Nutreance LLC et al v. Primark, LLC et al

Filing 135

MEMORANDUM AND ORDER: Therefore, IT IS ORDERED that Defendants shall produce all non-privileged documents responsive to Plaintiffs' first set of requests for production in Defendant's possession, custody, or control, and not previously produced, within fifteen (15) days of the date of this Order. (SEE ORDER FOR DETAILS). Signed by District Judge Stephen R. Clark on 10/21/19. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NUTREANCE, LLC, et al.,
Plaintiff(s),
vs.
PRIMARK LLC, et al.,
Defendant(s).

)
)
)
)
)
)
)
)
)

Case No. 4:18-cv-00098-SRC

MEMORANDUM AND ORDER
This matter is before the Court for resolution of a discovery dispute, as set forth in
Plaintiffs’ Third Motion to Overrule Objections and Compel Answers to Plaintiffs’ Discovery
Requests [120] and Plaintiffs’ Request for Telephone Conference [122]. 1 The Court has
reviewed the written submissions of the Parties, and heard from the Parties on this issue at the
status conference held on October 10, 2019. The Court GRANTS in part and DENIES in part
Plaintiffs’ Motion, as set forth in greater detail below.
I.

Background
Plaintiffs first raised concerns regarding Defendants’ discovery responses to this Court

more than a year ago, on August 24, 2018, when Plaintiffs filed their first Motion to Compel and
Overrule Discovery Objections. Doc. 56. That Motion to Compel raises issues remarkably
similar to the issues before the Court now. Then—as now—Plaintiffs argued that Defendants’

1 The Court previously denied Plaintiffs’ Third Motion to Overrule Objections and Compel Answers to Plaintiffs’
Discovery Requests, Doc. 120, without prejudice for failure to comply with this Court’s Judge’s Requirements.
Plaintiffs’ subsequent Request for a Telephone Conference, Doc. 122, renewed the same concerns addressed in Doc.
120, and in a form that complied with the Court’s Judge’s Requirements. Accordingly, the Court heard from the
Parties on this discovery dispute at the status conference held on October 10, 2019 and the issue is now ripe for
decision. In this Memorandum and Order, the Court refers to Doc. 122 as the “Third Motion to Compel.”

−1−

document productions are inadequate, and that Defendants’ responses to interrogatories are
evasive and incomplete. Doc. 58. The Court denied Plaintiffs’ first Motion to Compel without
prejudice, expressing “[confidence] that the parties [could] discuss and resolve their discovery
disputes without Court intervention.” Doc. 70. Yet just weeks later the Parties’ discovery
disputes were once again before this Court when Plaintiffs’ filed their Second Motion to Compel.
Doc. 72. Plaintiffs’ Second Motion to Compel reiterated many of the same complaints raised in
the first motion. This time the Court partially granted Plaintiffs’ motion to compel, ordering
Defendants to “produce all non-privileged requests for production” and giving Plaintiffs leave to
serve additional interrogatories. Doc. 109. That should have been the end of it.
Now before the Court is Plaintiffs’ Third Motion to Compel, which describes a litany of
alleged deficiencies in Defendants’ discovery responses. Plaintiffs’ Motion essentially raises
the following: 1) Defendants still fail to produce all non-privileged documents responsive to
Plaintiffs’ requests for production; and 2) Defendants still give incomplete or evasive answers to
Plaintiffs’ interrogatories.
On October 10, 2019, the Court held a status conference and hearing to address the
persistent and ongoing discovery disputes in this case. Based upon its review of the record, and
the Parties’ representations to the Court at the status conference, the Court makes the following
findings:
II.

Defendants’ Failure to Produce Documents in their Possession, Custody, or Control
The Court finds that Defendants have failed to produce all non-privileged documents in

their possession, custody, or control that are responsive to Plaintiffs’ Requests for Production.
At the status conference, Defendants’ counsel acknowledged his own concerns as to whether his
clients have been fully forthcoming. Based on its review of the record and the statements of

−2−

Defendants’ counsel, the Court finds that Defendants have failed to produce responsive
documents that may be outside of the Defendants’ possession but are within Defendants’ custody
or control. See Fed. R. Civ. P. 34(a)(1).
At the status conference, the Court inquired on the distinction between Plaintiffs
requesting information from Order Dynamics via letters rogatory and Defendants not producing
the information. Defendants’ counsel responded by stating that his clients did not have to
produce the information that was not in their possession. Defendants’ counsel conceded that the
documents Plaintiffs obtained via letters rogatory to the Canadian corporation Order Dynamics
“would not be in Order Dynamics’ hands but for Order Dynamics’ relationship with [the
Defendants].” The Court finds that the Order Dynamics documents are in the custody or control
of Defendants and should have been produced.
III.

Defendants’ Failure to Adequately Investigate their Interrogatory Answers
The Court further finds that Defendants failed to complete a reasonable investigation

before submitting answers to Plaintiffs’ interrogatories. “[P]arties are under a duty to complete a
reasonable investigation when presented with the opposing party's interrogatories and document
requests.” 3M Innovative Properties Co. v. Tomar Elecs., No. CIV 05-756 MJD/AJB, 2006 WL
2670038, at *6 (D. Minn. Sept. 18, 2006); see also SPV-LS, LLC Transamerica Life Ins. Co. v.
Bergman, No. CV 14-4092, 2017 WL 899882, at *7 (D.S.D. Mar. 6, 2017) (a party “has a duty
to make reasonable investigations in order to answer interrogatories”); 8B C. Wright & A.
Miller, Federal Practice and Procedure: Civil § 2177 (3d ed.) (a party answering interrogatories
“will be required to provide facts available to it without undue labor and expense”). At the
status conference, Defendants’ counsel acknowledged that Defendant Danny O’Shea could have
consulted with representatives of 21 Century Web to learn the identities of individuals who

−3−

worked on the allegedly offending websites. Defendant’s counsel further acknowledged that
Mr. O’Shea—either directly or via the Defendant LLCs of which he is a principal—has a
contractual relationship with 21 Century Web. Considering the interrogatories at issue and
Defendants’ relationship with 21 Century Web, the Court finds that a minimally reasonable
investigation would have included a request for information from 21 Century Web, and that
Defendants failed to complete a reasonable investigation before serving their discovery
responses.
IV.

Counsel’s Failure to Make Reasonable Inquiry
Finally, the Court finds that counsel for Defendants, Mr. Jayson Sohi, did not complete

an inquiry reasonable under the circumstances before certifying to the Court the Defendants’
discovery responses. An attorney must conduct a “reasonable inquiry” before signing the
discovery responses of his client. Fed. R. Civ. P. 26(g)(1). As discussed above, Mr. Sohi
expressed concerns during the Status Conference regarding whether his clients were fully
forthcoming in their responses to Plaintiffs’ document requests. Mr. Sohi also conceded at the
status conference that he did not know whether the interrogatory answers he certified to this
Court were, in fact, complete. While the Court appreciates Mr. Sohi’s candor during the status
conference, this does not absolve counsel of his duty to conduct a reasonable inquiry before
certifying to this Court the discovery responses of his clients.
Mr. Sohi filed both a pleading, Doc. 117, and a declaration under penalty of perjury, Doc.
117-1, that the Court finds intentionally attempted to mislead the Court. Mr. Sohi represented to
the Court that “Defendants [] produced everything they had at their disposal[,]”, Doc. 117 at 9,
Defendants “provided all of the information at its [sic.] disposal[,]”, Doc. 117 at 15, and
Defendants produced “all available non-privileged materials and responses in good faith.” Doc.

−4−

117-1 at ¶ 3. At the status conference, Mr. Sohi conceded that these were “carefully chosen
words.” Counsel has a duty of candor to the Court. Mo. R. Prof. Conduct 4-3.3; E.D.Mo. L.R.
83-12.02. By attempting to mislead the Court, Mr. Sohi breached this duty.
V.

Sanctions
Although no motion for sanctions is pending, the Court has authority to address the issue

of sanctions on its own initiative. See Fed. R. Civ. P. 26(g)(3); 37(b)(2)(A); 11(c)(3). In light
of the Court’s extension of the discovery deadline and authorization of additional written
discovery as ordered at the status conference, the Court will hold in abeyance any ruling on
sanctions pending the Defendants’ full and timely compliance with the Court’s orders.
Therefore, IT IS ORDERED that Defendants shall produce all non-privileged
documents responsive to Plaintiffs’ first set of requests for production in Defendant’s possession,
custody, or control, and not previously produced, within fifteen (15) days of the date of this
Order.
IT IS FURTHER ORDERED that Plaintiffs are granted leave to serve additional
interrogatories, not to exceed ten (10), and additional requests for production upon Defendants.
Plaintiffs shall serve such additional interrogatories and requests for production no later than
October 21, 2019.
IT IS FURTHER ORDERED that, should Plaintiffs serve additional interrogatories or
requests for production upon Defendants, Defendants shall answer such interrogatories or
requests for production within fifteen (15) days of service.
IT IS FURTHER ORDERED that Defendants’ answers to Plaintiffs’ additional
interrogatories shall be made only after Defendants have completed reasonable investigation.

−5−

IT IS FINALLY ORDERED that Defendants must produce all non-privileged
documents responsive to Plaintiffs’ requests for production that are in Defendants’ possession,
custody, or control. Defendants must interpret the phrase “possession, custody, or control,” see
Fed. R. Civ. P. 34(a)(1), as expansively as permissible under the Federal Rules of Civil
Procedure and the law of this Circuit.

So Ordered this 21st day of October, 2019.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

−6−