Wesley Corporation et al v. ZOOM T.V. PRODUCTS et al

Filing 47

OPINION AND ORDER GRANTED IN PART 36 Motion for Protective Order; DENIED WITHOUT PREJUDICE 41 Motion to Compel; DENIED WITHOUT PREJUDICE 42 Motion to Compel; Extending Dispositive Motion cutoff to 2/9/2018 and setting the deadline to file the memorandum requesting attorney fees by 1/19/2018. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WESLEY CORPORATION, et al.,
Plaintiffs,
v.

Case No. 17-10021

ZOOM T.V. PRODUCTS, LLC, et al.,
Defendants.
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OPINION AND ORDER EXTENDING DEADLINES,
GRANTING IN PART DEFENDANTS’ MOTION FOR PROTECTIVE ORDER,
AND ORDERING FURTHER BRIEFING
This is not the first time these parties have been before the court. In July 2015,
Plaintiffs brought suit against Defendant Zoom TV Products (“Zoom TV”) for patent
infringement and breach of contract. See Wesley Corp. v. Zoom TV Prods., No. 1512449 (Cleland, J.). The parties settled that case on July 22, 2016. (See Settlement
Agreement Dkt. #1-1 Pg. ID 12.) The court entered a stipulated order of dismissal about
a month later. See Wesley Corp., No. 15-12449, Dkt. #30.
But Defendant Zoom TV and its marketing affiliate, Defendant Ideavillage
Products Corporation (“Ideavillage”), have allegedly breached the settlement
agreement. (See Dkt. #1.) They have also—along with ten John Doe Defendants—
allegedly infringed on Plaintiffs’ federally-registered trademark and patents since the
effective date of the settlement. (Id.) Though a scheduling order was entered in this
action in June, the parties have now—over five months later—brought rudimentary
discovery disputes to the court. Presently before the court are three motions: a motion

for protective order filed by Defendants (Dkt. #36) and two motions to compel filed by
Plaintiffs (Dkt. ##41, 42). Plaintiffs responded to Defendants’ motion for a protective
order. (Dkt. #39.) The court held a hearing on December 12, 2017. For the following
reasons, the court will extend the deadlines in this case, limit the applicable discovery
period, and order further submission from Plaintiffs.
I. STANDARD
The scope of discovery is within the sound discretion of the court. Anwar v. Dow
Chem. Co., 876 F.3d 841, 854 (6th Cir. 2017); Surles v. Greyhound Lines, Inc., 474
F.3d 288, 305 (6th Cir. 2007). Unless the court limits discovery, “[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.” Fed. R. Civ. P. 26(b)(1).
Among the court’s powers to regulate discovery is the authority to “issue an order
to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense” for good cause shown by the moving party. See Fed. R. Civ. P.
26(c). “[T]o justify a protective order, one of Rule 26(c)(1)’s enumerated harms must be
illustrated with a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.” Serrano v. Cintas Corp., 699 F.3d 884, 901
(6th Cir. 2012). The party requesting a protective order must, therefore, point to facts
showing that some discovery would cause annoyance, embarrassment, oppression, or
undue burden or expense sufficient to justify entry of a protective order. Id.
II. DISCUSSION
Defendants ask for a protective order limiting discovery to the time after the
settlement agreement took effect. According to Defendants, any information or

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documents from before the settlement agreement would be irrelevant. They also ask
that Plaintiffs’ counsel follow the Federal Rules of Civil Procedure and the Local Rules
when setting depositions. (Dkt. #36.) Plaintiffs, in response, argue that they are entitled
to discovery covering at least some time period before the settlement agreement and
propose a little over seven months’ worth, as they request discovery dating back to
January 1, 2016. (Dkt. #39 Pg. ID 205–06.) They also argue that they properly noticed
the depositions of which Defendants complain, and they point out that Defendants failed
to attach to their motion the allegedly noncompliant deposition notices.
Plaintiffs, on the other hand, request an order compelling Defendants to produce
documents in response to Plaintiffs’ requests (Dkt. #42) and an order compelling
Defendants to amend their interrogatory responses (Dkt. #41). To date, Defendants
have not produced a single document. Instead, Defendants repeat the same objection
to nearly every request for production. (See Dkt. ##42-1, 42-2.) Defendants also repeat
the same objection to nearly every interrogatory. (See Dkt. ##41-1, 41-2.)
Plaintiffs also ask the court to order Defendants to verify their interrogatory
answers and verify, as to their document production, “that a diligent search has been
made by the custodians for responsive documents and ESI.” (Dkt. #42 Pg. ID 365.)
Plaintiffs request that this latter verification include “the date of such search; the name
and address of such custodian; [and a statement that] the ESI search was made in
accordance with best practices for each repository[,] including cell phones.” (Id.)
Defendants did not respond in briefing to these motions. At the hearing, Defendants
represented that they had no responsive documents and that the appropriate
verifications had been sent to Plaintiffs’ counsel.

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The court addresses each of these requests in turn.
A. Protective Order
Defendants assert that they should not have to respond to discovery requests
relating to a time before the court’s entry of dismissal in the prior case. Anything prior to
the entry of that dismissal, according to Defendants, would be irrelevant because
Plaintiffs only seek relief “for activities of Defendants subsequent to the prior case.”
(Dkt. #36 Pg. ID 193.) Defendants argue that discovery should be limited to the period
after the court’s entry of dismissal in August 2016. It is a minor detail, but nonetheless
unclear why that date would be identified and not the date of the settlement agreement,
July 22. In any event, the court agrees with Plaintiffs that such a limitation is not
warranted in this case.
Defendants have not, in their one page argument, offered a “specific
demonstration of fact” that discovery of information prior to the settlement agreement
would cause “annoyance, embarrassment, oppression, or undue burden or expense.”
Information and documents dating before the settlement agreement are not, as
Defendants would have it, inherently irrelevant. It is entirely plausible that discovery
sought by Plaintiffs could provide necessary or helpful context to the settlement, or
could demonstrate that Defendants never intended to abide by the settlement
agreement at all. The court will not speculate on as-yet unknown facts of this case, but
only notes that these easily imagined possibilities make Defendants’ claim of per se
irrelevance unpersuasive.
The court will, however, impose a reasonable restriction on how far back
discovery may extend. Because the parties’ discovery is most obviously and

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appropriately directed to providing context for the settlement, discovering activity for
approximately three months before the agreement should sufficiently set the stage for
Plaintiffs’ claims in this case. Discovery, therefore, should not be sought for information
or documents dating to before on or about April 22, 2016.
Defendants have also requested that the court order Plaintiffs to abide by both
federal and local rules when setting depositions. The court, as noted below, will extend
the deadline for Plaintiffs to take depositions. Given this extension—and given the
parties’ avowals in filing (Dkt. #45 Pg. ID 426) and at the hearing that they will
coordinate depositions among themselves—the court need not address the propriety of
Plaintiffs’ earlier deposition notices.
B. Motions to Compel
Plaintiffs attached to their motion Defendants’ responses to interrogatories and
requests for production. (See Dkt. ##41-1, 41-2, 42-1, 42-2.) They paint a bleak picture
of Defendants’ attitude in discovery as they robotically recite the same “objection” to
each of Plaintiffs’ sixteen interrogatories, save two. Defendants’ refrain is this:
ZOOM [or IDV] objects to this interrogatory as vague, overly broad, unduly
burdensome, harassing, and/or seeking information that is irrelevant
and/or not reasonably calculated to lead to the discovery of admissible
evidence. Subject to, and without waiving its objection, . . .
Defendants do not explain why an interrogatory is vague, in what way it is overly broad,
or provide any explanation of undue burden or harassment. No information is given in
support of the claim that an interrogatory seeks irrelevant information. Defendants
merely assert the “objection” and leave it to Plaintiffs—and the court—to try to sort out
how and why the interrogatory is somehow improper.

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Perhaps unsurprisingly, the court has found no even arguable deficiency with
many of the interrogatories it has reviewed. Interrogatory 6, for example, asks: “If you
contend that you ceased advertising and/or promotion of the Accused Products,
describe in detail the factual and legal bases for such contention.” (Dkt. #41-1 Pg. ID
323; Dkt. #41-2 Pg. ID 335.) This request merely asks Defendants to describe the
bases for their belief (if they have one) that they ceased advertising and promotion of
Plaintiffs’ products. It is in no way vague. Neither is it overly broad, or unduly
burdensome. Or harassing. Or seeking information that is irrelevant.
Defendants’ foot-dragging obstructionism continues in its responses to Plaintiffs’
requests for production. Again, the court could use any one of Defendants’ responses
as an example because each is identical.1 Defendants’ responses to requests for
production provide:
ZOOM [or IDV] objects to this request as vague, overly broad, unduly
burdensome, harassing, and/or seeking information that is irrelevant
and/or not reasonably calculated to lead to the discovery of admissible
evidence. Subject to, and without waiving its objection, ZOOM [or IDV]
indicates it does not have any responsive documents within its
possession, custody and control.
Defendants’ objections to these requests similarly lack any explanation.

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With one exception: Defendants’ response to Request for Production 12
includes the addition of one sentence. For Zoom TV: “ZOOM notes, it provided
documents previously to counsel for Defendants on this topic.” (Dkt. #42-1 Pg. ID 382.)
For Ideavillage: “IDV notes, it provided documents previously to counsel for Defendants
on this topic.” (Dkt. #42-2 Pg. ID 396.) The court doubts that Defendants meant to say
that they provided documents to their own counsel; it seems more likely that Defendants
simply referred to counsel for “Defendants” instead of “Plaintiffs” as a typographical
error. Whether erroneously or correctly stated, this one sentence addition in no way
cures the deficiencies and obstructionist behavior identified by the court.
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Based on Defendants’ representations at the hearing, the court will not now order
Defendants to provide verifications for their discovery responses. Should the need arise
later, Plaintiffs are invited to make an appropriate motion. The court will, however, turn
to the substance—or lack thereof—in Defendants’ discovery responses.
i. The Problem of Boilerplate
Defendants’ “objections” to these discovery requests are the typical boilerplate
objections known and detested by courts and commentators—and receiving parties—
around the nation. A “boilerplate” objection is one that is invariably general; it includes,
by definition, “[r]eady-made or all-purpose language that will fit in a variety of
documents.” Boilerplate, Black’s Law Dictionary (10th ed. 2014). Thus, “[a]n objection to
a discovery request is boilerplate when it merely states the legal grounds for the
objection without (1) specifying how the discovery request is deficient and (2) specifying
how the objecting party would be harmed if it were forced to respond to the
request.”Jarvey, Matthew L., Boilerplate Discovery Objections: How They Are Used,
Why They Are Wrong, and What We Can Do About Them, 61 Drake L. Rev. 913, 914
(2013).
Boilerplate objections to interrogatories and requests for production are not
permitted under the Federal Rules of Civil Procedure. Rule 33(b)(4) requires that
objections to interrogatories be made “with specificity” and provides that “[a]ny ground
not stated in a timely objection is waived unless the court, for good cause, excuses the
failure.” Rule 34(b)(2)(B) requires that objections to requests for production “state with
specificity the grounds for objecting to the request.” Rule 34(b)(2)(C) further demands

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that “[a]n objection must state whether any responsive materials are being withheld on
the basis of that objection.”
When objections lack specificity, they lack effect: an objection that does not
explain its grounds (and the harm that would result from responding) is forfeited.
“Boilerplate or generalized objections are tantamount to no objection at all and will not
be considered . . . .” Strategic Mktg. & Research Team, Inc. v. Auto Data Solutions, Inc.,
15-12695, 2017 WL 1196361, at *2 (E.D. Mich. Mar. 31, 2017) (Murphy III, J.) (quoting
Nissan N. Am., Inc. v. Johnson N. Am., Inc., No. 09-11783, 2011 WL 669352, at *2
(E.D. Mich. Feb. 17, 2011) (Majzoub, M.J.)). Lawyers who purport to “preserve” an
objection by including it in a boilerplate statement must be prepared to face the fact that
the result of a substance-free objection is generally “the opposite of preservation[,]” i.e.,
forfeiture. Jarvey, Boilerplate, supra, at 925. Similarly, the common “notwithstandingthe-above” designations that frequently follow a boilerplate objection and precede a
more substantive response also fail to preserve objections. Id. The idea that boilerplate
in some talismanic way preserves an objection is fallacy. It has been fairly styled an
“urban legend,” one that promotes the misuse of the objection process and amounts to
nothing less than “a waste of effort and the resources of both the parties and the court.”
Id. (quoting Guzman v. Irmadan, Inc., 249 F.R.D. 399, 401 (S.D. Fl. 2008)).
This court is not the first—nor will it be the last—to condemn the use of
boilerplate objections. Indeed, perhaps the only thing more surprising than the
pervasive reliance on boilerplate is the practice’s continued existence in the face of
strong and widespread criticism by federal courts. See, e.g., Black v. Pension Benefit
Guar. Corp., No. 09-13616, 2014 WL 3577949, at *2 (E.D. Mich. July 21, 2014)

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(Tarnow, J.) (“The Court strongly condemns the practice of asserting boilerplate
objections to every discovery request.”); Kristensen v. Credit Payment Servs., Inc., No.
12-0528, 2014 WL 6675748, at *4 (D. Nev. Nov. 25, 2014) (describing a party’s “general
and additional objections” as “boilerplate objections which are designed to evade,
obfuscate, and obstruct discovery”); Lowe v. Vadlamudi, No. 08-10269, 2012 WL
3731781, at *3 (E.D. Mich. Aug. 28, 2010) (Lawson, J.) (noting that a party’s boilerplate
objections “do not gain in substance through repetition”); Marti v. Baires, No. 08-00653,
2012 WL 2029720, at *11 (E.D. Cal. June 5, 2012) (“The Court will not countenance any
party’s effort to obstruct discovery through objections or evasive responses which lack
any good faith basis.”); Near v. Eli Lilly & Co., No. 07-00006, 2008 WL 11334459, at *1
(S.D. Iowa July 16, 2008) (“[T]he use of boilerplate, unsubstantiated objections is
rejected by federal courts.”). These cases, in their interpretation of the discovery rules
and their denunciation of boilerplate, “are not aspirational, they are the law.” Liguria
Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 191 (N.D. Iowa Mar. 13, 2017).
ii. Attorney Fees
Courts and commentators have called on courts to deter boilerplate by imposing
sanctions with their inherent power and under Federal Rule of Civil Procedure 26. See,
e.g., id. at 187–88; Jarvey, Boilerplate, supra, at 932 (“In order to curb boilerplate
objections, judges should be more willing to dole out sanctions against lawyers who
abuse the discovery process by issuing these objections.”). The advisory committee
notes to Rule 26 also contemplate sanctions as a solution to discovery abuses. Fed. R.
Civ. P. 26(g) Advisory Committee’s Note to 1983 Amendment (“Thus the premise of

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Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule's standards
will significantly reduce abuse by imposing disadvantages therefor.”)
Plaintiffs have requested their reasonable attorney fees incurred in connection
with their motions to compel. (Dkt. #41 Pg. ID 309; Dkt. #42 Pg. ID 365.) The court
agrees that in light of Defendants’ conduct in discovery, and in light of the need to deter
future use of boilerplate, a sanction in the form of attorney fees is warranted. Plaintiffs
are not entirely blameless in this proceeding, however, as they delayed—without
explanation so far as the court knows—for more than four months before serving their
first discovery requests. The court will take Plaintiffs’ delay into account when fashioning
an appropriate sanction in this case. But the court will wait to decide the exact
parameters of a fee shifting sanction until after Plaintiff has had an opportunity to be
heard on what fees are warranted and the parties have had the opportunity to consult
and agree.
C. Discovery Deadlines
In light of the foregoing, the parties agreed at the hearing that a limited extension
of discovery deadlines is warranted. They suggested to the court that Defendants
should have 45 days to amend their responses to Plaintiffs’ discovery requests, and
Plaintiffs should have 60 days to complete their depositions. The court agrees that
these extensions are appropriate and will grant them. Because Defendants will amend
their discovery responses, the court will not grant Plaintiffs’ motions to compel at this
time. Should Defendants’ amended responses continue to appear facially deficient,
however (especially if they again embrace unexplained boilerplate), Plaintiffs may file
another motion to compel.

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III. CONCLUSION
Discovery is a matter that should be directed and controlled by attorneys in
accordance with the federal rules and their professional and ethical obligations. The
court does not enjoy stepping in to regulate the process where attorneys engage in footdragging and obstructionism. The court enjoys imposing sanctions even less. But here
the parties have demonstrated that intervention is necessary, and the court has
fashioned this order accordingly. Further intervention will no doubt be accompanied by
more significant sanctions, all as may be justified by subsequent events. Accordingly,
IT IS ORDERED that Defendants’ Motion for Protective Order (Dkt. #36) is
GRANTED IN PART. Discovery in this matter will be limited to the period of
approximately April 22, 2016 to the present.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Defendants’
Responses to Plaintiffs’ Interrogatories (Dkt. #41) and Plaintiffs’ Motion to Compel
Defendants’ Responses to Plaintiffs’ Document Requests (Dkt. #42) are DENIED
WITHOUT PREJUDICE. Defendants will have until January 25, 2018 to amend their
responses to Plaintiffs’ Interrogatories and Requests for Production.
IT IS FURTHER ORDERED that Plaintiffs have until February 9, 2018 to
complete their depositions.
IT IS FURTHER ORDERED that the dispositive motion cutoff is reset for
March 9, 2018.
IT IS FURTHER ORDERED that Plaintiffs file a concise but explanatory
memorandum of no more than about seven pages requesting attorney fees related to
these motions by January 19, 2018; the request should take into account a reasonable

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reduction for Plaintiffs’ delay in commencing discovery. Plaintiffs should attach to their
brief a reasonably detailed proposed invoice for attorney fees. Plaintiffs are expected to
abide by E.D. Mich. L.R. 7.1(a)—which requires that they seek concurrence from
Defendants and provide Defendants an opportunity to respond—before filing their
request. Agreement between the parties on the details of a fees sanction obviates the
need for Plaintiffs’ memorandum.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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Dated: January 11, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 11, 2018, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\KNP\Civil\17-10021.WESLEY.discovery.order.compel.protective.KNP.RHC2.docx

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