Everlast World's Boxing Headquarters Corporation v. Ringside, Inc. et al
Filing
71
MEMORANDUM AND ORDER granting in part and denying in part 51 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/23/14. (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 DEFENDANTS’
MOTION TO ENFORCE DISCOVERY AND FOR SANCTIONS
Before the Court is the “Motion to Enforce Discovery and for Sanctions”
filed by Defendants. (Doc. 51.) For the reasons set forth below, Defendants’
motion is GRANTED in part and DENIED in part.1
1
As an initial matter, the Court addresses the “declaration” of attorney Jed
Schlacter attached as an exhibit to Plaintiff’s response brief. (Doc. 58-1, at 1-19.) To the
extent the document contains factual information, the Court will consider it a valid
declaration and its contents will be considered as an exhibit to Plaintiff’s response. Much
of the document, however, contains legal argument, which is in the nature of a pleading,
not in the nature of a sworn declaration. This is improper and will not be considered by
the Court. Mr. Schlacter is a New York attorney who is not licensed in the state of
Kansas. Plaintiff has local counsel from Kansas City, who have filed and signed
Plaintiff’s response brief. (Doc. 58.) Local counsel has not, however, signed the
document containing Schlacter’s legal analysis, as required for any “pleadings or other
papers singed by an attorney admitted pro hac vice . . . .” D. Kan. Rule 83.5.4(c). Had
counsel wanted to include Mr. Schlacter’s legal argument in a properly filed brief –
signed by local counsel – they could, and should, have done so. They did not. As such,
any legal argument contained in Mr. Schlacter’s “declaration” (Doc. 58-1, at 1-19) will
not be considered by the Court.
BACKGROUND
The 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).
Defendants served the discovery at issue on December 6, 2013. (Doc. 39.)
A Scheduling Order was entered on January 28, 2014, which included the
2
following in regard to this discovery: “Defendants’ discovery originally served in
December 2013, shall be deemed to have been served on Plaintiff on January 8,
2014, for purposes of calculating a response date.” (Doc. 48, at 5.) This
adjustment was made because discovery was served before the Rule 26(f)
conference in violation of Rule 26(d)(1). Plaintiff’s responses were, therefore, due
on or before February 7, 2014. Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A). Having
received no discovery responses, defense counsel sent correspondence to
Plaintiff’s counsel on February 14, 2014. (Doc. 52, at 7.) Without responding to
defense counsel’s communication, Plaintiff served discovery responses, largely
consisting of unsupported objections (discussed infra), on February 19, 2014. (See
Docs. 53-3, 53-4, 53-5.) Further, Plaintiff produced no responsive documents in
response to the discovery requests. These responses are the subject of the present
motion. Defense counsel made sufficient effort to communicate with Plaintiff’s
counsel in compliance with D. Kan. Rule 37.2 prior to filing the present motion.
(Doc. 52, at 7-11.)
DISCUSSION
A.
Timeliness Objection.
Defendants object that Plaintiff’s discovery responses were 12 days late
“[w]ithout seeking leave of Court or an extension from defense counsel . . . .”
3
(Doc. 52, at 12.) According to Fed.R.Civ.P. 33(b), a “responding party must serve
its answers and any objections within 30 days after being served with the
interrogatories.” (Emphasis added.) The rule continues that “[a]ny ground not
stated in a timely objection is waived unless the court, for good cause, excuses the
failure.” Id., at (b)(4).2 These same parameters apply to document requests under
Fed.R.Civ.P. 34, absent the signature requirement. To establish “good cause,” a
party must show
‘at least as much as would be required to show excusable
neglect.’ The party failing to assert timely objections
must show it could not have reasonably met the deadline
to respond despite due diligence. Mistake of counsel,
ignorance of the rules, or lack of prejudice to the
opposing party generally does not constitute ‘good
cause.’
Linnebur v. United Telephone Ass’n, 10-1379-RDR, 2012 WL 1183073, at *6 (D.
Kan. April 9, 2012).
Plaintiff responds that there are “extenuating circumstances” that establish
the requisite “good cause” to allow it to serve responses to discovery out of time.
(Doc. 58, at 2.) According to Plaintiff’s counsel, good cause is established by the
2
The rule also requires that the answers be signed by the person making them,
with the attorney signing any objections. Id., at (b)(5). Plaintiff is instructed to comply
with this portion of the rule when submitting its supplemental responses as Ordered
herein.
4
fact that he “is a practitioner with one associate . . . with limited resources to
review, analyze and respond to such broad and expansive discovery requests.”
(Id., at 2-3.) Further, Plaintiff’s counsel contends that Plaintiff and its parent
company “have executives spread throughout the country and internationally . . .
making it quite challenging to address this breadth of discovery in a compressed
time frame.” (Id., at 3.)
The Court is not persuaded by Plaintiff’s reasoning. Plaintiff’s counsel was
aware of the resources of his firm and the international status of his client at the
time he chose to initiate this lawsuit. While these issues may have made it difficult
for Plaintiff’s counsel to timely respond to the discovery requests, they do no
excuse Plaintiff’s failure to request a timely extension to do so. Plaintiff also has
local counsel who are, or should, be available to be involved in this litigation as
needed. Further, as discussed above, Plaintiff was given an additional 30 days to
respond to the discovery requests per the Court’s Scheduling Order. (Doc. 48, at
5.) Finally, the Court is unpersuaded by Plaintiff’s argument that its failure should
be excused by Defendants’ alleged persistent failure to meet case deadlines. (Doc.
48, at 6.) Whether or not this is true, it is completely irrelevant to the issue of
whether Plaintiff filed timely discovery responses and/or has established good
cause for the failure to do so.
5
Given the obstructive nature of Plaintiff’s discovery responses, discussed
infra, the Court does not find that the failure to respond in a timely manner – or
request a timely extension to do so – is supported by good cause. Rather than
deem all of Plaintiff’s objections waived, however, the Court will address the
discovery issues on their merits.
B.
General and Conditional Objections.
Plaintiff’s discovery responses all begin with a series of “General
Objections,” which include the following:
4.
Plaintiff objects to the requests to the extent
they seek information protected by the attorney-client
privilege, the attorney work product doctrine, joint
defense privilege, or any other lawfully recognized
privilege or immunity. Inadvertent production of any
such information shall not constitute a waiver of any
privilege or any other ground for objecting to discovery
with respect to such information, or any information
obtained therefrom, or with respect to the subject matter
thereof. Nor shall such inadvertent production waive
Plaintiff’s right to object to the use of any such
information, or the information obtained therefrom,
during any subsequent proceedings.
5.
Plaintiff objects to each request that seeks
information that is confidential, proprietary, or in the
nature of trade secret. Plaintiff will produce such
documents, if properly producible, only pursuant to entry
of a protective order limiting dissemination of such
documents.
6.
Plaintiff objects to each request to the extent
that they fail to identify a proper time frame for
responsive information.
6
(Doc. 53-3, 53-4, 53-5, at 2-3.)
This Court has specifically held that “[t]hese type of objections are, at best,
worthless and improper.” Martin K. Eby Const. Co., Inc. v. OneBeacon Ins. Co.,
08-1250-MLB-KGG, 2012 WL 1080801 (D. Kan. March 29, 2012) (citing
Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 660-61 (D. Kan. 2004).
“‘Such objections are considered mere hypothetical or contingent possibilities,
where the objecting party makes no meaningful effort to show the application of
any such theoretical objection to any request for discovery.’” Id. At worst, these
types of objections leave the requesting party “unsure whether or not the objection
correlates to withheld information.” These general objections (Doc. 53-3, 53-4,
53-5, at 2-3) are, therefore, overruled.
The Court is equally disapproving of “conditional responses.” Such
responses occur when “a party asserts objections, but then provides a response
‘subject to’ or ‘without waiving’ the stated objections.” 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
7
WL 54544, *2, 3. All such conditional responses are improper and Plaintiff is
instructed to provide supplemental responses without such language. Given these
initial rulings, the Court’s analysis will now turn to the remaining disputes between
the parties.
C.
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
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
8
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.
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
9
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.
D.
Boilerplate Objections.
Defendants complain that “on numerous occasions throughout its discovery
responses, [Plaintiff] repeatedly raises the same monotonous objections that the
requests or interrogatories are vague, overly broad, burdensome, or not relevant,
without any substantive discussion.” (Doc. 52, at 13.) Such objections have been
raised in response to virtually all of the Requests for Production and Interrogatories
discussed in Section E., infra.
The objections contained in Plaintiff’s underlying discovery responses are,
for the most part, the epitome of boilerplate objections. As stated above, 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. Plaintiff makes little or no effort to explain why it finds the
discovery requests to be overbroad, burdensome, irrelevant, or not reasonably
10
calculated. The Court will further address this issue in regard to specific discovery
requests in the remaining portion of this Order.
E.
Specific Discovery Requests.
1.
Request for Admission No. 1.
Request for Admission No. 1 asks Plaintiff to admit that Ҥ18.6.3 of the
Boxing Products License Agreement does not specifically provide that, upon
termination of that agreement, [Plaintiff] could require [Defendant] Ringside to sell
no Licensed Products.” (Doc. 53-5, at 3.) Without any explanation, Plaintiff
objects that this is “an improper request for admission.” This conclusory objection
is overruled.
The remainder of Plaintiff’s response “refers” the Court and Defendants “to
all of the provisions of the License Agreement, as amended, to which reference is
made.” (Id.) The response continues that “[n]otwithstanding such objections,
plaintiff denies this request.” Defendants argue that the answer is “evasive and not
made in good faith and should be deemed admitted.” (Doc. 52, at 17.) While the
Court finds little or no substantive value to Plaintiff’s reference to “all the
provisions of the License Agreement,” the Court sees no basis to deem the request
admitted. Despite the limited value of the first two sentences of Plaintiff’s
response, that language does not contradict or negate the fact that the final sentence
11
unequivocally denies the Request for Admission. Plaintiff is, however, encouraged
to review the language of §18.6.3 of the Boxing Products License Agreement and
supplement its response, if necessary, given the Court’s ruling herein.
2.
Request for Production No. 1.
Request for Production No. 1 seeks “[a]ll documents identified, relied upon,
or referenced in your respective responses to the forgoing Interrogatories.” (Doc.
53-4, at 3.) Plaintiff objects that “on the grounds of vagueness, overbreadth,
burden, relevance, and as not reasonably calculated to lead to the discovery of
admissible evidence.” (Id.) These unfounded, boilerplate objections are
overruled summarily.
Subject to the stated objections, Plaintiff then refers Defendants to “Bates
Nos. E-0156 through 0243 previously produced; and see Trademark registrations
available at the Patent and Trademark Office website.” (Id.) The Court orders
Plaintiff to produce any trademark registrations in its possession, custody, or
control that it relied upon in responding to Defendants’ interrogatories, regardless
of their availability on a website. The Court also encourages Plaintiff to review its
response to the document request and verify that previously produced documents
Bates Nos. E-0156 through 0243 are the only other documents in its possession,
custody, and control that are responsive to this document request.
12
3.
Request No. 2.
This document request seeks “[a]ll non-privileged and non-work product
documents that relate in any way to the Petition.” (Doc. 53-4, at 3.) Plaintiff
objects that the request is vague, overbroad, burdensome, irrelevant, and not
reasonably calculated to lead to the discovery of admissible evidence. (Id.) The
Court finds that the request, on its face, is overly broad.
‘Relates to’ and ‘pertains to’ are considered ‘omnibus
terms.’ It is well established
that Courts in this District have held that a
discovery request may be facially overly broad if it
uses an ‘omnibus term’ such as ‘relating to,’
‘pertaining to,’ or ‘concerning.’ Johnson v. Kraft
Foods North America, Inc., 238 F.R.D. 648, 658
(D.Kan.2006) (citing Cardenas v. Dorel Juvenile
Group, Inc., 232 F.R.D. 377, 382 (D.Kan.2005)
(internal citations omitted)). ‘That rule, however,
applies only when the omnibus term is used with
respect to a general category or broad range of
documents.’ Id. See also Sonnino v. University of
Kansas Hosp. Authority, 221 F.R.D. 661, 667
(D.Kan.2004); Aikens v. Deluxe Fin. Servs., Inc.,
217 F.R.D. 533, 538 (D.Kan.2003).
Courts want to avoid a situation in which a
party upon whom discovery is served needs ‘either
to guess or move through mental gymnastics . . . to
determine which of many pieces of paper may
conceivably contain some detail, either obvious or
hidden, within the scope of the request.’ Id.
‘When, however, the omnibus phrase modifies a
sufficiently specific type of information,
document, or event, rather than large or general
13
categories of information or documents, the
request will not be deemed objectionable on its
face.’ Id.
Union Pacific R. Co. Y. Grede Foundries, Inc., No.
07–1279–MLB–DWB, 2008 WL 4148591, at *4 (D.Kan.
Sept.3, 2008).
U.S. v. Dillard, No. 11-1098-JTM-KGG, 2013 WL 74316, *2-3 (D. Kan. Jan. 7,
2013).
In regard to the discovery request at issue, the omnibus term “relates to”
modifies Plaintiff’s Petition. As such, it facially encompasses every aspect of
Plaintiff’s case and, thus, the broadest possible range of documents. There is no
sufficient modification of the omnibus term. Defendants’ motion is DENIED in
regard to Request for Production No. 2.
4.
Request No. 4.
This request seeks “[t]he PowerPoint referenced in the email from Gary
Dailey (Everlast) to Joe Taylor, dated June 14, 2011.” (Doc. 53-4, at 4.) Plaintiff
objects that the information is irrelevant and not reasonably calculated to lead to
the discovery of admissible evidence. (Id.) The Court finds that Defendants have
adequately stated the relevance of the information at issue. (See Doc. 52, at 19.)
Plaintiff’s objections are overruled and Defendants’ motion is GRANTED in
regard to Request No. 4.
14
5.
Request Nos. 6 and 7.
Request for Production No. 6 asks for “[a]ll organizational charts for
Everlast since January 1, 2009.” (Doc. 53-4, at 4.) Request No. 7 seeks these
charts for IBML. (Id.) Plaintiff objects as to “vagueness, overbreadth, burden,
relevance, and as not reasonably calculated to lead to the discovery of admissible
evidence.” (Id.) Plaintiff’s objections are summarily overruled as conclusory,
boilerplate objections. Defendants’ motion is GRANTED in regard to Requests
Nos. 6 and 7.
6.
Request No. 8.
This request seeks internal correspondence and documents related to
Defendant Ringside regarding various enumerated categories. (See Doc. 53-4, at
4-5.) With no substantive discussion of the bases for the objections, Plaintiff
objects as to “vagueness, overbreadth, burden, relevance, and as not reasonably
calculated to lead to the discovery of admissible evidence.” (Id., at 5.) Plaintiff’s
objections are summarily overruled as conclusory, boilerplate objections. The
Court finds the information requested to be sufficiently specific and clearly within
the broad definition of discovery relevance. Defendants’ motion is GRANTED in
regard to Request No. 8.
7.
Requests Nos. 9-16.
15
Request No. 9 asks for “[a]ny and all e-mails, letters, correspondence
between Everlast (including its agents and attorneys) and Vince O’Flaherty.”
Request No. 10 seeks “[a]ll and all e-mails, letters, correspondence between
Everlast (including its agents and attorneys) and Scott Ast prior to the point at
which Everlast engaged Ast as counsel. Request No. 11 seeks “[a]ll
correspondence, analyses, valuations, e-mails, or other documents related to any
proposal made by Everlast to Vince O’Flarety as a representative of the unsecured
creditors committee.” Request No. 12 asks for “[a]ll phone records (both land line
and cell phone) of Neil Morton, any Everlast Employee, or Everlast agent that
indicate a phone call with any of the following: Vincent F. O’Flaherty, Brian
Madden and/or Tyler Hudson of Wagstaff & Cartmell, LLP, or Joe Taylor.
Request No. 13 seeks “[a]ll phone records (both land line and cell phone) of Neil
Morton, any Everlast Employee, or Everlast agent showing a telephone call to any
(913) or (816) area code since September 1, 2010. (Any calls to local counsel can
be redacted.)” Request No. 14 asks for “[a]ll communications of any sort, written,
verbal, and any notes taken contemporaneous to any conversation between Neil
Morton or any Everlast employee or agent, on the one hand, and (a) Joe Taylor, (b)
Robert Lynn (ANB Bank), or (c) John Brown, on the other.” Request No. 15 asks
for “[a]ny and all documents, including emails, that have Joe Taylor’s name in
16
them or are directed to, received from, or otherwise pertain to Joe Taylor.”
Request No. 16 seeks “[a]ny and all communications related to Vince O’Flarety’s
appointment as Unsecured Creditors’s Committee counsel.” (See Doc. 53-4, at 67.)
In response to each of these discovery requests, Plaintiff raises the exact
same boilerplate objections as to “vagueness, overbreadth, burden, relevance, and
as not reasonably calculated to lead to the discovery of admissible evidence.” (Id.)
The Court finds Plaintiff’s objections to be conclusory and summarily overrules
them.
In its responsive brief, Plaintiff objects for the first time that Requests Nos.
9, 11, 12, and 16 “are directed at the Ringside bankruptcy, not this trademark
infringement action.” (Doc. 58, at 8.) Plaintiff did not, however, raise this
objection in its underlying discovery responses. As such, the objection is deemed
waived. Paolucci v. Render Kamas Law Firm, No. 12-1253-MLB-KGG, 2013
WL 3189082, *1 (D. Kan. June 21, 2013). Defendants’ motion is GRANTED in
regard to Requests Nos. 9-16.
8.
Request No. 18.
Request for Production No. 18 seeks “[a]ny written analysis, notes,
memoranda on the actual damages incurred by Everlast as a result of any of the
17
causes of action.” (Doc. 53-4, at 8.) Plaintiff objects “to the extent it seeks
documents covered by any privilege,” but states that “upon information and belief,
no non-privileged documents presently exist.”
Defendants argue that “this is not even remotely credible” because Plaintiff
“cannot come into court claiming millions of dollars of damages without having
performed some analysis as to the revenue it purportedly lost . . . .” (Doc. 52, at
27.) The Court agrees that it is unlikely that Plaintiff has brought this lawsuit
without conducting some type of damage analysis. It is, however, possible that any
and all such documents have been done by or at the direction of counsel in
anticipation of litigation. As such, Plaintiff is ordered to provide a privilege log
encompassing any and all responsive documents being withheld on a claim of
privilege. Plaintiff is 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. Plaintiff is further ordered to produce any responsive, nonprivileged documents.
9.
Request No. 19.
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This document request asks for Plaintiff’s “monthly financial statements for
2011, 2012, and 2013.” (Doc. 53-4, at 8.) With no substantive explanation,
Plaintiff objects as to “vagueness, overbreadth, burden, relevance, and as not
reasonably calculated to lead to the discovery of admissible evidence.” (Id.) The
Court again finds Plaintiff’s boilerplate objections to be conclusory and summarily
overrules them. Defendants’ motion is GRANTED in regard to Request No. 19.
10.
Interrogatory No. 4.
Interrogatory No. 4 asks Plaintiff to “[l]ist the officers and directors of
plaintiff since January 1, 2008.” (Doc. 53-3, at 4.) Plaintiff objects as to
“relevance, and as not reasonably calculated to lead to the discovery of admissible
evidence.” (Id.) Defendants argue they have the “right to know who may have
knowledge and facts pertaining to this matter so that they may fashion appropriate
discovery and obtain deposition testimony from knowledgeable persons.” (Doc.
52, at 28.) Defendants have established the relevance of the interrogatory.
Plaintiff’s unsupported, boilerplate objections are overruled and Defendants’
motion is GRANTED in regard to Interrogatory No. 4.
11.
Interrogatory No. 6.
This discovery request asks Plaintiff to “[s]pecify all agreements between
plaintiff and International Brand Management Limited (‘IBML’) pursuant to which
19
IBML employees and/or agents have acted as an agent or otherwise on behalf of
plaintiff.” (Doc. 53-3, at 4.) Plaintiff objects as to “vagueness, overbreadth,
burden, relevance, and as not reasonably calculated to lead to the discovery of
admissible evidence.” (Id.) The Court finds this interrogatory to be facially
relevant and sufficiently specific. Further, Plaintiff has made no attempt to
establish how responding to this interrogatory would be overly burdensome.
Plaintiff’s objections are overruled and Defendants’ Motion is GRANTED in
regard to Interrogatory No. 6.
12.
Interrogatory No. 7.
Interrogatory No. 7 seeks “the consideration provided to Ringside to support
removing from the Boxing Products License Agreement Ringside’s right to cancel
without cause.” (Doc. 53-3, at 4.) Plaintiff objects as to “vagueness, relevance,
and as not reasonably calculated to lead to the discovery of admissible evidence.”
(Id.) Defendants have adequately established the relevance of the request. (See
Doc. 52, at 29-30). Plaintiff has made no attempt to establish vagueness or
irrelevance of the interrogatory. Plaintiff’s unsupported, boilerplate objections are
overruled and Defendants’ Motion is GRANTED in regard to Interrogatory No.
7.
13.
Interrogatory No. 8.
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This interrogatory asks Plaintiff to “[l]ist all of the agreements that have
been in effect between plaintiff and any defendant.” (Doc. 53-3, at 4.) Plaintiff
responded that it
was a party to agreements between plaintiff and
Ringside, Inc., which is a defendant in name only in this
matter, as all matters against it are currently stayed by
virtue of its bankruptcy proceeding. Said agreements
have been produced by plaintiff as Bates Nos. E-0156
through 0243. Any further response must await
production of discovery by the defendants herein.
(Id.) Defendants argue that Plaintiff “cannot condition its providing responsive
documents upon future discovery responses by defendants” and that Plaintiff
“should be compelled to produce the balance of all such contracts.” (Id.) The
Court agrees that this is not a valid reason to withhold a discovery response. To
the extent Plaintiff was a party to any such agreements, it is required to produce
any documents in its possession, custody, or control. Defendants’ Motion is
GRANTED in regard to Interrogatory No. 8.
14.
Interrogatory No. 9.
Interrogatory No. 9 instructs Plaintiff to “[l]ist all non-attorney-client
privileged communications, including email, telephone, text messaging, or
otherwise, between any person acting on Everlast’s behalf and Joe Taylor.” (Doc.
53-3, at 4.) Without attempting to substantiate its position, Plaintiff objects as to
21
“vagueness, overbreadth, burden, relevance, and as not reasonably calculated to
lead to the discovery of admissible evidence.” (Id.) Defendants have established
the relevance of the requested information. Plaintiff has failed to address the issues
of vagueness, overbreadth, and burdensomeness. Plaintiff’s unsupported,
boilerplate objections are overruled and Defendants’ Motion is GRANTED in
regard to Interrogatory No. 9.
15.
Interrogatory No. 10.
This discovery request asks Plaintiff to “[d]escribe in detail the bases for any
denial of any of the Requests for Admission included with this set of written
discovery.” (Doc. 53-3, at 4.) Plaintiff’s discovery response referred Defendants
to the actual document to which Request for Admission No. 1 makes reference.”
(Id.) Defendants argue that this response is “evasive.” (Doc. 52, at 31.) The Court
agrees. Defendants have asked for a detailed description of the bases for any such
denials. Plaintiff is instructed to do so. Defendants’ Motion is GRANTED in
regard to Interrogatory No. 10.
F.
Sanctions.
Defendants’ motion also seeks a variety of sanctions against Plaintiff
including attorneys’s fees. (Doc. 52, at 33-34.) An award of sanctions in a
discovery dispute is governed by Fed.R.Civ.P. 37, which provides in relevant part
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“that a court may impose sanctions against a party who fails to serve answers or
objections” to discovery requests. Torres v. Bodycote Intern, Inc., No. 13-1245EFM-KGG, 2014 WL 559070, *1-2 (D. Kan. Feb. 13, 2014). Rule 37(a)(5) states
that if a motion to compel is granted, “the court must . . . 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.” Fed.R.Civ.P. 37(a)(5) (emphasis added).
See also Kear v. Kohl’s Dept. Stores, Inc., No. 12-1235-JAR-KGG, 2013 W
3088922, *6 (D.Kan. June 18, 2013). However, “the court must not order
payment” when the nonmovant's conduct was”substantially justified . . . .”
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 Plaintiff’s position in
regard to the vast majority of these discovery disputes was unreasonable and,
therefore, not substantially justified. Most of Plaintiff’s discovery responses
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consisted entirely of unsupported boilerplate objections which were summarily
overruled by the Court. Plaintiff has failed to provide the Court with substantial
justification for its actions and, more importantly, inaction in regard to the
discovery at issue. Plaintiff provided no justification for failing to respond to
discovery in a timely fashion or failing to request a timely extension. The Court
will, therefore, require Defendants to submit, within fourteen (14) days of this
Order, a verified accounting of their reasonable attorneys fees and expenses
associated with the filing of the underlying motion to compel.
IT IS THEREFORE ORDERED that Defendants’ Motion to Enforce
Discovery and for Sanctions (Doc. 51) is GRANTED in part and DENIED in
part as more fully set forth above. Plaintiff shall provide supplemental discovery
responses consistent with the terms of this Order, without objection, within thirty
(30) days of the date of this Order.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 23rd day of June, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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