Energy Intelligence Group, Inc. et al v. CHS McPherson Refinery, Inc.

Filing 95

MEMORANDUM AND ORDER denying 56 Motion to Compel. Signed by Magistrate Judge Gerald L. Rushfelt on 6/26/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ENERGY INTELLIGENCE GROUP, INC. and
ENERGY INTELLIGENCE GROUP (UK)
LIMITED,
Plaintiffs,

Case No. 16-CV-1015-EFM-GLR

v.
CHS MCPHERSON REFINERY, INC. (F/K/A
NATIONAL COOPERATIVE REFINERY
ASSOCIATION),
Defendant.

MEMORANDUM AND ORDER
Plaintiffs bring this action against Defendant for alleged copyright infringement of
Plaintiffs’ publication Oil Daily from at least June 2004 through the present. This matter comes
before the Court on Plaintiffs’ Motion to Compel Supplemental Answers to Discovery Requests
(ECF 56). Plaintiffs move to compel Defendant to supplement its Answers to Plaintiffs’ First Set
of Interrogatories. The motion is fully briefed and the Court is prepared to rule. For the reasons
explained below, the Court denies Plaintiffs’ motion to compel.
I.

Procedural History
Plaintiffs served their First Requests for the Production of Documents and Things and

First Set of Interrogatories on Defendant on March 24, 2016. In their Interrogatories Plaintiffs
asked for information about the identities of people who had received or distributed Plaintiffs’
publications and the identities of Defendant’s employees who copied or saved Plaintiffs’
publications, as well as identifying information for the particular publications that Defendant
received, distributed, and/or copied. Plaintiffs identified June 2004 through the date of the

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discovery requests as the “Applicable Period” for production of documents and Answers to the
Interrogatories.
Defendant responded to both of Plaintiffs’ discovery requests on May 2, 2016.1 In
responding to the Interrogatories, Defendant raised several objections. Of relevance to this
matter, Defendant made the following objection in responding to the Interrogatories: “Plaintiffs
make no mention of a reasonable time period in which relevant information may be found and
[Defendant] objects to Plaintiffs’ definition of the ‘applicable period,’ which extends over twelve
years.”2 In accordance with this objection, Defendant answered the Interrogatories by providing
information relevant only to the years 2013 through 2016. Defendant did not make a similar
objection regarding the time period for production of documents. However, when Defendant
produced its first batch of documents responsive to Plaintiffs’ discovery requests on August 22,
2016, it provided no documents from earlier than September 2012.3
On September 28, 2016, Plaintiffs wrote to Defendant regarding its document production
and Answers to Interrogatories. Plaintiffs acknowledged that Defendant had not produced
documents from earlier than 2012, and that Defendant had answered the Interrogatories with
information dating back only to January 2013.4 Plaintiffs requested that Defendant supplement
its document production and Answers to the Interrogatories “for the entire Applicable Period for
each response.”5
Defendant sent a letter in response on October 26, 2016, in which it summarized the
parties’ communications during the previous month regarding discovery issues. Defendant
1

ECF 64-1.

2

Id. at 3–5.

3

ECF 64-2.

4

Id.

5

Id.

2

reiterated its objection to the time period for answering the Interrogatories and explained why it
produced documents dating back only to 2012.6
On November 4, 2016, Plaintiffs sent a letter to this Court a letter, summarizing the
discovery dispute regarding the “Applicable Period” and the attempts of the parties to meet and
confer about this issue.7 Plaintiffs summarized Defendant’s responses to their discovery requests
as follows:
In a letter to [Plaintiffs] dated October 14, 2016, [Defendant] stated that it would
not produce documents responsive to [Plaintiffs’] document requests for the time
period of 2004 through 2012, based on [Defendant’s] statute of limitations
affirmative defense. This was the first time such an objection was raised by
Defendant to Plaintiffs’ discovery requests.8
Plaintiffs did not explicitly refer to their Interrogatories or Defendant’s objections as to the
“Applicable Period,” in the November 4 letter to the Court. On November 9 Plaintiffs filed a
Motion for Extension of Time to File a Motion to Compel related to Defendant’s responses to
Plaintiffs’ requests for production of documents.9 Defendant also sent a letter to the Court on
November 8, 2016, summarizing the dispute about the time period for discovery responses.10
The Court held a discovery conference on December 12, 2016. It entertained argument
by the parties as to the time period issue. It granted Plaintiffs’ motion for extension of time in
part. Specifically, the Court granted Plaintiffs leave to “file motions to compel as to its First and
Second Requests for Production,” but reserved ruling on the timeliness of such motions.11

6

ECF 64-3.

7

ECF 64-4.

8

Id. at 1.

9

ECF 34 at 2. Plaintiffs’ motion did not mention their Interrogatories or Defendant’s Answers thereto.

10

ECF 64-5.

11

ECF 41.

3

After the December 12 discovery conference, the parties continued to confer about the
time period issue. On December 22, 2016, Plaintiffs sent Defendant an e-mail, memorializing
their agreement to split the costs for retrieving documents for the period of 2004–2011.12
Plaintiffs did not mention any communications regarding Defendant’s Answers to their
Interrogatories.13 Also on December 22, Plaintiffs filed a motion for extension of time to file a
motion to compel. Plaintiffs referenced their agreement with Defendant regarding production of
documents and asserted that a motion to compel likely would not be necessary, but in any event
moved for “an extension of time to file a Motion to Compel on Defendant’s responses to
Plaintiffs’ First and Second Requests for the Production of Documents and Things for thirty (30)
days from the proposed production date, namely up to and including March 15, 2017.”14 The
Court granted Plaintiffs’ motion on January 6, 2017.
On February 2, 2017, pursuant to the parties’ agreement, Defendants produced additional
documents from the entire “Applicable Period” identified in Plaintiffs’ document requests.15 On
February 28, Defendant supplemented its Answers to Plaintiffs’ Interrogatories by providing
additional information from 2013 through the date of its supplementation.16 The parties met and
conferred on March 6, 2017, at which time Plaintiff raised its concern that Defendant provided
supplemental information from only 2013 forward. Defendant again raised its objection as to the
applicable time period.

12

ECF 64-6.

13

See id.

14

ECF 44 at 2.

15

ECF 64-7.

16

ECF 56-1.

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II.

Discussion
Plaintiffs move to compel Defendant to fully answer Interrogatory Number One with all

relevant information from the “Applicable Period” and full references to the individual
copyrighted works at issue in this case. Defendant responds that Plaintiffs’ motion is untimely
and that a ruling in favor of Plaintiffs would subject Defendant to unduly burdensome and nonproportional discovery obligations. Before proceeding to Defendant’s arguments as to undue
burden and proportionality, the Court first addresses whether Plaintiffs’ motion is timely.
Pursuant to D. Kan. Rule 37.1(b),
[a]ny motion to compel discovery in compliance with D. Kan. Rules 7.1 and 37.2
must be filed and served within 30 days of the default or service of the response,
answer, or objection that is the subject of the motion, unless the court extends the
time for filing such motion for good cause.17
This provision of the rules also appears in the Scheduling Order in this case, with the
added warning that, “Otherwise, the objection to the default, response, answer, or
objection is waived. See D. Kan. Rule 37.1(b).” (ECF 27 at 9)
This Court has consistently held that the thirty-day period in which to file a motion to
compel is triggered when specific information first leading to a dispute is discovered, and this
period is not tolled while the parties continue to confer on discovery issues.18 As this Court has
previously explained,
the deadline of 30 days is not tolled while the parties are engaged in conferring
efforts to resolve the discovery dispute without court intervention. Instead, the
common practice in this District is for a party to request, prior to its expiration, an
extension of its deadline to file a motion to compel with respect to any discovery
dispute upon which the parties are still conferring. Although courts on occasion

17

D. Kan. Rule 37.1(b).

18

E.g., McCoy v. Miller, No. 12-3050-JAR, 2013 WL 5966139, at *2 (D. Kan. Nov. 8, 2013) (citations
omitted); Cont'l Cas. Co. v. Multiservice Corp., No. 06-2256-CM, 2008 WL 73345, at *4 (D. Kan. Jan. 7, 2008).

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have excused the untimely filing of a motion to compel under certain
circumstance, those decisions do not indicate a common practice of the Court.19
The Court finds that Plaintiffs’ motion is not timely under Rule 37.1(b). Defendant filed
its Answers to the Interrogatories on May 2, 2016. These answers contained the objections to the
“Applicable Period” that are the subject of the instant motion to compel.20 Thus, Plaintiffs were
on notice of Defendant’s objection nearly eleven months before they filed their motion to compel
on March 30, 2017. Although the parties communicated to a very limited extent about the
Interrogatories during that nearly eleven-month time span,21 these meetings and conferences did
not toll the Rule 37.1 clock.22 Plaintiffs’ motion is therefore untimely.
Additionally, the parties’ communications and the Court’s intervention with regard to
Defendant’s document production did not toll the deadline for Plaintiffs to file a motion to
compel as to the Interrogatories. As explained above, the parties communicated extensively
regarding the time period issue in relation to Defendant’s document production, and the Court
twice extended the time for Plaintiff to file a motion to compel concerning document production,
while reserving ruling on the timeliness of such a motion.23 Although the time period issue was
relevant to both the document production and the Interrogatories, the parties’ communications
among themselves and with the Court related only to document production, not Defendant’s
19

Layne Christensen Co. v. Purolite Co., No. 09-2381-JWL-GLR, 2011 WL 124538, at *3 (D. Kan. Jan. 14,
2011) (internal citations omitted).
20

Plaintiffs also refer in passing in their Reply to alleged “gaps” in Defendants’ document production, and
argue that Defendant’s supplemental Interrogatory Answers also lack “information clearly missing from the
Supplemental Production.” ECF 69 at 4. The alleged “gaps” in Defendants’ document production would be
appropriate for a timely motion to compel document production, rather than the present motion to compel
interrogatory answers. Additionally, because this issue was raised for the first time in Plaintiffs’ Reply, the Court
does not consider it. Wooten v. Bd. of Pub. Utilities of Kan. City, Kan., No. 95-2182-GLR, 1997 WL 45275, at *2
(D. Kan. Jan. 30, 1997) (“As a general rule, courts do not consider new arguments and issues presented in a reply
brief, because the party opposing the motion ‘has not had an opportunity to respond.’”) (citation omitted).
21

See ECF 64-2.

22

Layne Christensen Co., 2011 WL 124538, at *3.

23

ECF 41, 45.

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Answers to the Interrogatories. Additionally, the Court’s Orders granting extensions of time
related only to motions to compel document production, not supplemental answers to the
Interrogatories.24 This was for good reason too, as Plaintiffs were not on notice of Defendant’s
concerns about the time period for production until late August 2016, thereby making a motion
to compel as to document production arguably timely after the parties had conferred extensively
about document production beginning in September 2016. By contrast, Plaintiffs were clearly on
notice of Defendant’s time period objection to the Interrogatories by May 2, 2016, and the
parties did not confer about it. Thus, although the Court extended the time for Plaintiffs to file a
motion to compel as to document production, these extensions clearly did not apply to any
motion to compel responses to Interrogatories. Plaintiffs’ motion to compel Defendant to
supplement its Answers to the Interrogatories is therefore untimely, notwithstanding the granting
of leave to file motions to compel document production.
In their Reply Plaintiffs argue that the triggering date for the 30-day deadline set forth in
Rule 37.1(b) is February 28, 2017, the date Defendant supplemented its Answers to the
Interrogatories. To support this argument, Plaintiffs rely on Neonatal Product Group, Inc. v.
Shields.25 In Shields, the producing party served their objections to the requests for production
on August 31.26 On September 24, the producing party produced supplemental documents,
which included service of certain redacted documents.27 The requesting party filed a motion to
compel the producing party to produce the supplemental documents in un-redacted form.28 The
Court held that the triggering date for purposes of the 30-day deadline under Rule 37.1(b) was
24

ECF 41, 45.

25

No. 13-2601-DDC, 2015 WL 7078796 (D. Kan. Nov. 13, 2015).

26

Id. at *2.

27

Id.

28

Id.

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September 24, the date of service of the redacted documents, rather than August 31, the date of
the initial discovery objections.29 The Court explained that September 24 was the triggering date
because “[p]rior to September 24, [the requesting party] could not have predicted that [the
producing party] would serve a redacted copy of the document and that they would be in a
position in which they would need to compel production of an unredacted copy.”30 Plaintiffs
argue that, as in Shields, the triggering date for the instant motion is February 28, 2017, the date
of Defendant’s supplemental Answers to the Interrogatories, rather than the initial Answer and
objection served on May 2, 2016.
The holding in Shields, however, is readily distinguishable from this case. In Shields, the
requesting party was unaware of the subject of its motion (the redacted nature of the
supplemental documents) until the redacted supplemental documents were produced.31 Unlike in
Shields, Plaintiffs here were aware of the subject of their motion to compel and Defendant’s
objection against the time period for answering the Interrogatories, upon Defendant’s service of
its Answer to the Interrogatories on May 2, 2016. Indeed, the Court in Shields distinguished the
analysis in that case from the course of events at issue here:
To be clear, the undersigned distinguishes this scenario from a situation involving
a motion to compel asking the court to overrule certain timely lodged discovery
objections. In that case, the discovering party would have notice of the dispute at
the time the responding party served the objections. Here, however, [the
requesting party’s] motion to compel is timely because they filed it within 30 days
of service of the redacted copy of the term sheet licensing agreement—the
supplemental discovery response that is the subject of the motion to compel.32
By contrast, Plaintiffs here were on notice of Defendant’s objection as to the “Applicable
Period” upon Defendant’s service of its Answers to the Interrogatories. Although Defendant
29

Id.

30

Id.

31

Id.

32

Id. at *3.

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supplemented its Answers in February 2017 and again raised its objection as to the time period,
Plaintiffs were already on notice of the objection for approximately ten months. Accordingly,
the Court finds that the motion to compel, filed nearly eleven months after the triggering date
under Rule 37.1(b), is untimely.
Plaintiffs also argue in their Reply that, even if their motion is untimely, the Court should
consider it because “good cause” exists under Rule 37.1(b). They rely on two cases in which this
Court considered motions to compel that were filed more than 30 days after the Rule 37.1(b)
triggering date.33 In those cases the Court found that “good cause” existed for consideration of
the untimely motions, because the requesting party met and conferred with opposing counsel
prior to the 30-day deadline, communicated with counsel regarding the discovery disputes at
issue, and had a pre-motion conference with the assigned magistrate judge regarding the
discovery issues.34 Those factors are not present in this case. Here Plaintiffs did not
communicate their concerns to Defendant regarding the Answer to the Interrogatories until
September 2016, well outside the 30-day deadline. In fact, the parties did not meet and confer
about the Interrogatories until March 6, 2017.35
Additionally, although the parties communicated extensively and involved the Court
regarding the time period as it related to document production, they did not communicate and the
Court did not hear from them as to an issue related to the Interrogatories. While there may have
been good cause to consider an untimely motion to compel document production, a subject about
which the parties and the Court had repeatedly communicated, good cause does not similarly

33

Chicago Tribune Co., LLC v. Masterpiece Mktg. Grp., LLC, No. 13-2157-CM-KGG, 2014 WL 644941
(D. Kan. Feb. 19, 2014); McNabb v. City of Overland Park, No. 12-CV-2331 CM/TJJ, 2014 WL 1493124 (D. Kan.
Apr. 16, 2014).
34

Chicago Tribune, 2014 WL 644941, at *2; McNabb, 2014 WL 1493124, at *2.

35

ECF 56 at 2.

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exist to consider an untimely motion to compel additional answers to the Interrogatories.
Because motion is untimely and for lack of an adequate showing of good cause to address it, the
Court denies Plaintiffs’ motion to compel.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion to Compel
Supplemental Answers to Discovery Requests (ECF 56) is denied.
Dated: June 26, 2017
s/Gerald L. Rushfelt_
Gerald L. Rushfelt
U.S. Magistrate Judge

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