Swoboda v. Manders et al

Filing 54

RULING ON 38 Motion to Compel: The Motion to Compel filed by defendant Continental Incorporated, Inc., d/b/a Continental Enterprises is granted in part and denied in part. Within 14 days, the plaintiff shall provide, without objections, supplemen tal responses to Requests for Production Numbers 10, 11, 12 and 13, as discussed above. In all other respects, Continentals Motion to Compel is denied. Pursuant to Rule 37(a)(5)(C), Fed.R.Civ.P., the parties shall bear their respective costs incurred in connection with this motion. Signed by Magistrate Judge Stephen C. Riedlinger on 04/27/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MICHAEL SWOBODA
CIVIL ACTION
VERSUS
NUMBER 14-19-SCR
KARL MANDERS, ET AL
RULING ON MOTION TO COMPEL
Before the court is a Motion to Compel filed by defendant
Continental Incorporated, Inc., d/b/a Continental Enterprises.
The motion is opposed.1

Record document number 38.

Continental moved for an order to compel the plaintiff to
provide

complete

responses

to

Continental’s

first

set

of

interrogatories and requests for production of documents that were
served on September 17, 2014.

Plaintiff served his answers and

responses to requests for production on October 29, 2014.2
November

18,

2014

letter

counsel

for

Continental

In a

summarized

perceived problems with the plaintiff’s discovery responses and
objections, but the plaintiff did not revise or supplement his
answers or responses.

Accordingly, Continental filed this motion

to compel the plaintiff to do so.
Continental

argued

that:

(1)

the

plaintiff’s

relevance

1

Record document number 41.
Continental filed a reply
memorandum. Record document number 53.
2

Continental noted that in connection with its discovery
responses the plaintiff produced approximately 300 pages of
documents.

objections are baseless; (2) the plaintiff’s objection that he
cannot provide certain information and documents from German Sport
Guns GmbH (“GSG”) because they are not in his custody, control or
possession is unsupported; and, (3) the plaintiff has waived any
objections based on attorney-client privilege and work-product
protection because he failed to provide a privilege log or other
information that identifies the withheld documents and establishes
the

basic

elements

necessary

to

support

the

privilege

or

protection.
Continental’s Motion to Compel is resolved as follows.
Interrogatories
Continental’s Interrogatories Nos. 1 - 3 asked for information
about how GSG developed the design process of the KSK-1, the
identity of every individual who had a role in designing it, and
the identity of every location where GSG guns are manufactured.
Plaintiff did not answer any of these questions, stating that the
information

sought

was

not

relevant,

and

also

that

the

interrogatories sought information from GSG, which is not a party
to this suit.
opposition

to

Plaintiff maintained these objections in his
this

motion.

Plaintiff

also

argued

that

the

information is not relevant to Continental’s defense that the KSK-l
is a counterfeit of the Heckler & Koch, Inc. (“H&K”) G36, and the
information also would not be relevant to whether the defendants’
alleged scheme to have him arrested was unlawful and violated his

2

civil rights.
Continental argued that the information is relevant to the
following defenses: (1) that the defendants had a reasonable belief
at the time the charges were brought that the plaintiff was
responsible for counterfeiting H&K’s G36 design; and, (2) that the
KSK-1 is a counterfeit version of the H&K product.

Continental

also argued that the plaintiff, as both a party and the president
of GSG, he is required to provide whatever information he knows or
can obtain.
Continental’s argument that the information sought in these
interrogatories

is

relevant

to

its

defenses

is

unpersuasive.

Information regarding the actual specifications of the KSK-l, as it
is manufactured, would appear to be relevant to whether it is a
counterfeit of the G36.

However, that is not what Continental

asked for in these interrogatories.

Continental failed to explain

how obtaining information about the process of developing the KSK-1
design, who designed it, and all locations where GSG guns are
manufactured, will help to prove that the finished KSK-1 product
sold by GSG was a counterfeit of the G36.

Nor did Continental

explain how the answers to these questions could possibly provide
any information about what the defendants actually knew at the time
they gave information to law enforcement officers, which led to the

3

plaintiff’s arrest on a charge for violating LSA-R.S. 14:229.3
In

Interrogatory

No.

4,

Continental

asked

the

plaintiff

identify every trademark, copyright, or patent owned by GSG and any
of its principals.

In Interrogatory No. 5, Continental asked the

plaintiff to provide information describing the process by which
GSG determines which guns to produce.
Again,

Continental’s

argument

that

these

questions

seek

relevant information is unpersuasive. First, the questions are not
limited to the KSK-1 firearm. Even if they were, Continental
failed to articulate how the existence of a trademark, copyright or
patent for the KSK-1, or the process by which GSG decided to
produce it, could establish facts that would help prove it was a
counterfeit of the H&K G36, or could somehow be relevant to the
plaintiff’s false arrest and imprisonment claims or Continental’s
defenses.4

3

The statute requires that the thing have “a counterfeit
trademark,” which is defined as “a false trademark that is
identical to or substantially indistinguishable from” “a genuine
trademark.”
4

Relevancy arguments should be made with regard the legal
elements of a parties’ claims and defenses. For example, a claim
of false arrest and imprisonment under the Fourth Amendment
requires a showing of no probable cause, which is defined as the
facts and circumstances within the officer's knowledge that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.
The facts must be known to the officer at the time of the arrest;
post-hoc justifications based on facts later learned cannot support
an earlier arrest. Brown v. Lyford, 243 F.3d 185, 189 (5th Cir.
(continued...)
4

Continental’s motion fails to provide any basis for requiring
the plaintiff to provide supplemental answers to Interrogatory Nos.
1-5.
Requests for Production of Documents
Continental’s

motion

takes

issue

with

the

plaintiff’s

objections/responses to Request for Production Nos. 1 - 6, 10 - 14,
and 17.
Continental’s Requests for Production Nos. 1 - 6 sought the
following documents from the plaintiff: (1) all documents sent to
or received from any person related to the G36, including GSG
internal documents; (2) all documents sent to or received from
American Tactical Imports related to the G36 or the KSK-1; (3) all
documents sent to or received from any factory or production
facility related to the G36 or KSK-1; (4) all documents reflecting
sales

of

the

KSK-1;

(5)

all

documents

containing

marketing

information about the KSK-1; and, (6) all documents identifying any
customers to whom the KSK-1 was shipped for retail sale and

4

(...continued)
2001); Club Retro, LLC v. Hilton, 568 F.3d 181, 204 (5th Cir.
2009). If the facts supporting an arrest are placed before an
independent intermediary, the intermediary’s decision breaks the
chain of causation for false arrest, insulating the initiating
party. Then a plaintiff cannot prevail unless he can establish
that the defendant knowingly provided false information or gave
false information in reckless disregard of the truth, and that the
deliberations of the independent intermediary were in some way
tainted by the actions of the defendants. Taylor v. Gregg, 36 F.3d
453, 456-57 (5th Cir. 1994).
5

distribution.

Plaintiff

objected

to

each

of

these

document

requests on the same grounds, arguing that the requests called for
production of documents that were not relevant, and also sought
information from GSG, which is not a party to the suit.
Continental argued that the documents are relevant to: (1) the
plaintiff’s assertion he was not involved in manufacturing or
selling counterfeit versions of the G36; and (2) Continental’s
defense that it had a basis to believe that the plaintiff and GSG
were manufacturing and selling counterfeit goods.
Plaintiff alleged federal and state law claims for false
arrest

and

imprisonment,

intentional

infliction

of

emotional

distress, defamation, abuse of process, negligence and unfair trade
practices.

Defendants denied the plaintiff’s allegations.

Among

the defenses plead in their answer, they asserted the existence of
probable cause as found by the state court, the truth of all
statements, and privilege as to any communications with government
authorities.
Defendant’s arguments are unpersuasive.

With regard to the

KSK-1, how could documents sent to or received from any factory or
production facility, or documents containing sales, marketing and
customer information, reasonably lead to the discovery of relevant
information to the plaintiff’s claims or Continental’s defenses?
Continental’s relevancy arguments are vague and conclusory, and do
not explain how the documents encompassed within these far-reaching

6

requests could provide any relevant information.
Similarly, Request for Production Nos. 14 and 17 are patently
overbroad. These requests called for the plaintiff to produce: (1)
all

documents

trademarks,
utility

containing

registrations,

patents

submitted

applications
copyright
by

the

or

registrations

registrations,
plaintiff,

GSG

design
or

for
or

anyone

affiliated with GSG; and, (2) all document containing market
research or analysis or any type related to the G36. Request for
Production No. 14 is not limited in any way to the product or
events involved in the claims alleged by the plaintiff. As to both
requests, Continental has not presented any logical explanation of
the relevance these documents could have to the plaintiff’s claims
or their defenses to his claims.5

Continental’s motion to compel

production of documents in response to all of the above discovery
requests is denied.
Continental’s document Request for Production Nos. 10 and 11
asked the plaintiff to produce documents related to the plaintiff’s
allegations in this case, and which he or his counsel sent to or
received from the lawyers who represent GSG in the pending federal
court action in Indiana.

Continental argued that by their nature

5

For example, Continental asserted that documents containing
market research and analysis related to G36 are needed to prove its
defense that it had a reasonable belief that the plaintiff and GSG
were manufacturing and selling counterfeit versions of G36. It is
not apparent, and Continental failed to explain, how these types of
documents could help prove this defense.
7

any documents related to the allegations in the complaint are
relevant.

Continental also argued that the documents are relevant

based

its

on

belief

the

documents

received

or

sent

were

in

violation of the protective order issued by the Indiana federal
court, and they were then were used to draft the complaint in this
case.6
Plaintiff did not provide any responses to these two requests
for

production,

and

argued

that

his

relevancy

and

privilege

objections are justified. Plaintiff argued that, on their face the
requests seek production of protected work product documents and
documents that are subject to the attorney-client privilege, and
which were created after the complaint was filed.

Therefore,

plaintiff argued, he is not required to provide a privilege log.
Plaintiff maintained his objection that the request documents are
not relevant to the issues in this case.
To the extent Requests for Production Nos. 10 and 11 call for
production of documents related to allegations in the plaintiff’s
complaint in this case, the requests seek production of relevant
information.7

As to these documents the plaintiff has waived his

6

Continental’s relevancy argument based on a possible
violation of a protective order in the Indiana case is rejected.
An alleged violation of a protective order in the Indiana suit
between H&K and GSG is an issue to be addressed and resolved in
that case.
7

Continental acknowledged that Request for Production Number
11 is too broad and agreed to limit its scope to documents related
(continued...)
8

objections based on the attorney-client privilege and work product
protection.
Plaintiff did not provide, in a privilege log or other manner,
the information necessary to support his privilege/ protection
claims, as required by Rule 26(b)(5)(A), Fed.R.Civ.P.

Plaintiff’s

position that he was not required to provide a privilege log is
factually and legally unsupported. First, the plaintiff’s position
is plainly contrary to Rule 26(b)(5)(A).

Second, the cases cited

by the plaintiff do not directly support the plaintiff’s assertion
that a privilege log is not required for communications with
counsel that take place after the filing of a law suit.

In the

context of deciding an issue under Rule 26(g), the Grider case
simply included dicta which indicates that, in some circumstances,
a privilege log “may not be required” for communications with
counsel that takes place after the suit is filed.8

The authority

relied on by the plaintiff is not controlling or persuasive.
Furthermore, since the plaintiff did not produce a log or
other

details

about

responsive

documents

he

withheld,

it

is

impossible to determine whether the communications took place after
this suit was filed and would be covered by the Rule 26(b)(5)

7

(...continued)
to the allegations in this litigation. Record document number 53,
Reply Memorandum in Support of Motion to Compel, pp. 7-8.
8

Record document number 41,
Defendant’s Motion to Compel, p. 13.
9

Plaintiff’s

Opposition

to

exception the plaintiff advocates.

Finally, the plaintiff also

claimed that it would be unduly burdensome and oppressive for him
to prepare a privilege log.

Even if this was a recognized

objection to supplying a privilege log, the plaintiff failed to
provide any information about the number or nature of the documents
withheld in an attempt to show that preparing a privilege would be
unduly burdensome.
Therefore, in response to Requests for Production Nos. 10 and
11, the plaintiff must produce any documents related to allegations
in the plaintiff’s complaint.
Requests for Production Nos. 12 and 13 sought production of
documents containing blueprints, schematics or designs of the G36
and KSK-1. Plaintiff objected on grounds of relevance and that the
requests seek information from GSG which is not a party to the
suit.
Plaintiff’s

objections

are

unsupported.

Review

of

the

plaintiff’s complaint supports finding that blueprints, schematics
or designs of the two products involved would be reasonably
calculated to lead to the discovery of admissible evidence relevant
to the plaintiff’s allegations and claims.

Plaintiff failed to

demonstrate that he cannot respond because the request seeks
information from GSG.
president of GSG.

It is undisputed that the plaintiff is the
Plaintiff assertion that he does not have

access, custody or control of GSG documents is wholly unconvincing.

10

Plaintiff also argued that he does not have the legal right to
obtain or disclose the requested information.

Plaintiff submitted

a copy of and relied on Section 85 of the German Limited Liability
Code.9

Section 85 does not support the plaintiff’s argument that

it deprives him of the legal right to obtain and produce the GSG
documents,

particularly

documents

which

this

court

has

now

determined are relevant to a claim or defense in this case.
Plaintiff has not provided any corporate document, such as a
charter, articles of incorporation or by-laws, which limits his
authority to disclose such GSG documents in order to comply with a
court ruling or order.

Plaintiff’s objections on the ground that

he does not have the access or practical ability to obtain the
documents, and to now disclose them in compliance with a court
ruling or order, cannot be

upheld.

In summary, Continental is entitled to relief only with regard
to Request for Production Nos. 10 through 13.
Accordingly,

the

Motion

to

Compel

filed

by

defendant

Continental Incorporated, Inc., d/b/a Continental Enterprises is
granted in part and denied in part.

9

Section 85 states: “Whoever without authority discloses a
secret of the company, namely a company or business secret which
has become known to them in their capacity as director, member of
the supervisory board or liquidator, shall be liable to
imprisonment for no more than one year or a fine.” Record document
number 41-1, Exhibit A, p. 29. Plaintiff did not contend that
producing documents in response to these document requests would
cause him to disclose a company or business secret.
11

Within

14

days,

the

plaintiff

shall

provide,

without

objections, supplemental responses to Requests for Production
Numbers 10, 11, 12 and 13, as discussed above.
In all other respects, Continental’s Motion to Compel is
denied.
Pursuant to Rule 37(a)(5)(C), Fed.R.Civ.P., the parties shall
bear their respective costs incurred in connection with this
motion.
Baton Rouge, Louisiana, April 27, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

12