Henkel of America, Inc. v. Bell et al

Filing 37

ORDER DENYING Plaintiff's 25 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HENKEL OF AMERICA, INC.,
Plaintiff,
Case No. 2:17-cv-13909
District Judge David M. Lawson
Magistrate Judge Anthony P. Patti

v.

CRAIG M. BELL and
KNIGHT CAPITAL PARTNERS
CORPORATION,
Defendants.
___________________________________/
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL (DE 25)
A.

Background

Plaintiff initiated this lawsuit on December 5, 2017, alleging: (I) Breach of
Noncompete Provision against Defendant Bell; (II) Breach of Nondisclosure
Provision against Defendant Bell; (III) Breach of Contract Due to Bell’s Violation
of Henkel’s Policies and Procedures on Confidential Information against
Defendant Bell; (IV) Breach of Contract Due to Bell’s Violation of Henkel’s
Policies and Procedures on Conflicts of Interest against Defendant Bell; (V)
Breach of Fiduciary Duty of Candor and Loyalty Against Defendant Bell; (VI)
Tortious Interference with Henkel’s Contractual Relationship with Bell against
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Defendant KCP; (VII) Aiding and Abetting Breach of Bell’s Employment
Agreement, Noncompete Provision, and Nondisclosure Provision with Henkel
against Defendant KCP; (VIII) Aiding and Abetting Bell’s Breach of His Fiduciary
Duty to Henkel against Defendant KCP; and, (IX) Unjust Enrichment by
Defendant Bell.
Discovery came to a close on July 30, 2018. (DE 22.)
B.

Instant Motion

Currently before the Court is Plaintiff’s July 26, 2018 motion to compel the
production of documents and the deposition of Craig Bell. (DE 25.) Defendants
filed a response, and Plaintiff filed a reply. In addition, the parties filed a joint
statement of resolved and unresolved issues. (See DEs 28-30, 32.)
Judge Lawson referred this motion to me, and a hearing was held on August
21, 2018, at which attorneys Shireen Anneke Barday and Jamie K. Warrow
appeared in my courtroom. (DE 26, 27.)
C.

Order

Upon consideration of the motion papers and oral argument of counsel, and
for all of the reasons stated on the record, which are incorporated by reference as
though fully restated herein:
Based upon representations made in the declarations attached to
Defendants’ response, Plaintiff’s reply, the joint statement of resolved and
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unresolved issues, and statements made at the hearing, Plaintiff’s motion to compel
(DE 25) is DENIED AS MOOT to the extent it seeks the production of
documents.
The motion is DENIED on the merits to the extent it seeks to again take the
deposition of Craig Bell or extend the time limit of his deposition beyond the 7
hours already expended on April 24, 2018 in Knight Capital Partners Corporation
v. Henkel AG & Company, KGaA, Case No. 2:16-cv-12022 (the related case a/k/a
“KCP Litigation”), as Plaintiff has not made “every reasonable effort to schedule
depositions so that witnesses whose testimony is relevant to both matters will be
deposed only once.” (DE 23 at 3 ¶ 3.) Among other things noted on the record:
(a) Plaintiff knew or should have known of the June 2015 email and attached draft
opinion letter (and of the need to seek unredacted versions and/or transmittal
documents of the same, e.g., emails to which they were attached) well prior to
Craig Bell’s April 24, 2018 deposition, because in May 2017 and October 2017,
Knight Capital Partners produced redacted versions of the June 2015 email and
attached draft opinion letter to Henkel KGaA in the “KCP Litigation” (see DE 28
at 11); (b) on April 30, 2018, Henkel KGaA produced to Knight Capital Partners
an unredacted copy of the June 10, 2018 Nona/Kupko communication and draft
opinion letter as part of a supplemental document production in the KCP Litigation
(Id.), based upon an April 6, 2018 telephone conference request made by the
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instant Plaintiff’s counsel to the instant defense counsel, who then asked Mr.
Kupko to search his personal emails (see DE 25-5), a request that Plaintiff could
have diligently made much earlier; and, (c) Plaintiff’s counsel admitted at the
hearing that the need to seek unredacted copies of the opinion letter was known in
the Winter of 2018, and certainly before Plaintiff chose to go forward with the Bell
deposition and expend all 7 hours of its allotted time as set forth in Fed. R. Civ. P.
30(d)(1). The Court further notes that, on February 23, 2018, Judge Lawson found
that “the proposal to allow the reuse of…document productions” from the KCP
Litigation in the instant matter “will be likely to serve the interests of justice and to
facilitate the just, speedy, and inexpensive resolution of these related cases[,]” and
thus ordered that, “[t]he parties may use documents produced in the KCP
Litigation in the [instant] Litigation.” (DE 23 at 3-4.) Plaintiff’s failure to do so is
a problem of its own making. Notably, no one sought a greater amount of
deposition time than 7 hours before the Bell testimony was taken, notwithstanding
the Court’s prior directives regarding discovery, and notwithstanding Plaintiff’s
pre-deposition awareness of the need to secure unredacted information.
Additionally, Plaintiff could have filed the instant, July 26, 2018 motion to compel
much earlier than it did, and could have asked this Court for relief in obtaining all
unredacted versions, related transmittal documents and drafts of the opinion letter
well before discovery was set to close; instead, Plaintiff did not do so until 4 days
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before the July 30, 2018 discovery deadline. The scheduling order in this case
makes clear that “[t]his Court will not order discovery to take place after the
discovery cutoff date.” (DE 22 at 2 ¶ E.)
Bearing mind Defendants’ helpful breakdown of the extensive topics
covered in Bell’s 7 hour deposition on April 24, 2018 (see DE 28 at 13-16) ̶
which satisfies the Court that a large part, if not the bulk, of the Bell deposition
was directed to discovery in the instant matter ̶ it seems apropos here to reiterate
a previous observation of this Court:
Indeed, it is not necessary to depose a person on every conceivable issue.
For hundreds of years, attorneys have cross-examined witnesses without the
benefit of a pretrial deposition, and have used their professional skills,
thinking on their feet, to cross-examine witnesses on the often surprising
information that comes out of their mouths on the stand.
Logan v. MGM Grand Detroit Casino, No. CV 16-10585, 2017 WL 896176, at *1
(E.D. Mich. Mar. 7, 2017) (Parker, J., adopting report and recommendation of
Patti, M.J.).
Finally, Defendants’ August 21, 2018 request for an award of expenses
under Fed. R. Civ. P. 37 is DENIED, as “the motion was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5)(B). Further, the motion was not denied in toto on the merits, one of the
two issues being denied as moot, based, at least in part, on events subsequent to its
filing.
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Dated: August 23, 2018

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on August 23, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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