Ezfauxdecor, LLC et al v. Smith et al

Filing 138

MEMORANDUM AND ORDER granting in part and denying in part 126 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/23/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EZFAUXDECOR, LLC, et al.,

)
)
Plaintiffs, )
)
)
)
v.
)
)
ALISON SMITH, et al.,
)
)
Defendants. )
______________________________ )

Case No. 15-9140-CM-KGG

MEMORANDUM & ORDER
Currently pending before the Court is Plaintiff’s Motion to Compel (Doc.
126). For the reasons set forth below, Plaintiff’s motion is GRANTED in part
and DENIED in part.
BACKGROUND
The facts of this case were recently summarized in the undersigned
Magistrate Judge’s Memorandum & Order on the parties’ competing motions
relating to the ESI protocol. (See Doc. 135, at 1-3.) That summary is incorporated
herein by reference.
The present motion relates to the responses and objections of Defendants
Appliance Art Incorporated and Instant One Media, Inc. (“Defendants”) to

Plaintiffs’ First Requests for Production (Doc. 126-3) and First Interrogatories
(Doc. 126-4). Plaintiffs generally contend that Defendants responses were evasive,
incomplete, and/or asserted improper objections. (See Doc. 126.)
ANALYSIS
A.

Standards for Discovery.
Fed.R.Civ.P. 26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount in
controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.

As such, the requested information must be both nonprivileged and relevant to be
discoverable.
B.

Plaintiffs’ Motion to Compel (Doc. 126).
1.

Conditional and “evasive” responses.

Defendants stated they would produce documents responsive to the majority
of Plaintiffs’ Requests “following a reasonable search” or “to the extent they
understand the request” or “to the extent the documents exist” or “to the extent the
documents are in Defendant’s possession, custody, or control.” (Doc. 126, at 4;
2

Requests 1-4, 6, 7, 10-13, 15, 16, 18, 22, 25, 29-33.) Plaintiffs contend these
responses violate Fed.R.Civ.P. 26(g)(1), which requires certification of the
response after a reasonable inquiry and Fed.R.Civ.P. 34(b)(2)(C) (requiring a
statement as to whether any responsive materials are withheld pursuant to an
objection).
This Court has specifically indicated its disapproval of “conditional”
discovery responses. See Kemp v. Hudgins, No. 12-2739-JAR-KGG, 2015 WL
866905, at *5 (D. Kan. March 2, 2015) (holding that responses conditioned with
“to the extent” are improper). Defendants are instructed to submit amended
discovery responses removing all conditions such as “to the extent such documents
exist and are in Defendants’ possession, custody, or control.” (See e.g., Doc. 1263, as to Requests Nos. 1-4, 6-7, 11-12, 16, 18, 22, 25, and 33.) Either the
documents exist and are in Defendants’ possession or they do not/are not.1

The

Court also finds the qualifier “to the extent Defendants understand the request” to
be improper and extraneous. Defendants are instructed to strike this qualifier from
their responses.
Defendants are hereby instructed to conduct a reasonable search in

1

Obviously, a response stating that requested documents do not exist is proper.
But a conditional response producing documents “to the extent they exist” is nonsense.
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accordance with Fed.R.Civ.P. 26(g)(1) and respond accordingly. Continued
responses that documents “will be produced” (see e.g. Doc. 126-3 regarding
Request No. 4) are, at this stage, improper; responsive documents are to be
produced or arrangements are to be made for them to be inspected forthwith.
Defendants are also reminded that their responses are to be in conformity with
Fed.R.Civ.P. 34(b)(2)(C) and include a statement as to whether any responsive
materials are withheld pursuant to an objection.
2.

Boilerplate objections.

Defendants frequently object that certain of Plaintiff’s discovery requests are
vague, ambiguous, overly broad, unduly burdensome, irrelevant, or
disproportionate to the needs of the case. Typically, Defendants raise these
objections without providing a substantive explanation or reason as to why said
requests are objectionable.
Unless a discovery request is facially objectionable, the party resisting
discovery has the burden 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
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the burden of explaining how “each discovery request is irrelevant, not reasonably
calculated to the discovery of admissible evidence, or burdensome”).
A party opposing a discovery request cannot make
conclusory allegations that a request is irrelevant,
immaterial, unduly burdensome, or overly broad.
Instead, the party resisting discovery must show
specifically how each discovery request is irrelevant,
immaterial, unduly burdensome or overly broad.
Gheesling v. Chater, 162 F.R.D. 649, 650 (D. Kan. 1995) (citation omitted).
Merely stating that a particular word or phrase is vague or ambiguous does not
suffice unless the verbiage is facially objectionable.2 The same is true for an
assertion that a request seeks irrelevant information or is not proportional to the
needs of the case – Defendants must explain how or why the requested information
is irrelevant or disproportional unless the request is facially inappropriate. Given
these general findings, the Court will now address the specific discovery requests
at issue.
2.

Specific Requests for Production.
a.

Requests Nos. 1-4 and 6.

Requests 1-6 sought materials that Plaintiffs contend are relevant to their
claims that Defendants used false statements to market their products “saying that

2

This will be discussed more thoroughly, infra, as to the specific discovery
requests containing the particular words to which Defendants object.
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their products were endorsed by or featured on the Rachel Ray Show, HGTV,
QVC, the DIY Network, Restaurant Impossible, and the Today Show.” (Doc. 126,
at 8; see also Doc. 126-3, at 2-6.) Defendants’ objection that the use of the terms
“endorsement” and/or “featuring” is vague and ambiguous as to Requests 1, 3 and
6 is overruled. The terms are not facially vague or ambiguous and Defendants
have failed to explain how the terms could be misconstrued. These boilerplate
objections are overruled. See Seed Research Equip. Sol'ns, LLC v. Gary W.
Clem, Inc., No. 09-1282-EFM-KGG, 2011 WL 855804, at *2 (D. Kan. March 9,
2011) (internal citations omitted).
Plaintiffs also contend that the evasive nature of Defendants’ responses to
these requests made it impossible for Plaintiffs to determine of Defendants had
produced responsive documents. Defendants are instructed to revise their
responses to Requests Nos. 1-4 and 6 given the Court’s analysis of Defendants’
conditional objections, supra, as well as removing the boilerplate objections.
b.

Request No. 5.

This Request sought all communications and documents between
Defendants and the National Apartment Association “that concerned its approval
for use of Your [sic] peel and stick stainless steel.” (Doc. 126-3, at 5.) Defendants
object that the request seeks information that is irrelevant or not proportional to the
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needs of the case. These objections are conclusory as Defendants have provided
no explanation as to how the Request is irrelevant or disproportionate. Given the
causes of action and allegations raised in Plaintiffs’ Amended Complaint (see Doc.
96), the Court finds the requested information to fall within the scope of discovery
in this case.
In their responsive brief, Defendants contend that Plaintiffs have been
advised that no responsive documents exist. (Doc. 134, at 14.) As Plaintiffs argue,
however, Defendants have failed to “acknowledge the difference between a
supplemental discovery response and a statement by counsel in a letter or email.”
(Doc. 136, at 2.) Defendants are instructed to provide a supplemental response to
this Request that reflects this, while striking their unsupported objections.
c.

Requests 7, 13, and 16.

Requests 7, 13, and 16 sought photographs Defendants provided to Amazon
for use on seller’s pages, photos provided to third-party retailers, and photos used
on Defendants’ own websites and social media channels from June 25, 2013 to the
present. (Doc. 126-3, at 6, 9-12.) Defendants again include the conditional “to the
extent” language in response to these Requests. Defendants are instructed that
such language must be stricken from their supplemental responses.
The Court also overrules Defendants’ conclusory objections that the Request
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are irrelevant, disproportionate, vague, and/or ambiguous. Defendants have not
provided sufficient explanation as to how the Requests are objectionable. These
objections are to be stricken from Defendants’ supplemental responses.
d.

Requests 8-10.

Requests 8, 9, and 10 sought copies of the Amazon seller’s pages used by
Defendants to market their products from June 25, 2013 to the present. Defendants
object that these Requests are overly broad, unduly burdensome, and
disproportionate to the needs of the case in seeking “all changes” to such pages and
“all communications with Amazon regarding” Defendants’ seller’s pages. (Doc.
126-3, at 7-8.) This Court has already held that the websites and webpages at issue
“go to the very heart of this case.” (Doc. 135, at 7.) Further, a request for “all
changes,” “all communications,” “all documents,” etc., while broadly worded, is
not facially overbroad if the phrase qualifies a particular category or subject of
information – in this case, Amazon seller’s pages. Thus, the Requests are not
facially overbroad, unduly burdensome, or disproportionate to the needs of the
case. These objections are overruled.
Plaintiffs argue that Defendants’ offer to produce a list of ASINs (Amazon
Standard Identification Numbers) for each seller’s page is both “non-responsive
and deliberately evasive.” (Doc. 126, at 10.) In their responsive brief, Defendants
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contend that
Plaintiffs’ use of the term ‘Seller’s Pages’ is inconsistent
with the use of that term by Amazon.com. A Seller's
Page is not associated with an individual product ASIN;
rather, as the name implies, a Seller’s Page is associated
with a particular Amazon seller. What Plaintiffs appear
to be seeking are copies of Amazon listing pages for each
ASIN assigned to Defendants’ products. Following the
March 15 call, URLs of those listing pages were
provided to Plaintiffs, allowing them to access each page
through a simple click of a mouse.
(Doc. 134, at 16.) The Court agrees with Plaintiffs that this is not what they have
requested. Defendants are ordered to produce all responsive Amazon seller’s
pages as well as the requested associated communications. Defendants are
instructed that their supplemental response must be in accordance with the Court’s
recent ESI Protocol Order. (Doc. 135.)
e.

Requests 11, 12, 15.d, and 18.

These Requests sought Amazon monthly sales reports and reports as to sales
through third-party retailers or Defendants’ websites. In response to Requests 11
and 12, Defendants stated that
[f]ollowing a reasonable search, and subject to the entry
of an appropriate protective order of confidentiality,
Defendants will produce responsive monthly sales
reports associated with its Amazon product detail pages
listed in response to Request No. 8, above, to the extent
such documents exist and are in Defendants’ possession,
custody, or control.
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(Doc. 126-3, at 9.) Similar responses were given in response to Requests 15.d and
18. (Id., at 11, 13.)
According to Plaintiffs, discovery responses were due by January 9, 2017,
but Defendants withheld their responses subject to the entry of a protective order.
Although the protective order was entered in March 2017 (see Docs. 104, 105),
Plaintiffs contend that no responsive documents were received as of the filing of
the present motion. Defendants argue that it is “impossible” for them
to generate monthly sales reports via the Amazon website
that include only the sales figures for those two products.
Thus, the native-format Excel spreadsheets containing
monthly sales data for Defendants’ peel-and-stick granite
and peel-and-stick stainless steel products are the most
responsive documents available to provide Plaintiffs with
this relevant damages information.
(Doc. 134, at 17.)
The Court instructs Defendants to respond to Requests 11, 12, 15.d, and 18
without the offending “to the extent” qualifications discussed supra. The Court
also overrules Defendants’ boilerplate objections that Request No. 15 is overly
broad, unduly burdensome, and disproportionate to the needs of the case. See Seed
Research Equip. Sol'ns, 2011 WL 855804, at *2 (internal citations omitted).
Defendants’ responses are to be supplemented accordingly. Defendants are
instructed to verify that their production of this information in Excel spreadsheet
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format is consistent with the Court’s recent ESI Protocol Order. (Doc. 135.)
f.

Request No. 17.

Request 17 sought the posts concerning the products made by Defendants on
the social media sales channels of Defendant Appliance Art Inc. from June 25,
2013 to the present. Defendants object that the information “is at least equally
available to Plaintiffs as to Defendants.” (Doc. 126-3, at 12.) Plaintiffs argue that
this is “untrue because Defendants took down the offending posts.” (Id.) Plaintiffs
clearly would not have access to social media posts that may have been deleted.
Defendants objection is overruled and they are instructed to provide a
supplemental response to this Request. Defendants’ assertion that they have
“advised” Plaintiffs that “no responsive documents have been withheld” (Doc. 134,
at 18) does not suffice as a supplemental discovery response.
g.

Requests No. 19-21.

Request No. 19 sought the general ledger detail that is the subject of the
pending ESI protocol motions. (Doc. 126-3, at 13.) Request No. 20 sought
financial statements for the relevant time period (balance sheets, income
statements, trial balances, statements of cash flow) while Request No. 21 sought
bank statements with images of cancelled checks and deposit records. (Id., at 1314.) Defendants object that the Requests are overly broad, unduly burdensome,
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and seeks duplicative information. (Id.) Defendants further argue that the
information is irrelevant and disproportional to the needs of the case. (Id.)
The Court finds that the information requested is relevant and discoverable.
As such, the Court overrules Defendants’ conclusory objections that the Request
are overly broad, unduly burdensome, duplicative, irrelevant, and disproportionate
to the needs of the case.
The Court’s most-recent Order relating to the ESI protocol resolves any
issues regarding the format of what should be produced, holding that production of
the documents in QuickBooks format is improper because it would include the
production of a significant amount of information that is thoroughly irrelevant to
this case. (See generally Doc. 135, at 5.) Defendants are instructed to supplement
their responses to these Requests, removing the stated objections, and producing
this financial information in native-format Excel spreadsheets or a comparable
form of electronic report.
h.

Request No. 22.

This Request sought Defendants’ communications with Amazon.com
regarding Plaintiffs or Plaintiffs’ product(s). (Doc. 126-3, at 14.) Defendants
objected that the information sought is irrelevant and disproportional to the needs
of the case. (Id.) Defendants also included their conditional response to this
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request, stating that “to the extent such documents exist and are in Defendants’
possession, custody, or control,” the same would be produced “[f]ollowing a
reasonable search” and subject to a protective order.
The Court instructs Defendants to respond to Request No. 22 without the
offending “to the extent” qualification discussed supra. The Court also overrules
Defendants’ unsupported, boilerplate objections that this Request is irrelevant and
disproportionate to the needs of the case. See Seed Research Equip. Sol'ns, 2011
WL 855804, at *2 (internal citations omitted). Defendants are instructed to
provide a supplemental discovery response, without objection, identifying any
responsive documents by Bates number.
I.

Requests Nos. 23-24.

Requests 23-24 sought copies of the websites and videos used by Defendants
to market product at issue. (Doc. 126-3, at 15.) Defendants object that the request
seeks information that is irrelevant or disproportionate to the needs of the case.
They also object that the Request would require them “to create one or more
documents.” (Id., at 15-16.) The Court overrules Defendants’ unsupported,
boilerplate objections. See Seed Research Equip. Sol'ns, 2011 WL 855804, at *2
(internal citations omitted).
As the undersigned Magistrate Judge stated in the most-recent ESI protocol
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Order, “working, functional copies of the websites/webpages at issue go to the very
heart of this case. It is appropriate for Plaintiff to be able to review the websites as
a consumer would have done so.” (Doc. 135, at 7.) Defendants are again
instructed to provide Plaintiffs with fully functional copies of the websites or
webpages at issue, including any videos that were posted, linked, embedded or
loaded therein.
j.

Request No. 25.

This Request asks for materials relevant to Defendants’ claim that the assets
of Defendant Appliance Art were transferred to Defendant Instant One Media.
Defendants objected that the information sought is irrelevant, disproportional to the
needs of the case, overly broad and unduly burdensome. (Doc. 126-3, at 16.)
Defendants also included their conditional response to this request, stating that “to
the extent such documents exist and are in Defendants' possession, custody, or
control,” the same would be produced “[f]ollowing a reasonable search” and
subject to a protective order. Plaintiffs complain that they “cannot reasonably
determine from Defendants’ response if Defendants have withheld other
documents pursuant to their objection.” (Doc. 126, at 16.)
The Court instructs Defendants to strike the offending “to the extent”
qualification, discussed supra, from their response to this Request. The Court also
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overrules Defendants’ unsupported, boilerplate objections that this Request is
irrelevant, disproportionate to the needs of the case, overly broad, and unduly
burdensome. See Seed Research Equip. Sol'ns, 2011 WL 855804, at *2 (internal
citations omitted). Defendants are instructed to provide a supplemental response,
without objection, identifying any responsive documents by Bates number.
k.

Request No. 26.

Request 26 seeks information regarding sales of Defendants’ products from
June 2013 - December 2015. Defendants object that the request is overly broad,
unduly burdensome, seeks duplicative information, is irrelevant, and/or
disproportional to the needs of the case. (Doc. 126-3, at 16.) In their responsive
brief, Defendants assert that “the customer information Plaintiffs seek has already
been produced in native-format Excel spreadsheets. Thus, a request for each and
every invoice, order record, shipping record, and bill of lading is wildly out of
proportion to the needs of this case . . . .” (Doc. 134, at 22.) Plaintiffs do not
contest this assertion in their reply brief. (See generally Doc. 136.) As such, the
Court sustains Defendants’ objections to Request No. 26.
l.

Request 28.

Request No. 28 asks for documents showing damages Defendants are
claiming to have sustained relating to their counterclaims. Defendants object on
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the basis of the attorney-client privilege and/or work-product doctrine. (Doc. 1263, at 17.) In the event Defendants have failed to do so, they are instructed to
provide a compliant privilege log identifying any and all documents withheld on
these bases. Defendants also object that the Request “seeks information that is
properly the subject of expert testimony.” (Id.) This is improper. “The fact that a
[party] may later supplement [its discovery] response with an expert report does
not permit [it] to initially refuse to respond with whatever discoverable information
[it] presently holds.” Bradley v. Val-Mejias, M.D., 2001 WL 1249339 at *2 (D.
Kan. Oct. 9, 2001).
In their responsive brief, Defendants contend that their “burden on their
Lanham Act counterclaim is to prove Plaintiff’s sales during the relevant period.”
(Doc. 134, at 22 (emphasis in original).) Defendants continue that “Plaintiffs have
stated that they will supplement their document production to include their sales
figures for the relevant time, and those are the documents Defendants will use to
prove their damages.” (Id.) This could – and should – have been stated in
Defendants’ initial discovery response. Defendants are instructed to provide a
supplemental response forthwith.
m.

Request No. 29.

Finally, Request No. 29 seeks documents containing “any commercial
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disparagement by [Plaintiff] Amber Shank” of Defendants’ “goods services and
business . . . .” (Doc. 126-3, at 17.) Defendants object that the request calls for a
legal conclusion, but states that responsive documents will be provided
“[f]ollowing a reasonable search . . . .” (Id.)
Simply stated, Defendants’ response is improper. The fact that a discovery
request “calls for a legal conclusion” is not an appropriate basis to refuse to
answer.3 Further, Defendants were under the obligation to produce responsive
documents, not inform Plaintiffs that responsive documents would be produced
“following a reasonable search.”
In their responsive brief, Defendants state that they have “confirmed that no
documents are being withheld pursuant to Defendants’ objections.” (Doc. 134, at
23.) A statement to Plaintiffs or assertion in a brief does not, however, equate to a
supplemental discovery response. Defendants are instructed to provide a
supplemental response forthwith, without objection.
3.

Interrogatories.

3

The Federal Rules specifically state that “[a]n interrogatory is not objectionable
merely because it asks for an opinion or contention that relates to fact or the application
of law to fact . . . .” Fed.R.Civ.P. 33(a)(2). While no such specific language exists in
Fed.R.Civ.P. 34 regarding document requests, the Court finds that this rule should apply
to document requests as well as interrogatories. Cf. Akers v. Shaw Environmental, Inc.,
2011 WL 867524 (W.D. Louisiana, March 14, 2011) (overruling a “calls for legal
conclusion” objection as to document requests relating to contention interrogatories).
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Plaintiffs’ motion also concerns Defendants’ objections to Interrogatories
Nos. 3-6, which Plaintiffs contend are “without merit.” (Doc. 126, at 17.) Each is
addressed in turn.
a.

Interrogatory No. 3.

Interrogatory No. 3 asked Defendants to identify “each segment or episode
of the Rachael Ray Show, HGTV, QVC, the Today Show, the DIY Network, and
Restaurant Impossible that featured Your peel and stick granite or peel or stick
stainless steel.” (Doc. 126-4, at 5.) Defendants contend that the Interrogatory is
improper because they cannot “identify ‘episodes’ or ‘segments’ of television
networks such as HGTV, QVC, and the DIY Network [because] . . . there is no
such thing as an ‘episode’ or segment’ of a network.” (Doc. 134, at 23.) The
Court is confident, however, that Defendants understood that Plaintiffs sought the
identification of any segments or episodes of television programs that appeared on
those networks.
Defendants identified two episodes it believed to have aired and then said
they would continue to gather information and supplement the response. (Doc.
126-4, at 5-6.) Plaintiffs argue that Defendants’ evasive response violates Rule
26(g)(1), requiring a reasonable inquiry before responding.
Defendants’ literally false claims of being endorsed by or
featured on the Rachael Ray Show, HGTV, QVC, the
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Today Show, and Restaurant Impossible were all used in
Defendants’ advertising prior to June 25, 2013 when this
case was filed and for a period of time after the
Complaint was filed. It is hard to imagine that
Defendants would not have knowledge by now as to
which programs and segments supposedly featured their
products.
(Doc. 126, at 18.)
Defendants objections are overruled. Defendants are instructed to provide
Plaintiffs with the specific information requested regarding each segment or
episode of the listed television shows that featured the product(s) at issue.
b.

Interrogatory No. 4.

This Interrogatory asked Defendants to identify the costs and deductions
they claim from gross sales. (Doc. 126-4, at 6.) Defendants object that this answer
could only be made through an expert witness. (Id.) Relying on Bradley v.
Val-Mejias, M.D., 2001 WL 1249339, Plaintiffs argue that this is an improper
objection. “It is not sufficient for [the party] to respond by stating that his expert
will provide the requested damages information in accordance with the expert
disclosure deadlines.” Id., at *2. As stated in the context of Request for
Production No. 28, supra, “[t]he fact that a [party] may later supplement [its]
interrogatory response with an expert report does not permit him to initially refuse
to respond with whatever discoverable information he presently holds.” Id.
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Defendants’ objections to Interrogatory No. 4 are overruled. Defendants are
instructed to provide any responsive information they currently possess. Their
response shall be supplemented to indicate that they have produced certain
information in a native-format Excel spreadsheet. (See Doc. 134, at 24.) The
response to this Interrogatory also may be supplemented in accordance with the
Court’s deadlines regarding expert discovery as necessary.
c.

Interrogatories Nos. 5 and 6.

Interrogatories Nos. 5 and 6 ask Defendants to identify each customer who
purchased their peel-and-stick granite or stainless steel from June 25, 2013, to the
present. Defendants refused to answer, objecting that the information sought was
unduly burdensome, overly broad, irrelevant, and not proportional to the needs of
the case. (Doc. 126-4, at 6-7.) Plaintiffs argue that this information is relevant and
discoverable because they must prove materiality, confusion, and damage. “The
pool of persons who were deceived by Defendants’ false statements would
naturally be their customers who purchased Defendants’ products while the false
statements were being used.” (Doc. 126, at 20.)
Defendants state that “[l]ists containing the requested customer information
have been produced in native-format Excel spreadsheets and identified for
Plaintiffs, as permitted by Fed. R. Civ. P. 33(d).” (Doc. 134, at 24.) Plaintiffs do
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not controvert the validity of this production in their reply brief. (See generally
Doc. 136.) Defendants are, however, instructed to supplement their response to
indicate the responsive information that has been provided.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel (Doc.
126) is GRANTED in part and DENIED in part as set forth more fully above.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 23rd day of June, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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