.D. Ind. 2009). But the privilege
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log that RAP4 has submitted is nonetheless inadequate as it does not identify the persons named
in the privilege log by title or set forth their affiliation with RAP4 or anybody else; the privilege
log also fails to correlate each document listed in the log with the Request for Production that is
responsive to it. See Miller v. City of Plymouth, No. 2:09-CV-205-JVB-PRC, 2011 WL
1740154, at *4-5 (N.D. Ind. May 5, 2011). As such, RAP4 is ORDERED to submit an amended
privilege log on or before February 20, 2013, that cures these deficiencies.1 If an adequate
privilege log is not served on ATO on or before February 20, 2013, the Court will deem the
privilege WAIVED.2 See Cunningham, 255 F.R.D. at 481.
Moving onto ATO’s specific objections, the Court GRANTS ATO’s motion to compel as
it relates to Request No. 3 of Plaintiff’s Third Request for Production of Documents as the
documents sought are relevant and production would not be unduly burdensome.
The motion is also GRANTED as to Request No. 4 of Plaintiff’s Third Request for
Production to the extent that RAP4 is ordered to produce all documents, data, and tangible things
containing information about the availability of PepperBall projectiles from ATO. RAP4 is
further ordered (to the extent applicable) to execute an affidavit or declaration (1) stating that
after diligent search there are no documents, data, or tangible things responsive to this request in
its possession, custody, or control, other than those previously produced; and (2) describing, with
particularity, its efforts to locate documents, data, or tangible things responsive to this request,
including who conducted the search and who that person or persons consulted with to conduct
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The Court presumes that the privilege log lists all of the recipients of the purportedly privileged
documents. If it does not, this problem should also be remedied in the amended privilege log.
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If RAP4 does not file an adequate privilege log by the deadline, to the extent that any of these claims of
privilege affect the Sun Defendants, their counsel will be given an opportunity to argue that the privilege should not
be waived as to them.
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that search to ensure the veracity of their statements. Traveler v. CSX Transp., Inc., No. 1:06CV-56, 2007 WL 433530, at *2 (N.D. Ind. Feb. 6, 2007) (citations omitted).
As to Request No. 7 of Plaintiff’s Third Request for Production, the motion is DENIED
as to this request, except that RAP4 is ORDERED to execute an affidavit or declaration (1)
stating that after diligent search there are no documents, data, or tangible things responsive to
this request in its possession, custody, or control, other than those previously produced; and (2)
describing, with particularity, its efforts to locate documents, data, or tangible things responsive
to this request, including who conducted the search and who that person or persons consulted
with to conduct that search to ensure the veracity of their statements. Traveler, 2007 WL
433530, at *2.
The motion to compel is GRANTED as to Request No. 10 of Plaintiff’s Third Request
for Production, with RAP4 ORDERED to execute an affidavit or declaration (1) stating that after
diligent search there are no documents responsive to this request in its possession, custody, or
control, other than those previously produced; and (2) describing, with particularity, its efforts to
locate documents responsive to this request, including who conducted the search and who that
person or persons consulted with to conduct that search to ensure the veracity of their statements.
Traveler, 2007 WL 433530, at *2.
The motion to compel is TAKEN UNDER ADVISEMENT as its relates to Interrogatory
No. 2 of Plaintiff’s First Set of Interrogatories, Request No. 11 of Plaintiff’s Third Request for
Production, and Request No. 1 of Plaintiff’s Fourth Request for Production of Documents. With
regard to Request No. 11 of Plaintiff’s Third Request for Production, RAP4 is ORDERED to
submit an affidavit or declaration setting forth what the OS Commerce database contains by
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February 15, 2013.
Regarding Request No. 1 of the Third Request for Production, the Court GRANTS the
motion to compel for this request, but limits it to all agreements related to RAP4’s
manufacturing, distributing, purchasing, or selling of irritant powder filled projectiles or their
associated training rounds for two years preceding the filing of the Complaint through the
present. If the agreement is for the sale of projectiles in the two years preceding the filing of the
Complaint, then RAP4 is ordered to produce that agreement regardless of when it acquired those
projectiles.
The motion to compel is further GRANTED as to both Request No. 13 of Plaintiff’s
Third Request for Production, seeking all financial statements and other documents reflecting
RAP4’s revenues generated from the sale of its products during the two-year period preceding
the filing of the Complaint to the present, and Request No. 5 of Plaintiff’s Fourth Request for
Production, seeking RAP4’s tax returns for 2007 through 2012. The documents sought in these
requests are relevant to both damages as well as the harm RAP4 claims it will suffer from the
entry of a preliminary injunction and are otherwise not intrusive.
ATO’s attempt to compel RAP4 to produce all documents, data, and tangible things
related to “Gamo” and RAP4 ending their business relationship in Request No. 8 of its Fourth
Request for Production is DENIED because, as the parties concede, there is no “Gamo.”
Similarly, ATO’s motion to compel RAP4 to respond to Request No. 15 of its Fourth
Request for Production, seeking the employment records that RAP4 filed with the state of
California reflecting the number of employees it employed from the fourth quarter of 2011
through the end of 2012, is DENIED as, based on the current record, constituting a fishing
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expedition. See Cent. States, Se., & Sw. Areas Pension Fund. v. Waste Mgmt. of Mich., 674 F.3d
630, 637 (7th Cir. 2012) (“Discovery is not to be used as a fishing expedition.” (citation
omitted)).
The motion to compel RAP4 to respond to Interrogatory No. 3 of Plaintiff’s First Set of
Interrogatories is GRANTED, but limited to only the lawsuits alleging intellectual property
infringement filed against RAP4 or KT Tran in the past seven years. This information is relevant
to ATO’s attempt to prove that RAP4’s alleged infringement in this case was willful. See
Betram Music Co. v. P & C Enters., Inc., No. 09-CV-2253, 2011 WL 2633666, at *11 (C.D. Ill.
July 5, 2011) (finding that the fact that defendants had been sued twice before for copyright
infringement suggested that their infringement in the present case was willful). As such, the
motion to compel is also GRANTED as to Request No. 7 of Plaintiff’s Fourth Request for
Production—seeking all documents, data, and tangible things identified in response to
Interrogatory No. 3 or related lawsuits against RAP4 for intellectual property infringement—but
similarly limited to the lawsuits alleging intellectual property infringement filed against RAP4 or
KT Tran in the past seven years. See id.
ATO’s motion to compel RAP4 to respond to Request No. 4 of its Fourth Request for
Production is GRANTED, but reformed as follows: RAP4 is ordered to produce all
communications between RAP4 and PepperBall Technologies and RAP4 and SWAT from
January 1, 2011, through the present.
The motion to compel is also GRANTED as to Interrogatory No. 4 of Plaintiff’s First Set
of Interrogatories, Request No. 2 of Plaintiff’s Third Request for Production, and Request No. 3
of Plaintiff’s Fourth Request for Production. As to Request No. 3 of the Fourth Request for
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Production, this request should not be limited to just emails between RAP4 and SWAT
responsive to this request.
In regards to Request No. 11 of Plaintiff’s Fourth Request for Production, the motion to
compel is GRANTED as to this request, but is limited to those entities to which RAP4 was
introduced by Conrad Sun; something RAP4 would certainly know.
The motion to compel Request No. 12 of Plaintiff’s Fourth Request for Production,
which asks for all documents, data, and tangible things in RAP4’s possession, custody, or control
regarding returns of defective or damaged projectiles, is also GRANTED as to both irritant and
non-irritant projectiles, but limited temporally to January 1, 2008, through the present. RAP4
has failed to demonstrate the burdensomeness of producing documents from this time period.
As to Requests No. 8 and 9 of Plaintiff’s Third Request for Production, ATO’s motion to
compel is GRANTED as to both of these requests.3 Likewise, the motion to compel is also
GRANTED as to Request No. 14 of Plaintiff’s Fourth Request for Production as RAP4 no longer
objects to it.
The Court further orders, as a general matter, that from this point forward, when
documents are produced, counsel are to identify the Bates numbers for the documents that
respond to each request.
All documents and affidavits ordered produced pursuant to this Opinion and
Order—except for the affidavit describing what the OS Commerce database contains, which is
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With regards to Jon Magin, who is referenced in both Request No. 9 of the Third Request for Production
and Request No. 14 of the Fourth Request for Production, as ATO has argued that Magin is relevant for purposes of
its case and discovery requests, it is effectively precluded from arguing (as it seemingly does) that Magin is
irrelevant to the Defendants’ case and discovery requests.
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due on or before February 15, 2013—shall be produced and received on or before March 5,
2013.
SO ORDERED.
Enter for this 8th day of February, 2013.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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