Mike Vaughn Custom Sports, Inc. v. Piku et al
Filing
51
ORDER denying 28 Motion to Compel; granting in part 32 Motion to Compel; and granting 40 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MIKE VAUGHN CUSTOM SPORTS,
INC., a Michigan corporation
Plaintiff,
Civil Action No.: 12-CV-13083
vs.
District Judge David M. Lawson
Magistrate Judge Mona K. Majzoub
CHRYSTEM “CHRIS” PIKU, an
individual, PIKU MANAGEMENT CO.
d/b/a WORLDPRO GOALTENDING USA, a Michigan corporation, and
DENNIS DOMBROWSKI, an individual
Defendants.
_____________________________/
OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO COMPEL [28],
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL
[32], AND GRANTING DEFENDANTS’ MOTION TO COMPEL [40]
This matter comes before the Court on Defendant Chrystem “Chris” Piku and Piku
Managements’ (the Piku Defendants) Motion to Compel Discovery (docket no. 28) and Motion to
Compel Deposition (docket no. 40) and Plaintiff Mike Vaughn Custom Sports, Inc’s Motion to
Compel Discovery and to Compel Deposition of Chrystem Piku (docket no. 32). Plaintiff filed
Responses to each of the Piku Defendants’ Motions (docket nos. 31 and 42), and the Piku
Defendants filed Replies (docket nos. 35 and 45). The Parties also filed a Joint Statement of
Resolved and Unresolved Issues with regard to the Piku Defendants’ Motion to Compel Discovery.
(Docket no. 37.) The Piku Defendants did not respond to Plaintiff’s Motion, but the parties did file
a Joint Statement of Resolved and Unresolved Issues related to the same, in which Defendants set
forth their “position” on this Motion. (Docket no. 38.) The motions have been referred to the
undersigned for consideration. (Docket nos. 29, 33, and 42.) The Court has reviewed the pleadings
and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The
Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.
Background
Since 1983, Plaintiff has designed, manufactured, and sold custom goaltender equipment to
hockey players at all levels, including goalies in the National Hockey League (NHL). (Docket no.
36-1 at 31.) For over 20 years, Defendant Dombrowski worked for Plaintiff in various capacities,
including as a production manager from January 2001 through November 2010. (Id.) Defendant
Chris Piku is the owner/operator of Piku Management, which ran “Worldpro Goaltending - USA,”
a goaltender training school and served as a retail outlet for Plaintiff’s goaltender equipment from
January 2009 through September 2010. (Id at 3-4.)
Plaintiff alleges that “Defendants act[ed] individually and in concert with one another to
misappropriate Vaughn Sports’ confidential business information and trade secrets, to copy Vaughn
Sports’ product designs and trade dress for their own use and economic advantage, and to develop
and put into the stream of commerce ‘knock off’ hockey goaltender products that are virtually
identical to, and that are derived from, Plaintiff’s proprietary and confidential business information
and property.” (Id. at 5.) Plaintiff notes that it terminated the Piku Defendants’ sales-agency
relationship for various reasons. (Id. at 10-11.) But Plaintiff’s specific allegations against the Piku
Defendants in this matter include (1) “surreptitiously” entering Plaintiff’s manufacturing facility
(with Defendant Dombrowski’s assistance) to inspect products and equipment; (2) copying “know-
1
Plaintiff’s First Amended Complaint is attached to its Motion for Leave to File the same.
(Docket no. 36.) In an August 15, 2013 Order, the Court, having previously granted Plaintiff’s
Motion for Leave to File, deemed that Plaintiff’s First Amended Complaint was filed as of
August 12, 2013. (Docket no. 41.)
how on the machinery, tools, process and procedures necessary to manufacture goal equipment,”
and Plaintiff’s “trade dress and product designs, all for their own wrongful use and economic
benefit;” and (3) contacting Plaintiff’s customers and prospective customers for the sale of Piku
custom goalie equipment (which Plaintiff contends were “knock-off” Vaughn products).2 (Id. at 1114.) Plaintiff’s claims against the Piku Defendants include Trade Dress Infringement (Count I),
Trademark Dilution (Count II), False Designation of Origin (Count III), Trade Dress Dilution (Count
IV), Common Law Unfair Competition and Trade Dress Infringement (Count V), violations of the
Michigan Uniform Trade Secrets Act (Count VI), Breach of Duty of Loyalty (Count IX), Breach of
Fiduciary Duty (Count X), Business Defamation (Count XI), Intentional Interference with Contract
and Business Advantage (Count XII), and Civil Conspiracy (Count XIII). (Id. at 14-29.)
Plaintiff filed its initial Complaint on July 13, 2012. (Docket no. 1.) On September 21,
2012, Plaintiff served on the Piku Defendants Plaintiff’s First Set of Interrogatories (docket no. 322) and Plaintiff’s First Request for Production of Document (docket no. 32-3). The sufficiency of
the Piku Defendants’ responses are at issue in Plaintiff’s Motion to Compel. (Docket no. 32.) The
Court held a status conference on November 26, 2012, at which time the Parties discussed various
discovery issues. (See docket no. 31 at 3.) On December 10, 2012, the Piku Defendants served
Plaintiff with Defendants’ First Set of Interrogatories (docket no. 28-3) and Defendants’ First Set
2
Although not necessary for determination of this Motion, for purposes of context,
Plaintiff’s specific allegations against Defendant Dombrowski include (1) his assisting another
former Vaughn Sports’ employee, Peter Smith, “in the establishment of [a] competing business”
while Dombrowski was still employed by Plaintiff; (2) providing Plaintiff’s confidential
information to Smith; (3) causing Plaintiff’s other employees to slow or cease production
unnecessarily; (4) providing Plaintiffs’ products to third parties (including the Piku Defendants)
to assist them in developing competing businesses; (5) removing, or arranging for the removal
of, his personnel file; and (6) stealing Plaintiff’s “Vendor Book” and “Master Inventory Book,”
purportedly to provide the information in those books to third parties, including the Piku
Defendants. (Id. at 6-10.)
of Request for Production of Documents (docket no. 28-4). The sufficiency of Plaintiff’s Responses
to these discovery requests are at issue in Defendant’s Motion to Compel Discovery. (Docket no.
28.)
On May 6, 2013, Plaintiff noticed the deposition of Defendant Chris Piku for May 24, 2013.
(Docket no. 32-16.) Included in Plaintiff’s Motion to Compel, filed on June 17, 2013, is a request
that the Court order Defendant Chris Piku to be produced for his deposition. (Docket no. 32.) In
the Parties’ Joint Statement, however, Plaintiff acknowledges that it was able to conduct the
deposition on July 10, 2013. (Docket no. 38 at 2.) Nevertheless, Plaintiff contends that Mr. Piku’s
deposition testimony was evasive and that he failed to produce documents as required. (Id. at 2-4.)
Thus, Plaintiff requests that the Court order Mr. Piku to produce such documents and to appear for
“meaningful completion of [his] deposition.” (Id. at 4.)
On May 17, 2013, Michael Vaughn, Vaughn’s President, gave deposition testimony lasting
five hours. (See docket no. 44-2.) Mr. Vaughn was deposed again on June 21, 2013, for another six
hours. (See docket no. 44-3.) The Piku Defendants seek to continue Mr. Vaughn’s deposition over
Plaintiff’s objection. (Docket no. 40.)
II.
Governing Law
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite
broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery
on any matter that is not privileged and is relevant to any party’s claim or defense if it is reasonably
calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). “Relevant
evidence” is “evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without the
evidence.” Fed.R.Evid. 401. But the scope of discovery is not unlimited. “District courts have
discretion to limit the scope of discovery where the information sought is overly broad or would
prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d
288, 305 (6th Cir. 2007).
Rules 33 and 34 allow a party to serve interrogatories and requests for production of
documents on an opposing party. Fed.R.Civ.P. 33, 34. A party receiving these types of discovery
requests has thirty days to respond with answers or objections. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A).
Rule 30 allows a party to conduct a deposition of any person without leave of the Court, subject to
certain exceptions. Fed.R.Civ.P. 30(a)(1). If the party receiving discovery requests under Rules 33
or 34 fails to respond properly or if the person whose deposition is sought under Rule 30 fails to
properly comply with the rule, Rule 37 provides the party who sent the discovery or noticed the
deposition the means to file a motion to compel. Fed.R.Civ.P. 37(a)(3)(B). If a court grants a Rule
37 motion to compel, then the court must award reasonable expenses and attorney’s fees to the
successful party, unless the successful party did not confer in good faith before the motion, the
opposing party’s position was substantially justified, or other circumstances would make an award
unjust. Fed.R.Civ.P. 37(A)(5)(a).
III.
Analysis
A.
The Piku Defendants’ Motion to Compel Discovery [28]
The Piku Defendants served Plaintiff with their First Set of Requests for Production of
Documents and the First Set of Interrogatories on December 12, 2012. (Docket nos. 28-3 and 28-4.)
Defendants contend that Plaintiff’s responses were “wholly inadequate” and that “Plaintiff’s Counsel
has not been willing to arrange for review of documents and things . . . ‘at a mutually convenient
time.’” (Docket no. 28 at 6.) In support of this position, Defendants cite to two emails, sent on
January 28, 2013, and May 3, 2013, from Defendants’ counsel to Plaintiff’s counsel asking for
various discovery materials (docket no. 28-2 at 1-2) and a letter sent from Defendants’ counsel to
Plaintiff’s counsel on May 7, 2013, setting forth various arguments as to why Plaintiff’s responses
to various discovery requests are inadequate. (Docket no. 28-2 at 3.) Defendants’ Motion, however,
does not set forth any argument regarding why Plaintiff’s responses are insufficient. Moreover,
Local Rule 37.2 requires that “[a]ny discovery motion filed pursuant to Fed. R. Civ. P. 26 through
37, shall include, in the motion itself or in an attached memorandum, a verbatim recitation of each
. . . response, and objection which is the subject of the motion or a copy of the actual discovery
document which is the subject of the motion.” E.D. Mich. L.R. 37.2 (emphasis added). Defendants
have neither included a verbatim recitation or the allegedly inadequate responses in their Motion nor
have they attached the responses to their Motion. Thus, the Court could deny Defendants’ Motion
on procedural grounds.
Nevertheless, Plaintiff has provided a copy of its responsive documents. (Docket nos. 31-20,
30-21, and 31-22.) And although not set forth in any motion or brief until the Parties’ Joint
Statement filed on July 26, 2013, Defendants’ argument appears to center around Plaintiff’s
responses to Interrogatory Nos. 4, 7, and 11, and Requests to Product Nos. 5, 6, 7, 8, 10, 11, 12, 14,
15, 17, and 21a, 21b, and 21i). (Docket no 37 at 5.) Thus, the Court could attempt to determine the
substance of Defendants’ arguments. Indeed, the Court has attempted to do so, but Defendants’
arguments are too vague. For example, Defendants’ Motion merely sets forth the applicable
discovery standards and argues, generally, that “Vaughn has failed to respond to [Defendants’]
requests in the manner required by the Federal Rules.” (Docket no. 28 at 9.) And while somewhat
more specific, Defendants’ Reply brief provides “example[s]” of deficient discovery, such as
Plaintiff’s “refus[al] to turn over its complete financial data” or “to identify the personnel at the
NHL who allegedly castigated Plaintiff for ‘illegal’ product as set forth in the Complaint.” (See
docket no. 35 at 2.) These vague assertions are insufficient for the Court to meaningfully address
Defendants’ Motion.
Moreover, Plaintiff asserts that Defendants’ counsel has ignored offers to meet and review
discovery documents and product specimens; has ignored offers to visit Plaintiff’s manufacturing
facility; has been “out of town” on multiple occasions; has neglected to read pleadings, papers, and
discovery responses before making demands for documents already produced; and has failed to
follow the discovery plan agreed to by the parties and Judge Lawson. (Docket no. 31 at 4.) In
support of this position, Plaintiff provides 18 email communications between Plaintiff’s counsel and
Defendants’ counsel from October 17, 2012, through June 4, 2013, wherein Plaintiff’s counsel
appears to attempt to resolve some of the discovery matters at issue in the instant Motion. (See
docket nos. 31-2 through 31-19.) For example, On February 7, 2013, Plaintiff’s counsel offered
Defendants’ counsel an opportunity to view Plaintiff’s plant following Mr. Vaughn’s deposition.
(Docket no. 31-5.) And on February 8, Plaintiff’s counsel confirmed that he would meet with
Defendants’ counsel on February 12, 2013, “to go over our document production.” (Docket no. 3110.) These examples stand in stark contrast to Defendants’ characterization that “Plaintiff’s Counsel
has not been willing to arrange for a review of documents and things” or that requests to discuss
discovery issues “have been completely rebuffed.” (See docket no. 28 at 6.) Therefore, because the
Court cannot properly address Defendants’ arguments with regard to the discovery matters at issue
due to the lack of detail in Defendants’ Motion, and because it appears that Plaintiff’s counsel has
worked in good faith to resolve this dispute, the Court will deny Defendants’ Motion.
B.
Plaintiff’s Motion to Compel Discovery and Deposition of Chris Piku [32]
1.
Interrogatories and Requests for Production of Documents
On September 21, 2012, Plaintiff served the Piku Defendants with its First set of
Interrogatories and First set of Requests for Production. (Docket nos. 32-2 and 32-3.) Defendants
responded in December 2012, and Plaintiff now asserts that Defendants’ responses are “wholly
inadequate.” (Docket no. 32.) Defendants did not respond, but like Defendants, Plaintiff has failed
to comply with E.D. Mich. L.R. 37.2. Nowhere in Plaintiff’s Motion, the accompanying brief, or
the myriad of attachments does Plaintiff provide the Court with a verbatim recitation of the
discovery responses that it deems inadequate. Plaintiff cites to an email sent by Plaintiff’s counsel
discussing an allegedly improper limitation to “certain items of goalie equipment,” that is, pads,
catcher gloves, and blockers, as well as some allegedly missing emails and photographs. (Docket
no. 32 at 4.) Other than this vague reference, however, Plaintiff leaves the Court, in Plaintiff’s own
words, “to guess at[] what it is [it] is purportedly asking for in the Motion.” (See docket no. 31 at
6.)
Moreover, while Defendants failed to respond to Plaintiff’s Motion, Defendants assert in the
Parties’ Joint Statement that either they do not have the items sought by Plaintiff, the information
Plaintiff seeks was lost or destroyed, or the information sought is outside the scope of the litigation.
(Docket no. 38 at 4-5.) Defendants also note that “[a]nything not yet produced which is available
will be produced.” (Id. at 5.) Therefore, because Plaintiff failed to comply with Local Rule 37.2,
and because Defendants assert that they have produced or will produce all available documents, the
Court will deny Plaintiff’s Motion in this regard.
2.
Deposition of Defendant Chris Piku
From early December 2012 through the date of Plaintiff’s Motion, June 17, 2013, Plaintiff
appears to have attempted to schedule the deposition of Defendant Chris Piku. (See docket nos. 32-5
and 32-8 through 32-15.) Plaintiff’s Motion sought an order compelling Mr. Piku to appear at his
deposition, but the Parties note in their Joint Statement that Plaintiff was able to conduct Mr. Piku’s
deposition on July 10, 2013. (Docket no. 38 at 2.) Nevertheless, Plaintiff contends that Mr. Piku
produced no documents, product samples, or computer hard-drive information, despite having been
commanded to do so in the Notice of Deposition. (Id. at 2-3.) Further, Plaintiff asserts that
Defendant gave vague and evasive answers to a number of questions that he should have been able
to answer. (Id. at 3-4.) Plaintiff does not appear to respond to these allegations. (Id. at 4-5.)
Plaintiff makes a new request in the Parties’ Joint Statement; that is, Plaintiff requests that
the Court order a continued deposition of Mr. Piku rather than an initial deposition. (Compare
docket no. 32, with docket no. 38.) The Court will grant Plaintiff’s Motion for two reasons. First,
Defendants failed to respond to Plaintiff’s initial motion, which makes Plaintiff’s motion unopposed;
and when given an opportunity to address Plaintiff’s supplemental request in the Parties’ Joint
Statement, Defendants again failed to respond adequately. Second, accepting Plaintiff’s account of
Mr. Piku’s deposition as accurate in light of Defendants’ failure to contest the same,3 the Court finds
that Mr. Piku’s evasive answers and his failure to produce documents was akin to failing to answer
entirely. See Fed.R.Civ.P. 37(a)(4). Therefore, in light of the Court’s broad discretion in discovery
matters, the Court will order Defendant Chris Piku to attend a second deposition at a time mutually
convenient for counsel in this matter; Mr. Piku must, however, make himself available for his
deposition within 21 days of this Order. Additionally, the Court will order Mr. Piku to produce, at
the time of his deposition, any and all documents that he was ordered to produce in his initial
deposition notice.
C.
The Piku Defendants’ Motion to Compel Deposition [40]
As noted, on May 17, 2013, Michael Vaughn, Vaughn’s President, gave deposition testimony
3
Notably, neither party attached a transcript of Mr. Piku’s deposition.
lasting five hours.
(See docket no. 44-2.)
This deposition was conducted by Defendant
Dombrowski’s attorney; the Piku Defendants’ counsel was present. (See id.) Mr. Vaughn was
deposed again on June 21, 2013, for another six hours. (See docket no. 44-3.) The first 45-minute
portion of his deposition on June 21, 2013, was conducted by Defendant Dombrowski’s attorney;
the Piku Defendants’ counsel began questioning Mr. Vaughn and continued for approximately 4.5
hours. (See docket no. 40 at 7.) The Piku Defendants seek to continue Mr. Vaughn’s deposition for
a third day over Plaintiff’s objection. (Docket no. 40.)
Rule 30(d)(1) limits a deposition to one day of seven hours unless additional time is needed
to fairly examine the deponent. Fed. R. Civ. P. 30(d)(1). Plaintiff asserts that Mr. Vaughn has
already given more than 11 hours of deposition testimony and that any further testimony is
unnecessary. (Docket no. 44 at 7.) Moreover, Plaintiff argues, the Piku Defendants’ counsel was
unnecessarily rude to Mr. Vaughn during his deposition, including raising his voice at the witness,
cutting the witness off during his answers, and telling Mr. Vaughn that his products were “crappy.”
(See docket. No. 44 at 2.)
Defendants argue that the two depositions, that is, Defendant
Dombrowski’s deposition of Mr. Vaughn and the Piku Defendants’ Deposition of Mr. Vaughn, were
separate depositions for purposes of Rule 30(d)(1). Thus, Defendants assert, they have only deposed
Mr. Vaughn for a total of roughly five hours. (Docket no. 45 at 2.) The Piku Defendants do not
address Plaintiff’s allegations of harassment by their counsel.
Although the final pages of the deposition transcript provided by Plaintiff show Defendants’
counsel stating that Plaintiff’s counsel “has refused to continue this deposition,” the lack of any
pages leading up to this statement leaves the court to speculate as to whether such refusal was based
on Defense counsel’s conduct, the time that Mr. Vaughn had already spent testifying, or both. (See
docket no. 44-3 at 5.) Nevertheless, in light of the nature and scope of Plaintiff’s claims, because
the Piku Defendants’ counsel did not actively participate in the deposition conducted by Defendant
Dombrowski’s attorney, and because the Court finds that the Piku Defendants need additional time
to fairly examine Mr. Vaughn, the Court will grant Defendants’ Motion. The Court will, however,
limit the scope and manner of Mr. Vaughn’s continued deposition as follows:
a.
Defense counsel’s questioning of Mr. Vaughn during the continued deposition will
be limited to four hours, excluding any breaks;
b.
Mr. Vaughn’s deposition must be conducted at a time and place convenient for Mr.
Vaughn and his counsel, including Plaintiff’s plant in Oxford, MI,4 within 30 days
of this Order, provided however, that such time and place may not be unreasonably
burdensome to defense counsel, including Mr. Dombrowski’s counsel should he
wish to attend; and
c.
Plaintiff’s counsel will be permitted to discontinue the deposition if defense counsel
engages in any harassing conduct.
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel [28] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Discovery and Deposition
of Chris Piku [32] is GRANTED IN PART and DENIED IN PART.
a.
Plaintiff’s Motion to Compel Discovery materials is Denied.
b.
Plaintiff’s Motion to Compel Defendant Chris Piku’s deposition is granted.
Mr. Piku is ordered to appear at a deposition within 21 days of this order at
a time mutually convenient for the parties and their respective counsel. Mr.
4
Notably, holding Mr. Vaughns deposition at the Oxford, MI plant will, as suggested by
Plaintiff, provided defense counsel with a convenient opportunity to inspect the plant, as was
apparently requested in Defendants’ discovery requests.
Piku is further ordered to produce at the time of this deposition any and all
documents that he was ordered to produce in his initial deposition notice.
IT IS FURTHER ORDERED that Defendant’s Motion to Compel [40] is GRANTED.5
Michael Vaughn is hereby ordered to appear for a continued deposition by the Piku Defendants
within 30 days of this order subject to the following limitations:
a.
Defense counsel’s questioning of Mr. Vaughn during the continued deposition is
limited to four hours, excluding any breaks;
b.
Mr. Vaughn’s deposition must be conducted at a time and place convenient for Mr.
Vaughn and his counsel, provided however, that such time and place may not be
unreasonably burdensome to defense counsel, including Mr. Dombrowski’s counsel
should he wish to attend; and
c.
Plaintiff’s counsel is permitted to discontinue the deposition if defense counsel
engages in any harassing conduct.
NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days
from the date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).
Dated: October 29, 2013
5
s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
Having granted Defendant’s Motion to Compel, in general, the Court “must . . . require
[Plaintiff or its attorney] to pay [Defendants’] reasonable expenses.” Fed. R. Civ. P. 37(a)(5).
Nevertheless, the Court “must not order this payment if . . . (ii) the opposing party’s [position]
was substantial justified.” Id. The Court finds that Plaintiff’s arguments were substantially
justified in light of defense counsel’s conduct and the 11 hours of testimony already given by
Mr. Vaughn. Therefore, the Court will not order payment of expenses.
PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.
Dated: October 29, 2013
s/ Lisa C. Bartlett
Case Manager
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