Apex Colors Inc v. Chemworld International Limited, Inc. et al
OPINION AND ORDER: GRANTS 377 Second MOTION to Compel Responses to Discovery Dated January 5, 2016 by Pla Apex Colors Inc and ORDERS Dfts to provide supplemental discovery responses as set forth in this Opinion and Order. The Court AWARDS Pla its reasonable costs, including attorney fees, incurred in bringing that portion of the motion to compel the production of spreadsheets in native format only. The Court ORDERS Pla to FILE with the Court, on or before 6/29/2016, a verified statement of reasonable costs incurred in bringing that portion of the motion. Signed by Magistrate Judge Paul R Cherry on 6/16/2016. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
APEX COLORS, INC.,
CHEMWORLD INTERNATIONAL LIMITED,
INC., CHEMWORLD INTERNATIONAL
LIMITED, LLC, ATUL MODI, and MANOJ
APEX COLORS, INC.,
) CAUSE NO.: 2:14-CV-273-PRC
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Second Motion to Compel Responses to the
January 5, 2016 Discovery and for Sanctions [DE 377], filed by Plaintiff Apex Colors, Inc. on May
27, 2016. Defendants filed a response on June 4, 2016, and Plaintiff filed a reply on June 8, 2016.
Federal Rule of Civil Procedure 37(a)(3)(B) allows a party seeking discovery to move for
an order compelling an answer, designation, production, or inspection if a party fails to answer an
interrogatory submitted under Rule 33 or a party fails to respond to a request made under Rule 34.
See Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). Rule 37(a)(5)(A) governs attorney’s fees when the motion
to compel is granted or if the requested discovery is provided after the motion was filed and provides
that 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 the conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees,” unless the
opposing party’s non-disclosure was substantially justified or circumstances make an award of
expenses unjust. Fed. R. Civ. P. 37(a)(5).
On January 5, 2016, Plaintiff issued a written discovery request comprised of interrogatories
and requests for production of documents to all Defendants. Defendants did not respond until March
1, 2016, after a first Motion to Compel was filed. On March 4, 2016, the parties met and conferred,
and Defendants supplemented their discovery responses. Because Plaintiff contended that
Defendants had not fully responded, the parties again met and conferred on May 17, 2016. Plaintiff
explained what was needed to complete the production, and after the conference, Plaintiff provided
a detailed list of the outstanding discovery. Defendants did not respond. Plaintiff asks the Court to
compel production of the documents, which are needed for Plaintiff to prepare for depositions.
Specifically, Plaintiff asks the Court to compel Defendants to answer the discovery dated January
5, 2016, to compel Defendants to produce spreadsheets in Excel format, and to award reasonable
costs, including attorney fees, incurred in bringing this motion.
As an initial matter, the Court addresses Defendants’ argument that Chemworld already
supplied responsive documents to Plaintiff prior to June 4, 2014, through Bykowski’s bankruptcy.
Although this may be true, Chemworld does not identify which documents produced during the
bankruptcy are responsive to specific discovery requests. Although Defendants are not required to
produce the same documents multiple times within this litigation, Defendants are required to identify
in their responses the specific documents that are responsive to a discovery request and when and
in what context the documents were previously produced in this litigation. It is also not the Court’s
responsibility to review hundreds of pages of unspecified documents to determine whether
Defendants have already provided discovery. As for interrogatories, the response to an interrogatory
must contain the response, be complete in itself, and should not reference outside documents “at
least where such references make it impossible to determine whether an adequate answer has been
given without an elaborate comparison of answers.” Scaife v. Boenne, 191 F.R.D. 590, 594 (N.D.
Ind. 2000); see also Fed. R. Civ. P. 33(d).
Also, Defendants make arguments based on the Court’s findings in its ruling on the Motion
for Preliminary Injunction. As this Court has previously explained, the Court’s factual findings in
the ruling on the Motion for Preliminary Injunction were based on the evidence presented at the
hearing, which was not a trial on the merits. In addition, the motion for preliminary injunction and
the related hearing addressed only three of the five claims in this original litigation. The Court’s
ruling on the Motion for Preliminary Injunction does not affect the scope of discovery in this case.
Moreover, Defendants waived any such objection by not raising it with Plaintiff when Defendants
initially responded to the discovery requests. See Fed. R. Civ. P. 33(b)(4).
Defendants state that they are confused by what is meant by “any person or company with
which [Paul Bykowski] has been affiliated” in Interrogatories 1 and 2, which ask what payments
Chemworld made to Paul Bykowski or “any person or company with which he has been affiliated”
and a description of the payment. Plaintiff provided examples of who the affiliated people or
companies might be, identifying Bykowski’s wife Geri Bykowski, Bykowski’s company GB
Consulting, and Bykowski’s attorney Patrick McEuen (in the event Chemworld paid Mr.
Bykowski’s share of attorney fees in lieu of paying Mr. Bykowski directly). In their response brief,
Defendants also question whether Apex or Finos should be considered businesses with which
Bykowski was “affiliated,” and Plaintiff answers in the reply brief in the affirmative. Therefore, in
providing supplemental responses to Interrogatories 1 and 2 as ordered below, Defendants are
ORDERED to include Geri Bykowski, GB Consulting, Patrick McEuen, Apex, and Finos as “any
person or company with which he has been affiliated.”
Finally, the Court notes that Defendants did not provide a specific response to any of the
following arguments raised by Plaintiff regarding Interrogatory 1, Interrogatory 2, Request 2,
Interrogatory 3, or Interrogatory 4; however, as noted below, Defendant provided a response
regarding the production. The Court considers each disputed discovery response in turn.
Interrogatory 1 provides:
For the period 2003 to the present, describe the terms under which any
CHEMWORLD INTERNATIONAL LIMITED, INC., CHEMWORLD
INTERNATIONAL LIMITED, LLC (hereinafter referred to as “Chemworld” or “the
Chemworld entities”) [sic] has done business with Paul Bykowski or any person or
company with which he has been affiliated (such as Geri Bykowski or GB
Consulting). For example, any agreement (whether written or not) to pay Mr.
Bykowski a certain percentage on sales he developed or identified. Include in this
description any terms under which part or all of the payments due Bykowski were
agreed to be withheld, such as for costs (and specify what costs) or for other
purposes (and specify that purpose, such as to pay Bykowski’s share of attorney
fees). If the terms that Chemworld has compensated/paid Bykowski or any person
or company affiliated with him have changed over time, provide the dates. For
example, if Bykowski asked Chemworld to pay Geri Bykowski money on certain
dates identify those dates and the stated reason for each change and the reason for
Defendants responded to Interrogatory 1. In the instant motion, Plaintiff argues that
Defendants have given incomplete, conflicting answers. Plaintiff notes that the Chemworld
Defendants stated that, for the period 2010 through 2012, the Chemworld Defendants paid GB
Consulting a certain percentage of profits on pigment sales. Bykowski’s supplemental answers state
that after 2012, Chemworld paid him under the same commission arrangement it had previously paid
GB Consulting. Finally, counsel for Defendants stated that at some unspecified time, Chemworld
began paying Bykowski additional profits on each sale. Plaintiff argues that this statement of counsel
conflicts with Bykowski’s answer that his share of the profits after 2012 was the same as the profits
paid to GB Consulting from 2010 through 2012. Plaintiff also argues that counsel’s statements are
not competent evidence because they are not made by the Defendants under oath in response to the
Interrogatory. The Court finds that defense counsel’s response is not competent evidence and that
further clarification is required by Defendants regarding the terms of payment to Bykowski after
December 31, 2012. Accordingly, the Court ORDERS Defendants to supplement their response to
Interrogatory 1 and identify when Chemworld began paying Bykowski additional profits on each
In addition, Plaintiff argues that the answer is incomplete as it fails to identify, for the pre2013 period, the terms of payment for dye sales, the terms of payment for lab work, and any terms
and dates under which Chemworld made payments to Geri Bykowski. The Court notes that
Defendants provided information regarding the sale of dyes in their response; however, the answer
does not address these specific topics that are within the scope of the original interrogatory.
Therefore, in the interest of completeness, the Court ORDERS Defendants to supplement their
response to Interrogatory 1 and identify, for the pre-2013 period: (1) the terms of payment for dye
sales; (2) the terms of payment for lab work; and (3) any terms and dates under which Chemworld
made payments to Geri Bykowski.
Finally, Plaintiff argues that the answer is incomplete as it fails to identify, for the post-2013
period, the terms of payment for lab work, the date that the lab work payment became wrapped into
the additional higher commission rate, and whether these terms were for dye or pigment sales or
both. As noted above, because there appears to be some conflict in the responses regarding whether,
after December 31, 2012, Bykowski was paid the same commission as had previously been paid to
GB Consulting, the Court ORDERS Defendants to supplement their response to Interrogatory 1 and
identify, for the period after December 31, 2012: (1) the terms of payment for lab work by
Bykowski; (2) the date that the lab work payment became wrapped into the additional higher
commission rate; and (3) whether these terms were for dye or pigment sales or both.
Interrogatory 2 and Document Request 2
Interrogatory 2 provides:
For the period 2003 to the present, state or identify business records showing all
payments made by any Chemworld entity to Paul Bykowski or any person or
company with which he has been affiliated (such as Geri Bykowski or GB
Consulting) and the reason for such payment.
Document Request 2 provides:
Spreadsheets and/or reports, such as accounting or sales reports, showing sales,
profits and payments to Bykowski and/or related persons or entities related to sales
from customers developed or identified by Paul Bykowski.
In the motion, Plaintiff states that this information was requested so that Plaintiff can
calculate damages. Plaintiff explains that Defendants were asked the purpose of each payment so
that Plaintiff could separate payments that Plaintiff believes are recoverable as damages (such as
sales commissions) from those that are not (such as expense reimbursements). Plaintiff notes that
Chemworld produced a spreadsheet showing sales commissions paid to GB Consulting from 20102012 and a second spreadsheet showing four additional 2012 payments made to Bykowski directly.
Chemworld speculated that the payments in 2012 were for expense reimbursement or lab work.
Bykowski produced a 1099 form issued by Chemworld for the year 2015 but did not state the
purpose of the payments this 1099 form represented. Defendants also produced the sales records for
the period 2013-2016 that show the revenues from sales attributable to Bykowski but did not show
profits or what percentage of those profits were paid to Bykowski.
Plaintiff asserts that the missing information includes: (1) the profits made on each of the
2013-2016 sales; (2) the amounts paid to Bykowski on each of the 2013-2016 sales; and (3) payment
made to Bykowski for other reasons, such as expense reimbursements or lab work.
Plaintiff then represents that, in order to resolve this issue, Plaintiff located the accounting
records that appear to have been produced by Chemworld in the bankruptcy court. Plaintiff attached
these records to an email and asked Defendants to “Please confirm that these are accurate records
from your client and provide the Excel spreadsheets from 2014 and 2015 and through April of 2016
for Paul/GB/Geri/Color Consulting and we should be okay. In addition, please ask CW how they
accounted for the four payments that they are unsure about–whether it was for services (color
consulting work) or out of pocket expenses should be clear based on how they accounted for it in
their books.” (Pl. Mot, Ex. E). Plaintiff represents that Defendants never responded to this email.
Defendants did not address this specific request or the email in their response to the instant motion.
Defendants have offered no objection to producing this information.
Therefore, the Court ORDERS Defendants to respond to the following requests from the
May 17, 2016 email: (1) confirm that the attachments to the May 17, 2016 email from the
bankruptcy proceeding are accurate records from Defendants; (2) provide Excel spreadsheets from
2014 and 2015 and through April 2016 for Paul Bykowski, GB Consulting, Geri Bykowski, and
Color Consulting; and (3) provide a supplemental response to Interrogatory 2 explaining how
Chemworld accounted for the four payments that they are unsure about.
Interrogatories 3 and 4
Interrogatory 3 provides:
For the period 2003 to the present, state or identify business records showing all
payments received from customers developed or identified by Paul Bykowski, and
state or identify business records showing what amount of that payment went to Mr.
Bykowski or another company or person at his direction. Also state or identify
business records itemizing any expenses associated with these sales (for example, the
cost of Chemworld purchasing the product from a supplier).
Interrogatory 4 provides:
For the period 2003 to the present, state or identify business records showing profits
attributable to sales from customers developed or identified by Paul Bykowski.
In the motion, Plaintiff represents that Defendants produced sales information but did not
provide costs or profits. Plaintiff represents that Defense counsel has said that Plaintiff’s counsel
should be able to calculate the profit on each sale by subtracting the cost from the sales price.
Plaintiff argues to the Court that this is not feasible because Defendants have not yet provided the
cost attributable to each sale and because counsel is not competent to present evidence about
Chemworld’s profits. Finding that Defendants have not provided a complete answer to
Interrogatories 3 and 4, the Court ORDERS Defendants to provide a supplemental response to
Interrogatories 3 and 4 and provide the missing cost and profit information.
In Plaintiff’s Request for Production, Plaintiff asked Defendants to produce spreadsheets in
native format, which, in this instance, was Excel format. Defendants produced spreadsheets in .pdf
format instead, which is unsearchable. Plaintiff asks the Court to compel Defendants to produce the
spreadsheets in the native Excel format, arguing that it would be “simple” and would permit Plaintiff
to sort the data by date, customer name, or item description.
Defendants respond, without citation to law, that Plaintiff is not entitled to Defendants’
electronically stored information (ESI) in Chemworld’s native Excel format and that .pdf format is
First, Plaintiff requested that the record be produced in “native electronic format” and
Defendants did not raise this objection in initially responding to the discovery; thus, the objection
is waived. Second, Federal Rule of Civil Procedure 34(b) requires a party to produce electronically
stored documents as they are kept in the usual course of business or in a reasonably useable form.
See Fed. R. Civ. P. 34(b)(2)(E) (providing that “[a] party must produce documents as they are kept
in the usual course of business or must organize and label them to correspond to the categories in
the request” and that “[i]f a request does not specify a form for producing electronically stored
information, a party must produce it in a form or forms in which it is ordinarily maintained or in a
reasonably useable form or forms”). Because the .pdf format is not searchable, the format in which
Defendants produced the spreadsheets is not reasonably useable. Third, Defendants do not argue that
it would be difficult to produce the spreadsheets in Excel format.
The Court grants the Motion to Compel as to the format of the spreadsheets and orders
Defendants to produce the spreadsheets in the native, Excel format.
Having considered Rule 37(a)(5), the Court finds that, under all the circumstances of this
litigation and the specific nature of most of this motion to compel, an award of reasonable costs
occasioned by this motion is not warranted except to the extent Defendants refused to provide the
spreadsheets in native format. Some interrogatories are long and complex, containing multiple parts
with examples but not a full description of all sought-after categories. For the most part, the
remaining issues addressed in this Opinion and Order constitute refining and clarifying the scope
of the interrogatories. However, because Defendants have offered no rationale for failing to provide
the spreadsheets in native format, reasonable costs incurred in bringing the motion to compel
production in native format is warranted. Therefore, the Court awards Plaintiff its reasonable costs,
including attorney fees, incurred only in bringing the portion of the motion to compel regarding the
failure to provide the spreadsheets in excel format.
Based on the foregoing, the Court hereby GRANTS Plaintiff’s Second Motion to Compel
Responses to the January 5, 2016 Discovery and for Sanctions [DE 377] and ORDERS Defendants
to provide supplemental discovery responses as set forth in this Opinion and Order.
The Court AWARDS Plaintiff its reasonable costs, including attorney fees, incurred in
bringing that portion of the motion to compel the production of spreadsheets in native format only.
The Court ORDERS Plaintiff to FILE with the Court, on or before June 29, 2016, a verified
statement of reasonable costs incurred in bringing that portion of the motion.
SO ORDERED this 16th day of June, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES MAGISTRATE JUDGE
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