TECNOMATIC, S.P.A. v. REMY, INC. et al

Filing 390

REPORT AND RECOMMENDATIONS re 213 MOTION FOR SANCTIONS filed by TECNOMATIC S.P.A. - The Court recommends DENYING Tecnomatic's Motion for Sanctions [Dkt. 213 ]. Federal Rule of Civil Procedure 37(a)(5)(B) requires the Court to hold a hearing and consider the apportionment of attorney's fees and expenses when such a motion is denied, and both parties have requested attorney's fees (or other "appropriate relief"). Accordingly, Remy is ordered to file a petition for such fees and expenses on or before March 11, 2013, which will be addressed as a separate matter. **SEE ENTRY** Signed by Magistrate Judge Mark J. Dinsmore on 2/19/2013.(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

REMY INC.

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Plaintiff,
vs.
TECNOMATIC, S.P.A.,
Defendant,

TECNOMATIC, S.P.A.,
Plaintiff,
vs.
REMY, INC.,
HANSON SYSTEMS, LLC D/B/A EAGLE
TECHNOLOGIES GROUP,
ODAWARA AUTOMATION, INC.,
REMY INTERNATIONAL, INC.,
DELCO REMY MEXICO, S.R.L. DE
C.V.,
REMY COMPONENTES S. DE R.L. DE
C.V.,
1-10 DOES,
Defendants.

REPORT & RECOMMENDATION TO DENY TECNOMATIC’S MOTION FOR
SANCTIONS PURSUANT TO RULE 37 [DKT. 213]
This matter is before the Court on Tecnomatic, S.p.A.’s Motion for Sanctions Pursuant to
Rule 37. [Tecnomatic’s Motion for Sanctions Pursuant to Rule 37, Remy Inc. v. Tecnomatic

1

S.P.A., No. 1:11-cv-0991-SEB-MJD (S.D. Ind. Mar. 19, 2012), ECF No. 213 (hereinafter Dkt.
213).] For the reasons discussed below, the Court recommends DENYING the Motion.
I.

Background.
In 2004, Remy Inc. engaged Tecnomatic to design and manufacture a production system

for parts for an electric motor. After Tecnomatic delivered most of the ordered components,
Remy alleged that the equipment was delivered late and did not meet specifications. Remy
discontinued use of several of the components it had purchased from Tecnomatic and replaced
them with components made by other manufacturers.

Remy then brought suit against

Tecnomatic for breach of contract and breach of express and implied warranties. Tecnomatic
has brought suit for breach of the parties’ mutual confidentiality agreement wherein Tecnomatic
and Remy agreed to share information and technology.
Tecnomatic’s instant motion alleges that Remy’s witnesses provided false deposition
testimony and that Remy deliberately and in bad faith withheld documents from production.
Remy responded that the witnesses did not commit perjury and that the documents have been
produced in response to Tecnomatic’s more recent discovery requests, which are premised upon
Tecnomatic’s more recent claims, but that when requested in the original 2008 action (Case No.
1:08-cv-1227-SEB-JMS), the documents were not relevant to any claim or defense then pending.
II.

Legal Discussion.
Tecnomatic’s Motion fails for several reasons. First, Tecnomatic did not comply with its

meet and confer obligations under Federal Rule of Civil Procedure 37 or Southern District of
Indiana Local Rule 37-1. Second, the testimony of Remy’s witnesses, when considered in full,
shows that these witnesses did not falsely testify. Third, Tecnomatic did not seek to compel the
allegedly deficient discovery responses from Remy related to discovery served in the 2008

2

action.1 Remy consistently objected to producing certain documents and information in the 2008
action on relevancy grounds, but has produced the allegedly-withheld documents in response to
Tecnomatic’s 2011 claims to which Remy acknowledges those documents may be relevant.
Finally, even if a discovery violation occurred, the dismissal of Remy’s claims and/or defenses
would be drastically severe and not proper in the present circumstances.
A.

Tecnomatic Failed To Meet and Confer Prior to Filing Its Motion for
Sanctions.

Tecnomatic’s Motion for Sanctions is not properly before the Court because it fails to
comply with Fed. R. Civ. P. 37 as well as L.R. 37-1.2 Both of these rules require parties to meet
and confer prior to filing discovery-related motions. Although Tecnomatic fails to specifically
identify the subdivision of Fed. R. Civ. P. 37 that it seeks to invoke in its Motion, it does state in
its Reply that “although subsection (b), by its express terms, contemplates a court order prior to
filing the motion, subsections (c) and (d) do not.” [Tecnomatic S.p.A.’s Reply to Remy, Inc.’s
Response to Tecnomatic’s Motion for Sanctions Pursuant to Rule 37, Remy Inc. v. Tecnomatic
S.P.A., No. 1:11-cv-0991-SEB-MJD (S.D. Ind. April 16, 2012), ECF No. 246 (hereinafter Dkt.
246).] Tecnomatic’s Motion complains, in part, that Remy failed to fully-respond to written
discovery requests that contained information relevant to and contrary to the deposition
testimony of two witnesses. Federal Rule of Civil Procedure 37(d)(1)(B) provides:

1

Throughout this order, the period during which Remy’s originally-filed action (1:08-cv-1227SEB-MJD) was pending, prior to its consolidation into this action on September 15, 2011 [Dkt.
129], will be referred to as the “2008 action.”
2
Although the Court relieved the parties of their meet and confer obligations during a status
conference on June 25, 2012 [see Dkt. 286], Tecnomatic’s Motion for Sanctions [Dkt. 213] was
filed three months prior. As a result, Tecnomatic still had the obligation to meet and confer with
Remy pursuant to Fed. R. Civ. P. 37 and L.R. 37-1 prior to filing its March 19, 2012 Motion for
Sanctions.
3

(B) Certification. A motion for sanctions for failing to answer or respond must
include a certification that the movant has in good faith conferred or attempted to
confer with the party failing to act in an effort to obtain the answer or response
without court action.
The Motion also requests, in the alternative, that the Court compel further depositions of
the previously-deposed witnesses. Federal Rule of Civil Procedure 37(a)(1) regarding motions
to compel, also provides that “[t]he motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1); see also Lewis
v. Saint Margaret Mercy, Civil No. 2:11-cv-313, 2013 WL 214239, at *3 (N.D. Ind. Jan. 17,
2013) (“Fed. R. Civ. P. 37(a) envisions a genuine two-way communication where the parties
engage in a meaningful dialogue to resolve the issues without judicial intervention.”).
Similarly, Local Rule 37-1 requires parties to meet and confer in good faith prior to filing
discovery motions:
(a) Required Actions Prior to Court Involvement. Prior to involving the court
in any discovery dispute, including disputes involving depositions, counsel must
confer in a good faith attempt to resolve the dispute. If any such dispute cannot be
resolved in this manner, counsel are encouraged to contact the chambers of the
assigned Magistrate Judge to determine whether the Magistrate Judge is available
to resolve the discovery dispute by way of a telephone conference or other
proceeding prior to counsel filing a formal discovery motion. When the dispute
involves an objection raised during a deposition that threatens to prevent
completion of the deposition, any party may recess the deposition to contact the
Magistrate Judge’s chambers.
(b) Requirements of Motion to Compel. In the event that the discovery dispute
is not resolved at the conference, counsel may file a motion to compel or other
motion raising the dispute. Any motion raising a discovery dispute must contain a
statement setting forth the efforts taken to resolve the dispute, including the date,
time, and place of any discovery conference and the names of all participating
parties. The court may deny any motion raising a discovery dispute that does not
contain such a statement.
See also Loparex, LLC v. MPI Release Techs., LLC, Case No. 1:09-cv-1411-JMS-TAB, 2011
WL 1871167, at *2 (S.D. Ind. May 16, 2011) (“[T]he local rule contemplates an actual meeting
4

with a date, time, and place – whether by telephone, videoconference, or (if counsel’s location
permits) preferably face-to-face. An old-fashioned chat over coffee might prove especially
productive.”).
Here, Tecnomatic did not include any statement in its Motion that it met and conferred in
good faith with Remy as contemplated by either Fed. R. Civ. P. 37 or L.R. 37-1. [See Dkt. 212;
Brief in Support of Motions for Sanctions Pursuant to Rule 37, Remy Inc. v. Tecnomatic S.P.A.,
No. 1:11-cv-0991-SEB-MJD (S.D. Ind. Mar. 19, 2012), ECF No. 214-1 (hereinafter Dkt. 2141).]

It appears that no such conference ever occurred.

Remy states in its Response that

“Tecnomatic has not conferred with Remy in the required good faith attempt to resolve the
dispute regarding the Young and Perry deposition testimony, and has not filed or included the
required statement regarding any aspect of this dispute.” [Remy Inc.’s Response to Tecnomatic
S.p.A.’s Motion for Sanctions Pursuant to Rule 37, Remy Inc. v. Tecnomatic S.P.A., No. 1:11-cv0991-SEB-MJD (S.D. Ind. April 5, 2012), ECF No. 240 at 3, n.3 (hereinafter Dkt. 240).]
Tecnomatic did not refute this fact in either its Reply [Dkt. 246], or its Supplemental Submission
[Tecnomatic’s Supplemental Submission in Connection with Its Motion for Sanctions, Remy Inc.
v. Tecnomatic S.P.A., No. 1:11-cv-0991-SEB-MJD (S.D. Ind. July 18, 2012), ECF No. 308
(hereinafter Dkt. 308)].
It is within the Court’s discretion to deny a discovery motion that is filed without “a
statement setting forth the efforts taken to resolve the dispute, including the date, time, and place
of any discovery conference and the names of all participating parties.” L.R. 37-1(b) (“The court
may deny any motion raising a discovery dispute that does not contain such a statement.”).
Because Tecnomatic failed to meet and confer with Remy prior to filing its Motion for
Sanctions, the Motion is not properly before the Court and is, therefore, DENIED.

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B.

Tecnomatic’s Motion for Sanctions Fails on Its Merits.

Even if Tecnomatic’s Motion for Sanctions were properly before the Court, it would be
denied on the merits. Although “[a] district court has inherent authority to sanction conduct that
abuses the judicial process . . . [t]he sanction imposed should be proportionate to the gravity of
the offense.” Montaño v. City of Chicago, 535 F.3d 558, 563 (7th Cir. 2008) (citations omitted).
To succeed on its Motion, Tecnomatic must show an abuse of the judicial process and the
sanction must be proportionate to the gravity of the offense. Tecnomatic’s Motion does not
satisfy either criteria.
Tecnomatic’s Motion is based on two complaints against Remy. First, Tecnomatic
alleges that two of Remy’s witnesses committed perjury for which Remy should be sanctioned.
[Dkt. 213 at ¶ 1.] Second, Tecnomatic complains that “Remy has deliberately and in bad faith
withheld documents from discovery.” [Id. at ¶ 2.] Yet, the evidence presented by Tecnomatic
does not establish that Remy’s witnesses committed perjury, nor does it show that Remy has
withheld documents in bad faith.
Tecnomatic bears a significant burden of proof when requesting that this Court dismiss
Remy’s claims. “Although dismissal with prejudice is a permissible judicial sanction for fraud
on the court, the general rule is that before dismissing a suit with prejudice as a sanction for
misconduct a court should consider the adequacy of a less severe sanction.” Oliver v. Gramley,
200 F.3d 465, 466 (7th Cir. 1999) (citations omitted); Maynard v. Nygren, 332 F.3d 462, 468
(7th Cir. 2003) (“[A] court can apply the sanction of dismissal for Rule 37 violations with a
finding of willfulness, bad faith or fault, as long as it first considers and explains why lesser
sanctions would be inappropriate.”).

“Of all possible sanctions, dismissal is considered

‘draconian,’ and we must be ‘vigilant’ in our review.” Maynard, 332 F.3d at 467.

6

The burden of proof on such a motion is clear and convincing evidence. Id. at 468
(“[C]onsidering the severe and punitive nature of dismissal as a discovery sanction, a court must
have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case.”).
Tecnomatic urges the Court to use a preponderance of the evidence standard when considering
its Motion. [Dkt. 214-1 at6.] Although the Seventh Circuit suggested that the burden of proof in
cases where a party seeks dismissal as a sanction for a Fed. R. Civ. P. 37 violation may be a
preponderance of the evidence standard, the Court did not reach the burden issue because the
evidence in those cases was “clear and convincing” and “manifest.” Negrete v. Nat’l R.R.
Passenger Corp., 547 F.3d 721, 724 n.1 (7th Cir. 2008) (“There is no need to resolve the
standard here because the evidence was clear and convincing.”); Wade v. Soo Line R.R. Corp.,
500 F.3d 559, 564 (7th Cir. 2007) (“Soo Line has not, however, asked us to revisit Maynard
(which did not discuss the Supreme Court’s decisions) and use the preponderance-of-theevidence standard, perhaps because the evidence of bad faith is manifest.”). Consequently,
Maynard remains the controlling authority in this Circuit – which requires clear and convincing
evidence before dismissing claims for a Rule 37 violation. Yet, even if the burden was a
preponderance of the evidence, Tecnomatic cannot carry its burden of proving Remy abused the
judicial process.

Tecnomatic has not satisfied its burden to prove that Remy’s witnesses

committed perjury or that Remy “deliberately and in bad faith withheld documents from
discovery.”
1.

Evidence that Remy’s Witnesses Committed Perjury Has Not Been
Established.

Tecnomatic alleges that two of Remy’s witnesses – Kevin Young, a Rule 30(b)(6)
designee, and Stuart Perry, a former Remy employee – testified untruthfully and that such
testimony was a willful, deliberate attempt by Remy to conceal the truth from Tecnomatic. [Dkt.
7

214-1 at 6-11.] Before considering whether Remy’s witnesses testified falsely, the Court must
consider the legal definition of “perjury.”
“Perjury is different from confusion, mistake, or faulty memory; perjury is defined (at
least in the federal criminal context) as ‘false testimony concerning a material matter with the
willful intent to provide false testimony.’” Wallce v. McGlothan, 606 F.3d 410, 426 (7th Cir.
2010 (citing Montaño, 535 F.3d at 564) (internal quotation marks omitted). Here, there is no
evidence that either Mr. Young or Mr. Perry provided false testimony with the willful intent to
do so. At best, Mr. Young’s and Mr. Perry’s testimony could be described as somewhat
inconsistent with or contrary to the documentary evidence, which might provide for ample
impeachment opportunity for Tecnomatic, but these inconsistencies do not rise to the level of
perjury. Indeed, “[t]his is not the case where the witness concocted some elaborate alibi defense,
only to later admit it was all a farce,” nor is this a case where “the witnesses have admitted that
their prior testimony in discovery or at trial was false.” Id. (citing United States v. Griffin, 310
F.3d 1017, 1023-24 (7th Cir. 2002) (defendant created an alibi replete with falsehoods that was
unsupported by witnesses allegedly part of the alibi); Allen v. Chicago Transit Auth., 317 F.3d
696, 702 (7th Cir. 2003) (plaintiff testified in a deposition that he had recorded conversations
supporting his discrimination claim, but later admitted that he had not recorded those
conversations).
a.

Mr. Young’s Deposition Testimony.

Tecnomatic has not demonstrated that Mr. Young provided false testimony with the
willful intent to do so. Tecnomatic argues that Mr. Young claimed in his deposition that “Eagle
was given ‘only product drawings of the stator. . . . They did not have access to the equipment,
nor drawings.’” [Dkt. 214-1 at 9 (emphasis in original).] As noted by Remy, Tecnomatic’s

8

quote above is not a direct quote from Mr. Young’s deposition. Rather, it is the combination of
two statements made by Mr. Young at two different times in his deposition. Tecnomatic cited
only to page 59 of Mr. Young’s deposition transcript in support of a quote that was pieced
together from two pages of testimony that were four pages apart. [Dkt. 240 at Ex. A at 55:10-11
and 59:15-16.] Tecnomatic cannot cobble together parts of Mr. Young’s answers to different
questions on different pages of his deposition transcript in an attempt to create a claim for
perjury. Tecnomatic’s advocacy for its position flirts with Federal Rule of Civil Procedure 11’s
requirement that “factual contentions have evidentiary support.”

Fed. R. Civ. P. 11(b)(3).

Tecnomatic is cautioned to exercise care when making such representations to the Court in the
future.3
At best, Mr. Young’s testimony highlighted by Tecnomatic illustrates confusion between
Mr. Young and Ms. Cenar (Tecnomatic’s lawyer), which was clarified by additional testimony
from Mr. Young.4 Mr. Young testified that in the spring of 2007, Eagle was provided “only
product drawings of the stator” in response to Ms. Cenar’s question of whether Eagle was
3

Tecnomatic also misinforms the Court that according to Mr. Young, “Remy provided Eagle
only with product drawings of the stator (the finished product), but not the production line or the
equipment used to manufacture the stator.” [Dkt. 214-1 at 8.] This is factually incorrect. Mr.
Young conclusively testified that Eagle had access to Tecnomatic’s equipment and that they
photographed the equipment. [Dkt. 240 at Ex. A at 53:4-53:22 and 57:5-57:21.] Although
Tecnomatic does not appear to claim Mr. Young testifying falsely regarding Eagle’s access to
the equipment, Mr. Young’s clarification of his response demonstrates the forthcoming nature of
his testimony and raises serious questions for the Court regarding the veracity of Tecnomatic’s
counsel’s advocacy.
4

Although Tecnomatic repeatedly refers to Mr. Young as Remy’s Rule 30(b)(6) witness, Mr.
Young was designated as the Rule 30(b)(6) witness for Remy for a limited number of topics –
none of which included documents or information provided by Remy to third party suppliers,
such as Eagle, because this was not a topic in the Rule 30(b)(6) notice served by Tecnomatic.
[See Dkt. 240 at Ex. C; Dkt. 240 at 7, n.6.] Although Mr. Young is still expected to testify
truthfully, his statements regarding documents provided by Remy to third party suppliers was
based on his personal knowledge and not as the corporate representative for Remy. Therefore,
Remy had no obligation to educate Mr. Young on such topic.
9

provided anything “besides photographs, broken tools and the twist bench that Tecnomatic built
for EP 8.” [Dkt. 240 at Ex. A at 53-55; id. at Ex. A at 55:6-55:11.] Mr. Young also testified that
during Remy’s work on Phase II equipment (which was established by earlier questioning as the
spring or first quarter of 2007), Eagle “did not have access to the equipment, nor drawings.”
[Dkt. 240 at Ex. A at 58-59; id. at Ex. A at 59:14-59:16.] Because emails from April and May
2008 between Mr. Young and others contain drawings of Tecnomatic’s “twist tool,” Tecnomatic
argues that Mr. Young committed perjury by testifying that Eagle was not sent Tecnomatic
drawings. Tecnomatic’s argument ignores additional testimony from Mr. Young.
Most significantly, the line of questions on which Tecnomatic focuses related to the
spring of 2007. Tecnomatic did not, as it seems to suggest, ask Mr. Young if Remy ever sent
Eagle copies of Tecnomatic drawings. Even so, Mr. Young testified later in his deposition that
Remy asked Tecnomatic for tooling drawings for the purpose of finding another source for
producing the tooling. [Dkt. 240 at Ex. A at 96:12-97:5 (“The reason we needed the drawings
was to develop alternative sources for the twist tool” and referencing “during 2007, and maybe
even summer” as the time period at issue).] Although this testimony is not entirely consistent
with emails showing Mr. Young transmitting Tecnomatic drawings to Eagle, it does suggest an
intent on the part of Mr. Young to testify truthfully and at best creates a basis for Tecnomatic to
attempt to impeach Mr. Young’s testimony at trial. Tecnomatic has not provided the proverbial
smoking gun to show that Mr. Young testified falsely with the intent to do so. The documents
cited by Tecnomatic may suggest Mr. Young’ testimony is unclear or confused, but Tecnomatic
is far from proving perjury.5

5

Tecnomatic’s Supplemental Submission is no more compelling. [See Dkt. 308.] Dan Hanson’s
Affidavit, as the President of Eagle, may establish that Tecnomatic documents were sent to
10

b.

Mr. Perry’s Deposition Testimony.

Tecnomatic also argues that Stuart Perry – a former employee of Remy – testified falsely.
Mr. Perry testified that he had the impression that Eagle was provided copies of the
Tecnomatic’s drawings for the tooling. [Dkt. 216 at Ex. J at 280:12-13 and 16 (“Q. And was
Mark Stephenson providing Eagle with copies of Tecnomatic’s tooling? . . . . A. I was of the
impression that he was.”).] Tecnomatic argues that “[i]t is simply not credible for Perry to claim
he did not know of Remy’s unlawful conduct when he was directly responsible for compiling
Tecnomatic’s highly confidential information and equipment for delivery to Eagle.” [Dkt. 241-1
at 11.] Credibility is an issue for the jury to determine – it is not synonymous with perjury. See
Montaño, 535 F.3d at 565 (holding that “inconsistencies of this sort are the prototypical products
of ‘confusion, mistake, or faulty memory,” and that “[t]hese inconsistencies certainly bear on
[the witness’s] credibility . . . but in the absence of other evidence of a deliberate falsehood do
not permit the inference that [the witness] committed perjury”); Allen, 317 F.3d at 703 (“Perjury
is a circumstance to be weighed by the jury in determining a witness’s credibility rather than a
ground for removing the issue of credibility from the jury by treating the witness’s entire
testimony as unworthy of belief.”) (citation omitted). Tecnomatic will be given an opportunity
to attempt to impeach Mr. Perry and call into question Mr. Perry’s credibility to the jury;
however, the evidence presented falls short of satisfying the definition of perjury – that Mr. Perry
provided false testimony with the willful intent to do so.
Tecnomatic argues that Mr. Perry’s statement that he did not have personal knowledge of
whether Remy was sending Tecnomatic information and drawings to Eagle is false based on
emails produced after Mr. Perry testified. [Dkt. 214-1 at 11.] After careful consideration of Mr.

Eagle, but it is not evidence that Mr. Young testified falsely about his personal knowledge that
he did not know what was sent to Eagle.
11

Perry’s testimony and the emails submitted by Tecnomatic, the Court concludes that the
evidence presented does not establish that Mr. Perry testified falsely. Exhibit K is an email
where Mr. Perry forwarded drawings to Mark Stephenson, but Mr. Perry is not a party to the
email wherein those drawings were forwarded to anyone else. Mr. Perry is not a party to any of
the emails included in Exhibit L. With respect to Exhibit M, the email deals with the tooling
itself, and not drawings, but in any event, the discussion is that Mr. Perry brought the the tool for
Mr. Stephenson to take to Eagle – whether Mr. Perry knows that this occurred or not is not
contained within Exhibit M. Mr. Perry’s testimony that he was “under the impression” that
Eagle was provided copies of Tecnomatic’s tooling drawings appears accurate and as far as Mr.
Perry could testify based on his personal knowledge evidenced in Exhibits K, L, and M. These
emails do not show that Mr. Perry intentionally testified falsely.
2.

Remy Did Not Deceive Tecnomatic Regarding Its Intent to Withhold
Documents from Production in the 2008 Action and Has Produced the
Documents at Issue in Response to the Subsequent Discovery
Requests.

Tecnomatic claims that Remy willfully withheld documents proving that Remy sent
Eagle and Odawara videos and Tecnomatic’s technical drawings, manuals, and software, despite
Requests for Production of Documents served in the 2008 action requesting those documents.
Tecnomatic argues that documents showing that Remy transmitted Tecnomatic drawings to third
parties were relevant in the 2008 action and were requested in discovery served in that case.6
Although Tecnomatic cites generally to its 2008 action Requests for Production of Documents to

6

Although Tecnomatic argues that the documents at issue were relevant in the 2008 action [see
Dkt. 246 at 3-7], the Court need not determine the validity of Remy’s relevancy objections in
ruling on the instant Motion. The documents at issue are now being produced and Tecnomatic
never challenged Remy’s relevance objections at the time the discovery responses in the 2008
action were received. As a result, this issue is moot because Remy is no longer refusing
production on a relevancy objection.
12

Remy [Dkt. 216 at Ex. A] as evidence of Tecnomatic seeking these documents, none of the 27
Requests for Production of Documents specifically seek the documents that Tecnomatic claims
were withheld. The closest Tecnomatic comes to showing that it requested Tecnomatic drawings
sent to third parties is (1) requests for computer files of Remy employees and (2) an
Interrogatory that seeks the suppliers of the replacement system and all “facts and documents
concerning the information provided to such suppliers.” [Dkt. 240-7 at Interrogatory No. 2.]7 It
is undisputed that Remy responded to these requests with a relevancy objection and a clear
expression of its position that such documents would not be produced.
For example, Tecnomatic’s Interrogatory No. 2 to Remy in the 2008 action sought the
identity of the supplier of the replacement system and all facts and documents concerning the
information provided to those suppliers.

Remy objected that “‘all facts and documents

concerning the information provided to such suppliers’ is overly broad, not relevant to any
party’s claim or defense in this action, and improperly seeks discovery in the Illinois Action8 in
contravention of the Federal Rules of Civil Procedure 26(a) and 26(d).”
Interrogatory No. 2.]

[Dkt. 240-7 at

Tecnomatic was on notice that Remy specifically objected to this

discovery request, yet Tecnomatic apparently did nothing to pursue the production of this

7

Tecnomatic’s Interrogatory No. 2 to Remy specifically identifies “requests for proposal(s)
and/or requests for quote(s) issued and/or received by Remy” as documents to be identified, but
does not specifically seek Remy’s documents that may have been sent to the supplier of the
replacement system. [Dkt. 240-7 at Interrogatory No. 2.] Even Tecnomatic describes its
discovery requests as “broad enough to encompass documents related to Remy’s transmission of
Tecnomatic’s materials to third parties.” [Dkt. 214-1 at 3.] Tecnomatic did not specifically
request the documents at issue.
8

The reference to the “Illinois Action” is a reference to Tecnomatic’s more recent claims in this
matter, which were originally field in Illinois prior to their transfer to this Court.
13

information and documentation in the 2008 action that nearly proceeded to trial.9 Specifically,
Tecnomatic did not meet and confer with Remy, and it did not file a motion to compel.
The same is true with regard to the computer files of Remy’s employees. Tecnomatic
requested “[a]ll computer files and back up discs kept and maintained by Kevin Young during
his employment at Remy.” [Dkt. 216-2 at 4 (Request for Production No. 2); see also id. at 3
(Request for Production No. 1) (relating to Stuart Perry).] Remy responded to this Request
solely with objections and no indication that it would be providing any documents (i.e., any of
Mr. Young’s or Mr. Stuart’s computer files) in response. [Id.] Tecnomatic did not meet and
confer regarding these objections or move to compel responses prior to deposing Messrs. Young
and Perry.
However, since the consolidation of the 2008 action with Tecnomatic’s more recent
claims, Remy responded to the same discovery request by objecting, but also stating that “Remy
has agreed to gather and apply search terms to all potentially relevant electronically stored
information kept and maintained by Mr. Young that is within Remy’s possession, custody or
control.” [Dkt. 216-2 at 16 (Request for Production No. 2).] The same is true with respect to the
Requests for Production of Documents related to Mr. Perry’s computer files. [Dkt. 216-2 at 16
(Request for Production No. 1).] Remy then produced documents responsive to these requests in
the 2011 action, consistent with its position that these documents were not relevant in the 2008
action, but are relevant to the 2011 action.
3.

Even if Remy Committed a Discovery Violation, the Sanction
Requested Would Not Be Proportionate to the Gravity of the Alleged
Offense.

9

Remy states in its response brief that Tecnomatic never challenged Remy’s objections to the
2008 action discovery requests. [Dkt. 240 at 11 (“Rather than meeting and conferring with
Remy to narrow the scope of the requests, or even moving to compel production of the requests,
Tecnomatic did nothing.”).] Remy did not dispute this fact.
14

Even if Tecnomatic had shown that Remy’s witnesses testified falsely or that Remy had
willfully withheld responsive documents from production, the sanction requested – dismissal of
Remy’s claims – would not be proportionate to the gravity of the alleged offense. See Montaño,
535 F.3d at 563 (“The sanction imposed should be proportionate to the gravity of the offense.”)
(citation omitted). Before dismissing the case, the Court must consider the appropriateness of
lesser sanctions and explain why those sanctions are insufficient. Here, even had Tecnomatic
overcome the first hurdle of proving that Remy knowingly allowed witnesses to perjure
themselves and willfully withheld relevant documents from production in the 2008 action, the
Court cannot find that other less severe sanctions would not be appropriate in this situation.
Tecnomatic seeks less dramatic sanctions in its conclusion. Specifically, Tecnomatic
requests, in the alternative, that the court “requir[e] Remy’s witnesses to submit to additional
depositions, with costs and attorneys’ fees to be borne by Remy.” [Dkt. 214-1 at 14.]10 The
Court remains unconvinced that a fee-shifting sanction related to further depositions of Messrs.
Young and Perry is appropriate; however, these witnesses can be redeposed related to the claims
and defenses presently pending in this matter that are different from the claims in the 2008
action, including discovery that was not produced in the 2008 action on the basis of relevancy. If
the parties cannot agree to additional depositions of these individuals, Tecnomatic can seek leave
of Court to take these depositions pursuant to Fed. R. Civ. P. 30(a)(2)(A)(ii), once its meet and
confer obligations have been satisfied. The Court does not find, however, that Tecnomatic

10

Tecnomatic also suggests that the Court could “preclud[e] Remy from asserting any defenses
to any of Tecnomatic’s claims related to Remy’s transfer of Tecnomatic’s information to Eagle
and Odawara” [Dkt. 214-1 at 14], but this sanction would be tantamount to awarding Tecnomatic
a default judgment – similar to a dismissal of Remy’s claims – which also would be
disproportionate to the alleged misconduct.
15

would be entitled to its fees or costs to depose these individuals because no discovery violation
or abuse of the judicial process has been established.
III.

Conclusion.
For the above-stated reasons, the Court recommends DENYING Tecnomatic’s Motion

for Sanctions [Dkt. 213].11 Federal Rule of Civil Procedure 37(a)(5)(B) requires the Court to
hold a hearing and consider the apportionment of attorney’s fees and expenses when such a
motion is denied, and both parties have requested attorney’s fees (or other “appropriate relief”).
Accordingly, Remy is ordered to file a petition for such fees and expenses on or before March
11, 2013, which will be addressed as a separate matter.

Date:

02/19/2013
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
All Electronically Registered Counsel

11

As a nondispositive Order, this Order is issued pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.
R. Civ. P. 72(a). Either party may serve and file objections to this order within 14 days after
being served with a copy. Fed. R. Civ. P. 72(a).
16