Everlast World's Boxing Headquarters Corporation v. Ringside, Inc. et al

Filing 112

MEMORANDUM AND ORDER granting 75 Motion to Compel. [Court notation: This order is a duplicate of the immediately preceding Order to Show Cause. The present order both grants Plaintiff's motion to compel and orders Defendant to show cause regarding a potential entry of discovery sanctions. The Order was entered under two separate docket entries for administrative/docket management purposes.] Signed by Magistrate Judge Kenneth G. Gale on 9/5/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EVERLAST WORLD’S BOXING
HEADQUARTERS CORPORATION,

)
)
)
Plaintiff,
)
)
RINGSIDE, INC., et al.,
)
)
Defendants.
)
___________________________________ )

Case No.: 13-2150-CM-KGG

MEMORANDUM & ORDER ON
PLAINTIFF’S MOTION TO COMPEL
AND ORDER TO SHOW CAUSE
Before the Court is the “Motion to Compel Production of Documents” (Doc.
75) filed by Plaintiff. For the reasons set forth below, Plaintiff’s motion is
GRANTED.
BACKGROUND
The background of this case was recently summarized in this Court’s Order
of June 23, 2014 (Doc. 71), granting in part and denying in part Defendant’s
“Motion to Enforce Discovery and for Sanctions.” That summary stated in part
[t]he present action was filed on July 9, 2012, in
the United States District Court for the Southern District
of New York. Claims were asserted against the various
Defendants for breach of contract, trademark
infringement, false designation of origin and unfair
competition, trademark dilution, and unjust enrichment.

(Doc. 1.) In August 2012, Defendants moved to dismiss
the Complaint or, in the alternative, transfer it to the
District of Kansas. (Doc. 6.)
Defendant Ringside filed Suggestions of
Bankruptcy in November 2012, in the United States
Bankruptcy Court for the District of Kansas. (Doc. 17.)
This triggered an automatic bankruptcy stay. The present
action was transferred to the District of Kansas on March
13, 2013. (Doc. 22.)
Judge Berger of the United States Bankruptcy
Court for the District of Kansas denied the Motion to
Enforce Automatic Stay regarding Plaintiff’s claims
against Defendants RAL and Combat, by Order dated
September 27, 2013. This permitted those counts to go
forward in this Court. (See Doc. 37, at 7.) Plaintiff filed
a Motion to Amend the Complaint (Doc. 36) on
December 2, 2013, which was granted on December 23,
2013 (Doc. 41).
(Doc. 71, at 1-2.)
The document requests at issue were served on March 27, 2014. (Doc. 60.)
Defendant received an extension to respond to the requests and ultimately served a
notice of “responses” on May 5, 2014, but no documents were actually produced.
(Doc. 76, at 3; Doc. 67.) Plaintiff’s counsel made sufficient effort to communicate
with opposing counsel in compliance with D. Kan. Rule 37.2 prior to filing the
present motion, despite defense counsel’s blatant disregard for the conferral
process. (Doc. 76, at 3-7.1) Plaintiff’s counsel made numerous inquiries with

1

Because Defendant’s response to Plaintiff’s motion fails to address these factual
contentions, the Court accepts them as true for the purposes of this motion.
2

defense counsel as to when documents would be produced. The inquiries were
either ignored or were given blatantly misleading responses, including an instance
in which defense counsel failed to attend a meeting scheduled in defense counsel’s
own office to discuss these discovery issues. (Id., at 5.)
Based on representations from opposing counsel, Plaintiff sought two
extensions to file the present motion, which was filed on July 3, 2014. Defendant
also sought and received two extensions to respond to Plaintiff’s motion.
DISCUSSION
A.

Standards for Discovery.
Fed. R. Civ. P. 26(b) states that “[p]arties may obtain discovery regarding

any matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Courts of
this District have long held that “‘[d]iscovery relevance is minimal relevance,’
which means it is possible and reasonably calculated that the request will lead to
the discovery of admissible evidence.” Teichgraeber v. Memorial Union Corp. of
Emporia State University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal
citation omitted). “Relevance is broadly construed at the discovery stage of the
litigation and a request for discovery should be considered relevant if there is any
3

possibility the information sought may be relevant to the subject matter of the
action.” Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27
(D.Kan.1991).
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of
relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request. See Swackhammer
v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that
the party resisting a discovery request based on overbreadth, vagueness, ambiguity,
or undue burden/expense objections bears the burden to support the objections).
Although the scope of discovery is broad, it is not unlimited. If the
proponent has failed to specify how the information is relevant, the Court will not
require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D.
649 (D.Kan.1995).
Even so, courts look “with disfavor on conclusory or boilerplate objections
that discovery requests are irrelevant, immaterial, unduly burdensome, or overly
broad.” Id., 650. “Unless a request is overly broad, irrelevant, or unduly
burdensome on its face, the party asserting the objection has the duty to support its
objections.” Sonnino v. University of Kansas Hosp. Authority, 221 F.R.D. 661, n.
4

36 (D.Kan.2004) (citing Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666,
670 (D.Kan. 2003)); Cont’l Ill. Nat’l Bank & Trust Co. of Chicago v. Caton, 136
F.R.D. 682, 685 (D. Kan. 1991) (stating that a party resisting a discovery request
based on relevancy grounds bears the burden of explaining how “each discovery
request is irrelevant, not reasonably calculated to the discovery of admissible
evidence, or burdensome”). Thus, “the objecting party must specifically show in
its response to the motion to compel, despite the broad and liberal construction
afforded by the federal discovery rules, how each request for production or
interrogatory is objectionable.” Sonnino, 221 F.R.D. at 670–71 (internal citation
omitted). The Court will examine the remaining discovery issues in this context.
B.

Delayed Responses.
Plaintiff argues that in response to Requests for Production Nos. 1-4, 6-8,

12-19, 21, and 29,2 Defendants respond that “[n]on-privileged information will be
produced to the extent they [sic] exist and haven’t already been produced.” (Doc.
76, at 8; Doc. 75-1, at 1-9, 11.) These responses were made on May 5, 2014, and,
as of the filing of the present motion, no documents had been produced. Plaintiff’s
motion is GRANTED in regard to these document requests and Defendant is

2

In response to Requests Nos. 7, 8, and 29, Defendants merely respond that the
documents “[w]ill be produced.” (Doc. 75-1, at 11.) Defendant is ordered to produce the
documents, without objection, in accordance to the terms of this Order.
5

ORDERED to produce responsive documents pursuant to this Order.
B.

Conditional Responses.
In response to Requests Nos. 1, 2, 4, 6, and 13, Defendant stated that “non-

privileged information will be produced to the extent they exist and haven’t already
been produced.”3 (Doc. 76, at 8; Doc. 75-1, at 1-6.) The Court has previously
voiced its disapproval in this case for “conditional responses” in regard to
discovery responses in this case. (Doc. 71, at 7.) See Westlake v. BMO Harris
Bank N.A., 2014 WL 1012669, *3 (D. Kan. March 17, 2014) (citing Sprint
Comm'n Co., L.P. v. Comcast Cable Comm'n, LLC, Nos. 11–2684–JWL,
11–2685–JWL, 11–2686–JWL, 2014 WL 54544, *2, 3 (D.Kan. Feb. 11, 2014).
The Court is in agreement with the Sprint decision that found such conditional
responses to be “invalid,” “unsustainable,” and to “violate common sense.” 2014
WL 54544, *2, 3. All such conditional responses are improper and Defendants are
instructed to provide supplemental responses without such language. Further, as to
responsive documents that have “already been produced,” Defendants are
instructed to identify by Bates number any previously produced material that is
responsive to the requests at issue.

3

Defendants responses include several other answers with this same wording.
Plaintiff has, however, only addressed the responses to Requests Nos. 1, 2, 4, 6, and 13 in
its motion.
6

D.

Boilerplate Objections.
Plaintiff argues that Defendant raised boilerplate objections in response to

Requests Nos. 20, 22-26, 28-40, by failing to “describe or specify how these
requests are vague, ambiguous, and overly burdensome.”4 (Doc. 76, at 9; see also
Doc. 75-1, at 8-16.) Plaintiff also contends that Defendants’ relevance objections
to Requests Nos. 23-26, 28, and 30-40 are also boilerplate. (Doc. 76, at 10-12; see
also Doc. 75-1, at 9-15.)
As stated previously, courts look “with disfavor on conclusory or boilerplate
objections that discovery requests are irrelevant, immaterial, unduly burdensome,
or overly broad.” Gheesling, 162 F.R.D. at 650. Defendants’ responses are the
most glaring examples of boilerplate objections. Defendants merely provide a
laundry list of objections then wholly fail to provide even the slightest explanation
as to why they find the discovery requests to be vague, ambiguous, unduly
burdensome, overbroad, and/or irrelevant. (Doc. 75-1, at 8-15.) Plaintiff has
adequately established the relevance of these requests (see Doc. 76, at 10-12) and
Defendants make no effort in their responsive brief to contradict these arguments.
Plaintiff’s motion is, therefore, GRANTED in regard to these Requests.

4

Defendant’s response to Request No. 29 does not contain any objections,
boilerplate or otherwise.
7

Defendant is ordered to provide supplemental responses without such objections
and to produce any documents withheld on the basis of any of these objections.
E.

Privilege Log.
Plaintiff argues that Defendants have not produced a Fed.R.Civ.P. 26(b)(5)

privilege log, although Defendants have raised the attorney-client privilege in
regard to Requests Nos. 1-6, 12-21, 24-28, 30-45 and the work product doctrine in
response to Requests Nos. 1-6, 12-21, 27-28, and 30-45.5 Defendants are ordered
to provide a privilege log encompassing any and all responsive documents being
withheld on a claim of the attorney-client privilege or the work product doctrine.
Defendants are directed to this Court’s prior decisions of Helget v. City of Hays,
No. 13-2228-KHV-KGG, 2014 WL 1308890 (D. Kan. March 28, 2014) and Kear
v. Kohl's Dept. Stores, Inc., No. 12–1235–JAR–KGG, 2013 WL 3088922, *3 (D.
Kan. June 18, 2013) for discussions as to what constitutes an adequate privilege
log providing sufficient information to allow the other party assess the claimed to
privilege. Defendants are further ordered to produce any responsive, nonprivileged documents and are instructed that any additional failure or delay in
providing a sufficient privilege log will result in the Court deeming the privilege to

5

The Court notes that Defendants have also raised the attorney-client privilege
and work product doctrine in response to Request No. 46. (Doc. 75-1, at 17-18.)
8

have been waived.
F.

Documents Previously Produced.
In response to Requests Nos. 36, and 38-44, Defendants state that

“responsive documents have previously been produced . . . .”6 (Doc. 76, at 14;
Doc. 75-1, at 14-.) Plaintiff argues, however, that it was improper for Defendants
to fail to “indicate what documents, previously produced, are responsive to each
request.” (Id.) The Court agrees. Defendants are instructed to identify by Bates
number any previously produced material that is responsive to the requests at issue.

G.

Request No. 25.
This request seeks “all documents previously included in the Combat Brands

website which refer to Everlast or Everlast branded merchandise, including but not
limited to any website pages removed from the site.” (Doc. 75-1, at 10.) After
stating various boilerplate objections (addressed supra), Defendants object that the
information is “equally accessible” to Everlast. (Id.) Plaintiff argues this response
is illogical as it relates to pages that have been removed and are, therefore,
inaccessible by their very nature. The Court agrees. Plaintiff’s motion is

6

Defendants make the same response to Requests Nos. 45 and 46. The Court’s
Order shall apply to these responses as well.
9

GRANTED in regard to Request No. 25. Defendants are ordered to produce all
documents relating to web pages of Everlast merchandise since Combat Brands
took ownership or control of the website including, but not limited to, those
removed from the website.
H.

Request No. 10.
Finally, Plaintiff points out that Defendants did not respond or object to

Plaintiff’s Request No. 10. Defendant is ordered to respond, without objection as
all objections have been waived by Defendant’s failure to respond.
I.

Continuing Discovery.
In their discovery responses, Defendants make frequent reference to the fact

that “discovery in this case is continuing and such Documents have not yet all been
obtained.” (See generally Doc. 75-1.) Plaintiff does not take issue with this
statement in its motion. Defendants do, however, focus on this issue in their
response. As such, the Court is compelled to address it.
In their responsive brief, Defendants argue that “several of plaintiff’s RFPs
cannot be responded to until defendants receive all of plaintiff’s court-ordered
production . . . .” (Doc. 93, at 1.) Fed.R.Civ.P. 34 document requests are directed
at “items in the responding party’s possession, custody, or control . . . .”
Defendants position that it cannot respond to Plaintiff’s document requests until it
10

receives all of the documents Plaintiff has been required to produce is nonsensical
and disingenuous. The Court sees this as another blatant attempt by Defendant to
flaunt the federal rules and stonewall the discovery process. Defendants spend an
significant portion of their responsive brief complaining about Plaintiff’s
“gamesmanship” in discovery (see Doc. 93, at 2-5) – an issue which is wholly
irrelevant to whether or not Defendants have provided sufficient discovery
responses. Defendants would have been better served to direct that effort at
actually responding to the issues in Plaintiff’s motion, or better yet, towards
providing adequate discovery responses.
J.

Sanctions.
An award of sanctions in a discovery dispute is governed by Fed.R.Civ.P.

37, which provides in relevant part that
[i]f the motion is granted – or if the disclosure or
requested discovery is provided after the motion was
filed – 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 that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion,
including attorney's fees. But the court must not order
this payment if:
(I) the movant filed the motion before
attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party's nondisclosure,
response, or objection was substantially
11

justified; or
(iii) other circumstances make an award of
expenses unjust.
(Emphasis added.) See also Torres v. Bodycote Intern, Inc., No. 13-1245-EFMKGG, 2014 WL 559070, *1-2 (D. Kan. Feb. 13, 2014); Kear v. Kohl’s Dept.
Stores, Inc., No. 12-1235-JAR-KGG, 2013 W 3088922, *6 (D.Kan. June 18,
2013).
The purpose of sanctions is not merely to reimburse the wronged party or
penalize the offending party, but to deter others from engaging in similar conduct.
National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643,
96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). “[T]he limit of any sanction award should
be that amount reasonably necessary to deter the wrongdoer.” White v. GMC, 908
F.2d 675, 685 (10th Cir.1990).
Based on the foregoing analysis, the Court finds that Defendant’s position in
regard to these discovery disputes was not only unreasonable, but in blatant
disregard of the rules and spirit of discovery. As discussed above, Defendants
flouted the conferral process, often intentionally misleading Plaintiff as to their
intentions regarding the discovery at issue. Defendants failed to provide the
necessary privilege log. Defendants nonsensically argued it was impossible for
them to respond to document requests – seeking items in their possession, custody,
12

or control – until they received discovery responses from Plaintiff. In their
responsive brief, Defendants made no attempt to support the boilerplate objections
they raised, but rather complained about Plaintiff’s “gamesmanship,” which is
entirely irrelevant to the issues raised in Plaintiff’s motion. Defendants have
wholly failed to provide the Court with any – let alone substantial – justification
for their inaction in regard to the discovery at issue.
Plaintiff, laudably, did not request sanctions in the present motion. Before
the Court awards sanctions sua sponte, Defendants are entitled to their
“opportunity to be heard.” Fed.R.Civ.P. 37. Defendants are, therefore, ordered to
file a memorandum to show cause as to why sanctions should not be awarded on or
before September 12, 2014. Plaintiff may file a response within seven (7) days
thereafter. No reply shall be filed.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
75) is GRANTED as more fully set forth above. Although the Court notes that
Defendants have provided supplemental discovery responses since the filing of
Plaintiff’s motion (Doc. 110), Defendants are ORDERED to provide additional
supplemental discovery responses consistent with the terms of this Order, without
objection, within thirty (30) days of the date of this Order.
13

IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 5th day of September, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

14