PREFERRED CAROLINAS REALTY, INC. v. AMERICAN HOME REALTY NETWORK, INC.

Filing 66

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 3/28/2014; that Defendant's Motion to Compel Written Discovery and 30(b)(6) Deposition (Docket Entry 42 ) is DENIED. FURTHER that, on or before April 4, 2014, Pl aintiff shall serve Defendant with a statement setting out the reasonable expenses, including attorney's fees, Plaintiff incurred in opposing the instant Motion. Failure by Plaintiff to comply with this order will result in denial of any cost-shifting. FURTHER that, if Plaintiff timely serves Defendant with a statement of its reasonable expenses, Defendant shall file, on or before April 18, 2014, either: 1) a Notice indicating its and/or its counsel's agreement to pay the claimed expenses; or 2) a Memorandum of no more than five pages explaining why Defendant contests the reasonableness of the claimed expenses, along with a certification that Defendant attempted in good faith to resolve any disagreement over the reasonableness of the claimed expenses. Failure by Defendant to comply with this order will result in the Court ordering, upon the filing of a Notice by Plaintiff of its reasonable expenses as contained in the statement it served upon Defen dant, the payment of such expenses by Defendant. FURTHER that, on or before April 25, 2014, Plaintiff shall file a Response of no more than five pages to any Memorandum timely filed by Defendant contesting the reasonableness of the clai med expenses. Failure by Plaintiff to comply with this order will result in denial of any expenses contested by Defendant as unreasonable. FURTHER that, on or before April 30, 2014, Defendant may file a Reply of no more than three pages to any Response timely filed by Plaintiff regarding the reasonableness of the claimed expenses. FURTHER that, upon completion of the foregoing briefing or the time for such briefing, the Clerk shall refer this matter back to the undersigned Magistrate Judge for further action. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PREFERRED CAROLINAS
REALTY, INC.,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AMERICAN HOME REALTY
NETWORK, INC.,
d/b/a NEIGHBORCITY.COM
Defendant.

1:13CV181

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Compel Written Discovery and 30(b)(6) Deposition.
42.)

(Docket Entry

For the reasons that follow, the Court will deny Defendant’s

instant Motion.
I.

BACKGROUND

Plaintiff filed this action on March 4, 2013, alleging that
Defendant

has

infringed

Plaintiff’s

copyrights

by

displaying

Plaintiff’s photographs on Defendant’s website. (Docket Entry 1 at
1.)

The adopted Rule 26(f) Report set the discovery deadline for

January 1, 2014.

(Text Order dated July 3, 2013.)

Defendant served its requests for production of documents on
September 25, 2013.
48 at 4.)

(Docket Entry 43 at 3; see also Docket Entry

On October 28, 2013, Plaintiff responded, agreeing to

produce some documents, but objecting to some of the requests.

(Docket

Entry

43

at

3;

see

also

Docket

Entry

48

at

5.)

Specifically, Plaintiff objected to Defendant’s second and eleventh
requests

for

particular

production

and

objected

as

overly

to

broad

Defendant’s

and

insufficiently

seventh,

twelfth,

thirteenth, and fourteenth requests for production as overly broad
and irrelevant to the claims and/or copyrighted works at issue.
(Docket Entry 48 at 7-12; see also Docket Entry 43-2 at 13-20
(Plaintiff’s Responses to Defendant’s Interrogatories and Requests
for Production of Documents).)

On November 25, 2013, Plaintiff

produced documents it previously had committed to make available.
(Docket Entry 43 at 3.)
On December 5, 2013, Defendant notified Plaintiff of its
intent to take a Rule 30(b)(6) deposition and provided a list of
topics.

(Id. at 3-4.)

Plaintiff produced Daniel Washington, its

Senior Vice President of Sales Support, as a Rule 30(b)(6) witness
and the Parties conducted the deposition on December 20, 2013.
(Id. at 4.)

At the deposition, according to Defendant, Mr.

Washington did not satisfactorily answer certain questions which
Defendant contends properly fit within the topics previously agreed
upon by the Parties.

(See id. at 14-19.)

Defendant filed the instant Motion to Compel on December 31,
2013.

(Docket Entry 42.)

(Docket Entry 48.)

Plaintiff responded in opposition.

Defendant replied.

(Docket Entry 59.)

Since

the close of discovery, Plaintiff has moved for summary judgment

-2-

(Docket Entry 49) and Defendant has moved for partial summary
judgment as to certain claims (Docket Entry 53).
Defendant’s

instant

Motion

contends

that

“Plaintiff

has

responded with meritless objections to numerous standard requests
for production from [Defendant] and has also refused to produce
documents pursuant to these requests . . . .”
1.)

(Docket Entry 43 at

It further argues that Mr. Washington, Plaintiff’s Rule

30(b)(6) witness, demonstrated a lack of preparation and ability to
answer questions sufficient to constitute a failure to appear.
(Id. at 1, 13.)
to

produce

Defendant thus seeks an order requiring Plaintiff

documents

responsive

to

the

requests to

which it

objected and to afford Defendant the opportunity to depose an
alternate Rule 30(b)(6) witness.

(Id. at 2.)

In opposition, Plaintiff contends that Defendant did not
timely file

its

instant

Motion

as

it relates

to

Defendant’s

requests for production and that Defendant did not properly meet
and confer with Plaintiff with respect to its request for an
additional Rule 30(b)(6) deposition. (Docket Entry 48 at 1-2.) On
the merits, Plaintiff asserts that Defendant’s document requests
did not comply with Federal Rule of Civil Procedure 34.
1.)

(Id. at

Plaintiff further argues that Defendant “has not identified

any properly noticed questions that [Plaintiff’s Rule 30(b)(6)]
designee could not answer . . . . [and Plaintiff] provided . . .

-3-

additional information [which] fills any gaps in the designee’s
original testimony.”

(Id. at 16.)
II.

DISCUSSION

“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26 advisory committee’s notes, 1983 Amendment.

Fed. R. Civ. P.

Accordingly, under

the Federal Rules of Civil Procedure, “[u]nless otherwise limited
by court order . . . [p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense . . . . ”

Fed. R. Civ. P. 26(b)(1) (emphasis added).

“Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of
admissible

evidence.”

1:02CV305,

2004

WL

Id.;

3249257,

see
at

also
*2

Elkins

(M.D.N.C.

v.

Broome,

Jan.

12,

No.

2004)

(unpublished) (“[R]elevancy at discovery is a far different matter
from relevancy at trial.

At discovery, relevancy is more properly

considered synonymous with ‘germane’ as opposed to competency or
admissibility.”); Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D.N.C.
1978) (“It is clear that what is relevant in discovery is different
from what is relevant at trial, in that the concept at the
discovery stage is much broader.”).
However,
imposed

by

“[a]ll

Rule

discovery

is

26(b)(2)(C).”

subject
Fed.

R.

to

the

Civ.

limitations

P.

Specifically, Rule 26(b)(2)(C) limits discovery where:

-4-

26(b)(1).

(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in
the action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving
the issues.
Fed. R. Civ. P. 26(b)(2)(C); see also Nicholas v. Wyndham Int’l,
Inc., 373 F.3d 537, 543 (4th Cir. 2004) (“Even assuming that this
information is relevant (in the broadest sense), the simple fact
that requested information is discoverable . . . does not mean that
discovery must be had.

On its own initiative or in response to a

motion for protective order under Rule 26(c), a district court may
limit [such discovery] . . . if it concludes that [a limitation in
Rule 26(b)(2)(C) applies].”).
Notwithstanding the foregoing limitations, the United States
Court

of

Appeals

for

the

Fourth

Circuit

has

declared

that

“[d]iscovery under the Federal Rules of Civil Procedure is broad in
scope and freely permitted.”
Pregnancy

Ctrs.,

Inc.,

334

Carefirst of Md., Inc. v. Carefirst
F.3d

390,

402

(4th

Cir.

2003).

Moreover, the commentary to the Rules indicates that “[a] variety
of types of information not directly pertinent to the incident in
suit could be relevant to the claims or defenses raised in a given

-5-

action.”

Fed. R. Civ. P. 26 advisory committee’s notes, 2000

Amendment,

Subdivision

(b)(1).

In

applying

the

foregoing

principles, district judges and magistrate judges in the Fourth
Circuit (including members of this Court) have repeatedly ruled
that the party or person resisting discovery, not the party moving
to compel discovery, bears the burden of persuasion.

See Kinetic

Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243–44 (M.D.N.C.
2010) (citing cases).
A.

Defendant’s Requests for Production of Documents
As an initial matter, Plaintiff asserts that Defendant’s

instant Motion, as it relates to the production of documents,
should be denied as untimely.

(Docket Entry 48 at 2-6.)

Neither

the Federal Rules of Civil Procedure nor this Court’s Local Rules
provide a specific timeframe in which a party must file a motion to
compel.

See Fed. R. Civ. P. 37(a); M.D.N.C. R. 37.1.

Although

some district courts in the Fourth Circuit require the filing of a
motion to compel within strict time limits, see, e.g., D. Md. R.
104(8)(a), this Court has not adopted such a requirement, as
Plaintiff admits (see Docket Entry 48 at 4).

The Court thus finds

unpersuasive Plaintiff’s reliance on a case from the District of
Maryland,

which

enforces

a

thirty-day

rule,

assertion of the instant Motion’s untimeliness.

-6-

to

support

its

(See id. at 3-4

(citing Blind Indus. & Servs. of Md. v. Route 40 Paintball Park,
2012 WL 4470273, No. WMN-11-3562, at *2 (D. Md. Sept. 26, 2012)
(unpublished)).)
In this Court, “[g]enerally, a party must file a motion to
compel before the close of discovery in order for that motion to be
deemed timely.”

Lane v. Lucent Techs., Inc., No. 1:04CV789, 2007

WL 2079879, at *3 (M.D.N.C. July 17, 2007) (Osteen, Sr., J.)
(unpublished); see also PCS Phosphate Co., Inc. v. Norfolk So.
Corp., 238 F.R.D. 555, 558 (E.D.N.C. 2006) (“Generally, absent a
specific directive in the scheduling order, motions to compel
discovery filed prior to the discovery deadline have been held
timely.”).

The

Court

finds

no

reason

to

deviate

from

that

precedent in this case and thus concludes that Defendant timely
filed its instant Motion.
However, with respect to Defendant’s second and eleventh
requests

for

production,

the

Court

concludes

that

Plaintiff

properly objected to these requests as insufficiently particular.
A party serving a request for production “must describe with
reasonable particularity each item or category of items to be
inspected.”

Fed.

R.

Civ.

P.

34(b)(1)(A).

To

satisfy

this

standard, such requests must “place the respondents on reasonable
notice of what is called for and what is not.”

Parsons v.

Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C. 1992). “Broad

-7-

and undirected requests for all documents which relate in any way
to the complaint are regularly stricken as too ambiguous.”

Id.

Accordingly, Defendant’s eleventh request for production,
which seeks “[a]ny and all documents that [Plaintiff] contend[s]
support any of [Plaintiff’s] claims against [Defendant] or are
relevant to any of [Defendant’s] defenses as set forth in its
Answer”

(Docket

reasonable

Entry

43-1

particularity

at

22),

standard,

fails
see,

to

meet

e.g.,

Rule

Kidwiler

34’s
v.

Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D. W. Va.
2000) (“[A] document request is not reasonably particular if it
merely requests documents ‘related to a claim or defense’ in the
litigation.” (quoting Parsons, 141 F.R.D. at 412)).
On its face, Defendant’s second request, which seeks “any and
all documents that support, refer to, relate to, or evidence any of
the facts identified by you in your responses to [Defendant’s]
Interrogatories served concurrently herewith” (Docket Entry 43-1 at
20), appears more specific than its eleventh request.

However,

Plaintiff contends that, due to the numerous facts contained in its
responses and the similarly high volume of documents that might
relate to any given fact, this request “would encompass many
documents that have nothing to do with the copyright claims at
issue.”

(Docket Entry 48 at 8.)

In support of its contention,

Plaintiff notes that, for instance, as to the fact “that it
operates under several assumed names” it might have to “produce all

-8-

emails containing an assumed name.”

(Id.)

Plaintiff identified

ten such assumed names (Docket Entry 43-2 at 10), suggesting that
requiring Plaintiff to produce all documents which refer or relate
to one of these ten names would impose an unreasonable burden,
simply to comply with Defendant’s second request as it relates to
one of seventeen interrogatories.
Defendant counters that its “request[] for information that
supports the answers that [Plaintiff] gave in its interrogatories
. . . . is not an unreasonable request.”

(Docket Entry 43 at 6.)

In this regard, Defendant mischaracterizes its own request, which
seeks not only documents that support Plaintiff’s interrogatory
answers, but also those that refer or relate to facts identified.
(Docket Entry 43-1 at 20; see also Smith v. Café Asia, 256 F.R.D.
247, 255 (D.D.C. 2009) (finding not overly burdensome party’s
request for identification of “all documents on which it relied in
support of the answer to that interrogatory” where party did not
seek

identification

interrogatory”).)

of

“all

documents

which

relate

to

the

Under these circumstances, the Court concludes

that Defendant’s second request for production does not meet Rule
34’s reasonable particularity standard.
Defendant’s

remaining

requests

for

production

apparently

concern its copyright misuse defense, under which it has alleged
that “[Plaintiff] has been engaged in a planned, coordinated, and
illegal attempt to misuse copyrights on photographs to prevent

-9-

competition in violation of the Clayton Act and public policy”
(Docket Entry 43 at 10).

Its seventh request seeks “all of

[Plaintiff’s] End User License Agreements with any MLS entity,
including

but

not

limited

to

the

End

User

License

by

which

[Plaintiff] allegedly licenses its copyrights in the photographs to
Carolina MLS.”

(Docket Entry 43-1 at 21.)

In response, Plaintiff

agreed to produce such agreements relating to the photographs in
dispute, but otherwise objected to the request as “overly broad,
unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence.”

(Docket Entry 43-2 at 16.)

However, Defendant’s instant Motion contends that it needs all such
agreements as “important evidence of Plaintiff’s intent to maintain
a monopoly with various multiple listing services and exclude
competition.”

(Docket Entry 43 at 7.)

Similarly, Defendant’s twelfth, thirteenth, and fourteenth
requests seek “any and all documents comprising or relating to
[Plaintiff’s] communications with [the National Association of
Realtors, American Home Services of America, Inc., and third
parties] regarding

[Plaintiff’s]

copyrights

or

this

lawsuit.”

(Docket Entry 43-1 at 23.)

Again, Plaintiff objected to each of

these

broad,

requests

as

“overly

unduly

burdensome,

and

not

reasonably calculated to lead to the discovery of admissible

-10-

evidence” (Docket Entry 43-2 at 18-19) and Defendant’s instant
Motion describes the requests as “highly relevant to [Defendant’s]
defense of copyright misuse” (Docket Entry 43 at 8).
Defendant “believes that [Plaintiff] is misusing copyrights in
concert with others to prevent competition in the real estate
market.”

(Docket Entry 59 at 7.)

Further, Defendant cites to the

Fourth Circuit’s opinion in Lasercomb America, Inc. v. Reynolds,
911 F.2d 970 (4th Cir. 1990), to support the relevance of its
document requests in relation to its asserted copyright misuse
defense.
that

(See Docket Entry 43 at 8; Docket Entry 59 at 7.)

case,

the

alleged

infringer

successfully

In

challenged

the

rightholder’s licensing agreement as copyright misuse, because it
included a 99-year non-compete clause as a condition of licensing
the copyrighted works.

See Lasercomb, 911 F.2d at 978.

In

contrast, Defendant’s instant filings allege a “conspiracy with
various MLSs and brokers . . . . [to] sue[] [Defendant] in multiple
federal districts.”

(Docket Entry 59 at 5-6.)

Similarly, in

raising the copyright misuse defense in response to Plaintiff’s
Second

Motion

for

Summary

Judgment,

Defendant

cites

only

to

Lasercomb and claims the defense applies because “[Plaintiff’s]
attempt to enforce its alleged copyrights is being done in concert
with other brokers and MLSs . . . .”

(Docket Entry 63 at 8-9.)

However, when Defendant recently raised the same argument
before

another

court,

it

concluded

-11-

that,

“[e]ven

if

.

.

.

[Plaintiff] was collectively enforcing its copyrights with other
MLSs,

that

Metropolitan

would

not,

Reg’l

alone,

Info.

Sys.,

amount
Inc.

v.

to

copyright

American

misuse.”

Home

Network, Inc., 888 F. Supp. 2d. 691, 711-12 (D. Md. 2012).

Realty
Other

district courts have similarly concluded that such actions to
enforce copyrights do not constitute misuse and have taken steps to
prevent burdensome discovery concerning antitrust issues on that
basis.

See UMG Recordings, Inc. v. Lindor, 531 F. Supp. 2d 453,

459 (E.D.N.Y. 2007) (citing Basic Books, Inc. v. Kinko’s Graphics
Corp., 758 F. Supp. 1522, 1538-39 (S.D.N.Y.), for proposition that
“collective

action

to

enforce

copyrights

did

not

amount

to

copyright misuse” and granting motion to strike copyright misuse
defense because “allowing discovery to proceed on defendant’s
antitrust theory would prejudice plaintiffs”); Microsoft Corp. v.
Computer Support Servs. of Carolina, Inc., 123 F. Supp. 2d 945,
955-56

(W.D.N.C.

2000)

(finding

Lasercomb

inapplicable

where

defendants made only “vague allegations” that plaintiff’s efforts
to enforce its copyrights amounted to misuse and granting motion to
strike copyright misuse defense); Everco Indus., Inc. v. O.E.M.
Prods. Co., 362 F. Supp. 204, 206 (N.D. Ill. 1973) (finding that
defendant’s request in copyright suit for “all contracts and
communications between [p]laintiff and certain other companies is
not a properly defined request for production” to support unfair

-12-

competition defense and sustaining plaintiff’s objections); see
also

Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

558

(2007)

(“[P]roceeding to antitrust discovery can be expensive.”).
The

Court

substantial

thus

concludes

unwarranted

burden

that
in

Plaintiff
responding

would
to

face

a

Defendant’s

seventh, twelfth, thirteenth, and fourteenth requests.

In that

regard, the Court further notes that Defendant has not limited
these requests for production as to a timeframe for which it seeks
relevant documents, see, e.g., Motton v. Owens, 128 F.R.D. 72, 73
(M.D. Pa. 1989) (“[Party’s] failure to limit his production request
to relevant time period made his request overbroad and unduly
burdensome.”),

and

that

Defendant’s

fourteenth

request

seeks

communications with any third parties regarding copyrights or the
instant

suit

(see

Docket

Entry

43-1

at

23).

Simply

put,

Defendant’s requests do not appear “reasonably calculated to lead
to the discovery of admissible evidence,” Fed. R. Civ. P. 26(b)(1).
Alternately, assuming the relevancy of Defendant’s requests, “the
burden [and] expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case . . . and the importance
of the discovery in resolving the issues.”

Fed. R. Civ. P.

26(b)(2)(C)(iii).1

1

Defendant also asserts that Plaintiff’s objections to its
discovery requests constitute boilerplate objections and the Court
should disregard them on that basis. (See Docket Entry 43 at 8-10
(citing Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364
(D. Md. 2008) (“[M]erely stating that a discovery request is
-13-

B.

Defendant’s Request for an Additional Rule 30(b)(6) Deposition
As an initial matter, Plaintiff contends that Defendant did

not properly meet and confer as to the request for an additional
deposition of a Rule 30(b)(6) witness, as required by the Federal
Rules of Civil Procedure and this Court’s Local Rules.
Entry 48 at 15.)

(Docket

In that regard, Plaintiff notes that when the

Parties met and conferred regarding an additional deposition,
Defendant requested to depose two specific individuals, but now
Defendant

requests,

pursuant

‘witness’

appear

who

matters.”

(Id.)

This Court’s Local Rules require that “moving

is

to

Rule

30(b)(6),

knowledgeable

about

“only
the

that

a

identified

counsel file[] a certificate that after personal consultation and
diligent attempts to resolve differences the parties are unable to
reach an accord.”

M.D.N.C. R. 37.1(a).

Although Defendant may

have worded its request differently when the parties met and
conferred than it has in its instant Motion, the Court does not
find that Defendant has failed to “make diligent attempts to
resolve differences.” Id. Furthermore, Defendant’s second request
appears more modest than its first; initially, Defendant demanded
two depositions of specific individuals as opposed to its instant

‘overbroad’ or ‘unduly burdensome’ will not suffice to state a
proper objection.”)).)
However, the Court does not find that
Plaintiff has made boilerplate objections as Defendant has alleged.
Although Plaintiff has repeated certain key terms in several of its
responses, it has also explained its reasoning in objecting to each
request. (See Docket Entry 43-2 at 13-20.)
-14-

request for one deposition of an individual selected by Plaintiff.
Under these circumstances, the Court concludes that Defendant has
met its obligation to meet and confer under Local Rule 37.1(a).
Nonetheless, the Court does not find that Mr. Washington’s
inability to answer certain questions at his deposition provides
adequate

grounds

for

30(b)(6) witness.

Defendant

to

depose

an

additional

Rule

Rule 30(b)(6) “‘requires a good faith effort

. . . to find out the relevant facts - to collect information,
review

documents,

knowledge.’”

and

interview

employees

with

personal

Dorsey v. TGT Consulting, LLC, 888 F. Supp. 2d 670,

685 (D. Md. 2012) (quoting Wilson v. Lakner, 228 F.R.D. 524, 528-29
(D. Md. 2005)). However, “[a]bsolute perfection is not required of
a 30(b)(6) witness. The mere fact that a designee could not answer
every question on a certain topic does not necessarily mean that a
corporation has failed to comply with its obligation.”

QBE Ins.

Corp. v. Jorda Enters., 277 F.R.D. 676, 691 (S.D. Fla. 2012); see
also Briese Lichttechnik Vertriebs GmbH v. Langton, 272 F.R.D. 369,
375 (S.D.N.Y.

2011)

(finding

that

existence

of “a

number

of

questions to which [Rule 30(b)(6)] witnesses responded that they
did not know the answer” failed to merit additional deposition
where witnesses appeared otherwise adequately prepared).
Defendant contends that Mr. Washington lacked preparation to
adequately answer questions relating to: (1) the process involved
in Plaintiff’s determination that certain photographs did not

-15-

constitute

works

for

hire;

(2)

the

content

of

two

sworn

declarations of Plaintiff’s President; and (3) the authorship of
one of twenty photos taken of one of the subject properties.
(Docket Entry 43 at 14-18.)

A review of the deposition transcript

indicates that, as to the first two matters, Defendant’s lines of
inquiry stalled not principally because of lack of preparation by
Mr. Washington, but rather because Plaintiff’s counsel perceived
them as impinging upon attorney-client confidences.
Entry 43-7 at 86-88, 120-22.)
Plaintiff’s

counsel

(See Docket

Further, as to the third matter,

subsequently

provided

Defendant

with

the

relevant information, as Defendant admits. (See Docket Entry 43 at
18-19.)2

Under these circumstances, Defendant has failed to show

a lack of good faith effort by Mr. Washington warranting an
additional Rule 30(b)(6) deposition.
Defendant

cites

multiple

cases

for

the

proposition

that

“producing an unprepared Rule 30(b)(6) witness is tantamount to
failure to appear.” (Docket Entry 43 at 13.)

However, these cases

involved extreme obfuscation and unpreparedness not reflected by
the record in the instant case.

See, e.g., Resolution Trust Corp.

v. Southern Union Co., Inc., 985 F.2d 196, 197 (ruling that
district court properly granted motion for sanctions where two

2

Mr. Washington’s errata sheet also clarified that
Plaintiff’s counsel made the determination regarding the status of
certain photographs as works for hire. (See Docket Entry 43-7 at
87; Docket Entry 48-4 at 2.)
-16-

witnesses “possessed no knowledge relevant to the subject matters
identified in the Rule 30(b)(6) notice”); Universal Furniture
Int’l, Inc. v. Collezione Europa, USA, Inc., 599 F. Supp. 2d 648,
653-55 (M.D.N.C. 2009) (Osteen, Jr., J.) (holding that party did
not satisfy Rule 30(b)(6) obligations where it failed to produce
information

directly

relevant

to

calculation

of

damages

and

specifically referenced in deposition notice and, further, failed
to produce it upon subsequent court order).3

Accordingly, the

Court declines to order an additional Rule 30(b)(6) deposition of
Plaintiff.
C.

Cost-Shifting
Because the Court has denied Defendant’s Motion to Compel, it

“must, after giving an opportunity to be heard, require the movant,
the attorney filing the motion, or both to pay the party or
deponent who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees.”

Fed. R. Civ. P.

37(a)(5)(B); see also Biovail Corp. v. Mylan Labs., Inc., 217
F.R.D. 380, 382 (N.D. W. Va. 2003) (“‘The great operative principle
of [Rule 37] is that the loser pays.’” (quoting Rickels v. City of
South Bend, 33 F.3d 785, 786 (7th Cir. 1994))).

3

“But the [C]ourt

Defendant cites for this same proposition a third case,
which discussed hypothetical misconduct by a Rule 30(b)(6) witness
who strategically feigns ignorance at a deposition only to have the
corporation claim knowledge of the same subject matter at trial.
(See Docket Entry 43 at 13 (citing United States v. Taylor, 166
F.R.D. 356, 363 (M.D.N.C. 1996).)
-17-

must not

order

this

payment

if the

motion

was

substantially

justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(a)(5)(B).
Plaintiff’s Response to the instant Motion requested costshifting (Docket

Entry

48

at

19)

and

Defendant

presented

no

argument responsive to that issue in its Reply (see Docket Entry 59
at 1-9).
have

had

Under these circumstances, the Court deems Defendant to
its

37(a)(5)(B).
concludes

that

“opportunity

to

be

heard,”

Fed.

R.

Civ.

P.

For the reasons stated above, the Court further
Defendant’s

instant

Motion

lacked

substantial

justification and that nothing renders cost-shifting unjust in this
case.

Accordingly, the Court will order Defendant and/or its

counsel to pay the reasonable expenses, including attorney’s fees,
incurred by Plaintiff in opposing the instant Motion.
III.

CONCLUSION

Defendant has failed to establish grounds for relief under
Federal Rule of Civil Procedure 37.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
Written Discovery and 30(b)(6) Deposition (Docket Entry 42) is
DENIED.
IT IS FURTHER ORDERED that, on or before April 4, 2014,
Plaintiff shall serve Defendant with a statement setting out the

-18-

reasonable expenses, including attorney’s fees, Plaintiff incurred
in opposing the instant Motion.

Failure by Plaintiff to comply

with this order will result in denial of any cost-shifting.
IT

IS

FURTHER

ORDERED

that,

if

Plaintiff

timely

serves

Defendant with a statement of its reasonable expenses, Defendant
shall file, on or before April 18, 2014, either: 1) a Notice
indicating its and/or its counsel’s agreement to pay the claimed
expenses; or 2) a Memorandum of no more than five pages explaining
why Defendant contests the reasonableness of the claimed expenses,
along with a certification that Defendant attempted in good faith
to resolve any disagreement over the reasonableness of the claimed
expenses.

Failure by Defendant to comply with this order will

result in the Court ordering, upon the filing of a Notice by
Plaintiff of its reasonable expenses as contained in the statement
it

served

upon

Defendant,

the

payment

of

such

expenses

by

Defendant.
IT IS FURTHER ORDERED that, on or before April 25, 2014,
Plaintiff

shall file a Response of no more than five pages to any

Memorandum timely filed by Defendant contesting the reasonableness
of the claimed expenses.

Failure by Plaintiff to comply with this

order will result in denial of any expenses contested by Defendant
as unreasonable.

-19-

IT IS FURTHER ORDERED that, on or before April 30, 2014,
Defendant may file a Reply of no more than three pages to any
Response timely filed by Plaintiff regarding the reasonableness of
the claimed expenses.
IT IS FURTHER ORDERED that, upon completion of the foregoing
briefing or the time for such briefing, the Clerk shall refer this
matter back to the undersigned Magistrate Judge for further action.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 28, 2014

-20-