Panelli v. Kohl's Corporation et al

Filing 78

ORDER. IT IS HEREBY ORDERED that: 1. United States Magistrate Judge Tony N. Lueng's September 15, 2011 Order 72 is AFFIRMED. 2. Defendant's appeal of that order 74 is DENIED. (Written Opinion). Signed by Chief Judge Michael J. Davis on 11/8/11. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

HEIDI PANELLI,
d/b/a “PANELLI DESIGN,”
Plaintiff,
v.

ORDER
Civil File No. 10-3969 (MJD/TNL)

KOHL’S CORPORATION,
KOHL’S DEPARTMENT STORES, INC.,
KOHL’S ILLINOIS, INC.,
SEATTLE COTTON WORKS, LLC.,
Defendants.
Edward P. Sheu and Joseph J.W. Phelps, Best & Flanagan LLP, Counsel for
Plaintiff Heidi Panelli.
Robyn K. Johnson, Cousineau McGuire Chartered, Counsel for Defendants
Kohl’s Corporation, Kohl’s Department Stores, Inc., and Kohl’s Illinois, Inc.
Thomas F. DeVincke, Bonner & Borhart LLP, and Robyn K. Johnson, Cousineau
McGuire Chartered, Counsel for Defendant Seattle Cotton Works, LLC.
The above-entitled matter comes before the Court on Defendant Kohl’s
Department Stores, Inc.’s (“Kohl’s”) appeal of Magistrate Judge Tony N. Leung’s
September 15, 2011 Order granting in part Plaintiff’s Motion to Compel

1

Discovery (“Order”). [Docket No. 72.] The Court has carefully considered the
entire record in this matter and concludes that oral argument is unnecessary.
A District Court will reverse a Magistrate Judge’s order on a nondispositive

issue only if that order is clearly erroneous or contrary to law. 28 U.S.C. §
636(b)(1)(A); D. Minn. L.R. 72.2(a).
Kohl’s objects to part of the Order requiring Kohl’s to provide Plaintiff
Heidi Panelli with responses “to the topics contained in Document Request Nos.
22 through 24, 26, and 27 with all background accounting and financial data
provided to generate the relevant figures for [its] SEC filings.” The referenced
Document Requests relate to Kohl’s profits, expenses, and overhead with respect
to the alleged “Infringing Product” in this case—a t-shirt featuring the phrase “I
ROCK” along with a stick figure holding a guitar—and similar products sold by
Kohl’s and manufactured by Defendant Seattle Cotton Works, Inc.
Kohl’s asserts that the Order requires production of “all background and
financial data for all sales company wide for a five year period.” The plain
language of the Order, however, calls for production of a more limited set of
documents. Kohl’s must produce accounting and financial data relevant to the
profits generated by sales of the alleged Infringing Product or broader categories

2

of products if, as Kohl’s avers, specific information is unavailable. As noted in
the Memorandum that accompanied the Order, Kohl’s must “respond to
Plaintiff’s request for profits and costs, expenses, and overheard for the sale,
marketing, and advertising of the alleged Infringing Work with all background
accounting and financial data provided to generate the relevant figures for the
SEC filings.“ (Emphasis added.) The Order, in short, does not require Kohl’s to
divulge sales information about all of its products.
Kohl’s other objections to the Order are similarly unavailing. Its concerns
about protecting sensitive sales information are addressed by a protective order.
[Docket No. 23.] Kohl’s has also asserted that production of the figures
underlying its SEC filings would be improper because the Panelli did not request
such information. That argument is undermined by the fact that it was Kohl’s
itself that referred to the SEC filings in its responses to Panelli’s inquiries about
profits from sales of the alleged Infringing Product. As the Magistrate Judge
noted, “it is not sufficient for Kohl’s to generally refer Plaintiff to SEC financial
filings.”

3

Having examined the submissions and the record in this case, the Court
concludes that the Magistrate Judge’s Order is neither clearly erroneous nor
contrary to law.
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

United States Magistrate Judge Tony N. Lueng’s September 15, 2011
Order [Docket No. 72] is AFFIRMED.

2.

Defendant’s appeal of that order [Docket No. 74] is DENIED.

Dated: November 8, 2011

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

4