PRECISION FABRICS GROUP, INC. v. TIETEX INTERNATIONAL, LTD.
Filing
90
MEMORANDUM OPINION AND ORDER. Signed by MAG/JUDGE L. PATRICK AULD on 8/10/2015, that Plaintiff's Motion to Compel (Docket Entry 60 ) is DENIED IN PART AS MOOT, in that, Plaintiff has shown no entitlement to an order compelling further d iscovery from Defendant. FURTHER that, on or before August 24, 2015, Plaintiff either 1) shall file a Notice with the Court renouncing any expense-shifting; or 2) shall serve Defendant with a statement setting out the reasonable expenses, inc luding attorney's fees, Plaintiff incurred in making the instant Motion. Failure by Plaintiff to comply with this Order will result in denial of any expense-shifting. FURTHER that, if Plaintiff timely serves such a statement of reasonable expenses, Defendant shall file, on or before September 8, 2015, 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 ten pages setting out Defendant's argument as to why the Court should not require Defendant and/or its counsel to pay such expenses (including any argument challenging the reasonableness of such expenses), along with a certification that, since the date of this Order, Defendant has attempted to confer in good faith with Plaintiff about resolution of the issue of expense-shifting. 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 contain ed in the statement served upon Defendant, the payment of such expenses by Defendant. FURTHER that, on or before September 29, 2015, Plaintiff shall file a Response of no more than ten pages to any Memorandum timely filed by Defendant. Failure by Plaintiff to comply with this Order will result in denial of any expense-shifting. FURTHER that, on or before October 6, 2015, Defendant may file a Reply of no more than five pages to any Response timely filed by Plaintiff. 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.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PRECISION FABRICS GROUP, INC.,
Plaintiff,
v.
TIETEX INTERNATIONAL, LTD.,
Defendant.
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1:13CV645
1:14CV650
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion to
Compel.
(Docket Entry 60.)1
For the reasons that follow, the
Court will deny in part as moot Plaintiff’s instant Motion and will
order the Parties to engage in additional briefing on the issue of
expense-shifting.
BACKGROUND
Plaintiff’s
Amended
Complaint alleges
that
Defendant has
infringed two of its patents for thermally protective, flameretardant fabrics.
(Docket Entry 29 at 2-6.)
On August 19, 2014,
Plaintiff served on Defendant its Second Set of Requests to Produce
Documents, due on September 22, 2014.
13.)
(Docket Entry 62-1 at 2,
At Defendant’s request, Plaintiff agreed to extend the
deadline 30 days, to October 22, 2014.
(Docket Entry 62-3 at 2.)
As that deadline approached, Defendant communicated to Plaintiff
1
All references to docket entries in this Opinion refer to
those entries as numbered in case 1:13CV645.
its
difficulties
in
meeting
the
deadline,
apparently did not agree to any extensions.
6.)
but
the
Parties
(Docket Entry 61 at 3-
Defendant then started a rolling production of documents on
November
14,
2014;
however,
Defendant
production until December 15, 2014.
did
not
complete
its
(Id. at 6; Docket Entry 62-2
at 43.)
In responding to Plaintiff’s document requests, Defendant
objected to producing any documents from dates prior to August 2013
(the issuance date for one of Plaintiff’s patents) (see, e.g.,
Docket Entry 62-2 at 4-5 (“[Defendant] also objects to the lack of
a
time
period
limitation
on
the
request
as
the
issues
of
infringement possibly related to [Defendant’s] products could only
have occurred after issuance of the ‘639 patent on August 6,
2013.”))
and,
further,
asserted
that
its
production
remained
subject to Defendant’s own determinations of relevance (not just
responsiveness) based on unidentified criteria beyond time period
(see, e.g., id. at 9 (“[Defendant] will produce relevant and
responsive documents within its possession sufficient to show, in
[Defendant’s] opinion, the requested information . . . .” (emphasis
added))).
Plaintiff then began reviewing Defendant’s production,
but did not complete that review until April 2015.
(Docket Entry
61 at 6-7; Docket Entry 70 at 2-3.)
On
April
14,
2015,
Plaintiff
wrote
Defendant
concerning
apparent deficiencies in Defendant’s production. (Docket Entry 62-
-2-
10.)
In its letter, Plaintiff noted that Defendant, rather than
perform a thorough confidentiality review (pursuant to the Parties’
Joint Protective Order (see Docket Entry 14 at 3)), had apparently
designated all documents as “Confidential-Attorneys’ Eyes Only.”
(Docket Entry 62-10 at 1.)
Moreover, Defendant had apparently
included a large number of irrelevant documents, such as television
schedules
and
an
entire
novel,
all
of
which
Confidential-Attorney’s Eyes Only designation.
Docket
Entry
72-7
(Plaintiff’s
list
of
carried
the
(See id.; see also
irrelevant
documents
produced by Defendant).) Plaintiff further demanded that Defendant
produce all documents responsive to its requests, in particular
those dated prior to the issuance of the ‘639 patent in August
2013.
(Docket Entry 62-10 at 2-4.)
The Parties met and conferred shortly thereafter and, further,
exchanged emails over the following three weeks, but failed to come
to an agreement.
3-5.)
(See Docket Entry 61 at 7-8; Docket Entry 70 at
Plaintiff then moved to compel as to its document requests
numbered 9-21, 25, and 27-36, on May 7, 2015.
9.)
(Docket Entry 61 at
Defendant responded (Docket Entry 70) and Plaintiff replied
(Docket Entry 71).
With the Court’s permission (see Text Orders
dated June 24, 2015, and July 23, 2015) Defendant filed a Sur-Reply
(Docket Entry 78) and Plaintiff filed a Sur-Rebuttal (Docket Entry
85).
Fact discovery in this case closed on June 1, 2015.
Text Order dated Dec. 15, 2014.)
-3-
(See
DISCUSSION
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26 advisory committee’s note, 1983 amend.
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.”).
Consistent with the foregoing principles, 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.”
Carefirst of Md., Inc. v. Carefirst
Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003). District
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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
discovery, bears the burden of persuasion.
moving
to
compel
See Kinetic Concepts,
Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243–44 (M.D.N.C. 2010)
(citing cases).
A.
Plaintiff’s Motion to Compel
Here, shortly after Plaintiff filed its instant Motion (on May
18, 2015), Defendant agreed to withdraw its date-based objections
and produce documents going back to 2002.
2.)
(Docket Entry 70-2 at
Defendant further informed Plaintiff: “As you probably saw in
your review of [Defendant’s] documents, we actually did produce
documents going back to 2002, to the extent the documents exist,
for all but 4 of the R[equests] [for] P[roduction].”
(Id.)
Moreover, Defendant agreed to supplement its production as to those
four
identified
requests
for
production
(id.),
and
Defendant
actually did produce four additional documents responsive to those
requests on May 22, 2015 (Docket Entry 72-5 at 2).
Based on the
foregoing,
Defendant
“the
relief
[Plaintiff]
requests
mooted
because
takes
from
the
the
position
Court
has
that
been
[Defendant] has withdrawn its complained-of objections and has
supplemented its production in response to the disputed requests.”
(Docket Entry 70 at 1.)
-5-
Notwithstanding Defendant’s concessions, Plaintiff declines to
withdraw its instant Motion on two grounds.
First, Plaintiff
asserts that, “[a]lthough [Defendant’s] Amended Responses omit the
prior date-based objections, they restate numerous boilerplate
objections that make it impossible to determine what [Defendant]
has withheld based on its restated objections.”
at 3.)
(Docket Entry 71
However, Plaintiff has offered no support for the position
that Defendant maintains any objections to Plaintiff’s document
requests.
Contrary
to
Plaintiff’s
“restate[s]
numerous
boilerplate
statement
objections”
that
(id.
Defendant
at
3),
the
exhibits to which Plaintiff cites do not include any such restated
objections (see Docket Entry 71 at 3 (citing Docket Entries 72-4,
72-5)).
Instead,
it
appears
that
Defendant
has
waived
any
previously lodged objections, given the sworn declaration of its
President and Chief Operating Officer stating that “[Defendant] has
searched for and produced all documents that it found within its
possession that are responsive to Requests for Production 9–21, 25,
and 27–36 as set forth in the Second Set of Document Requests.”
(Docket Entry 78-2 at 17.)
Moreover, as Plaintiff has noted (see Docket Entry 61 at 6
n.3), Defendant has waived all objections to Plaintiff’s Second Set
of Requests to Produce Documents by failing to timely respond to
them, see Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005)
(“[I]mplicit within Rule 34 is the requirement that objections to
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document production requests must be stated with particularity in
a timely answer, and that a failure to do so may constitute a
waiver of grounds not properly raised, including privilege or work
product immunity, unless the court excuses this failure for good
cause shown.” (emphasis added)); Phillips v. Dallas Carriers Corp.,
133 F.R.D. 475, 477 (M.D.N.C. 1990) (Sharp, M.J.) (“It is well
settled that the failure to make a timely objection in response to
a Rule 34 request results in waiver.”).
Therefore, to the extent
that Defendant has continued to withhold any responsive documents
on the basis of objections previously lodged, the Court deems any
such objections waived and Defendant remains under the continuing
obligation to supplement its production pursuant to Federal Rule of
Civil Procedure 26(e)(1).
Plaintiff’s second basis for seeking an order compelling
discovery rests on its contention that Defendant, in spite of its
representations to the Court, has not produced all responsive
documents within its possession.
(See Docket Entry 71 at 3-4.) In
that regard, Plaintiff asserts:
Although
[Plaintiff]
ordinarily
would
accept
representations of counsel or a party that it had
produced all documents responsive to a particular request
or set of requests, [Plaintiff] cannot do so here. Based
on an analysis of [Defendant’s] document production, as
well as a review of [Defendant’s] responses to
[Plaintiff’s] Interrogatories, it does not appear that
[Defendant’s] representations are accurate.
(Id. at 4.)
statistical
In support of that assertion, Plaintiff offers a
analysis
of
Defendant’s
-7-
document
production
which
Plaintiff
contends
shows
that
Defendant
failed
to
produce
responsive documents relating to certain of its customers and
employees.
(See id. at 4-8.)
Plaintiff further alleges that
Defendant may have destroyed certain relevant documents at times
when it bore an obligation to preserve them.
(See Docket Entry 85
at 2-6.)
Although the circumstances of Defendant’s document production
raise suspicion as to the thoroughness of Defendant’s search for
relevant documents and its subsequent review of those documents,
they do not afford a basis for the Court to grant a motion to
compel.
“even
In that regard, this Court has adopted the position that
an
informed
suspicion
that
additional
non-privileged
documents exist (like that articulated by [Plaintiff]) cannot alone
support an order compelling production of documents.”
Kinetic
Concepts, 268 F.R.D. at 252; see also University of Kan. v. Sinks,
Civ. A. No. 06–2341–KHV–GLR, 2007 WL 869629, at *3 (D. Kan. Mar.
22, 2007) (unpublished) (“The Court cannot compel a party to
produce documents based solely on opposing speculation and belief
that responsive documents exist and that the producing party is
withholding them.
speculative
Plaintiffs have provided nothing more than
assertions
that
Defendants
documents.”).
-8-
must
have
responsive
Finally,
although
Plaintiff’s
allegations
as
to
certain
documents apparently missing from Defendant’s production - or as to
irregularities in that document production - might have some
relevance to allegations concerning evidence spoliation, they have
little bearing on a motion to compel.
See Kostic v. Texas A & M
Univ. at Commerce, No. 3:10CV2265–M, 2013 WL 3356263, at *1 (N.D.
Tex. July 3, 2013) (unpublished) (“Requests to compel production of
sought-after documents do not fit naturally with allegations that
documents that a party seeks have already been destroyed.”).
In sum, because Defendant no longer opposes producing the
documents which Plaintiff seeks in its instant Motion, the Court
must deny as moot the instant Motion to the extent it seeks an
order
compelling
Notwithstanding
further
the
document
foregoing,
production
from
Defendant remains
Defendant.
obligated
to
supplement its production should it locate additional responsive
documents.
B.
See Fed. R. Civ. P. 26(e)(1).
Expense-Shifting
However, the Federal Rules of Civil Procedure require the
Court to address the appropriateness of expense shifting, given
that
Defendant
waived
its
objections
and
documents after Plaintiff moved to compel.
Civ. P. 37(a)(5)(A).
produced
additional
See generally Fed. R.
In that regard:
If the motion [to compel] is granted — or if the
disclosure or requested discovery is provided after the
motion was filed — the [C]ourt must, after giving an
opportunity to be heard, require the party or deponent
-9-
whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.
Id. (emphasis added); 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))).
“But
the [C]ourt must not order this payment if: (i) the movant filed
the motion before attempting in good faith to obtain the disclosure
or discovery without court action; (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified;
or (iii) other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(a)(5)(A).
The Parties’ filings in connection with the instant Motion do
not address expense-shifting.
85.)
(See Docket Entries 61, 70, 71, 78,
Accordingly, the Court now will order the Parties to do so.
CONCLUSION
In
light
of
Defendant’s
post-motion
change
of
position,
Plaintiff has not established grounds under Federal Rule of Civil
Procedure 37 for an order compelling discovery; however, Plaintiff
may be entitled to expense-shifting under that Rule.
-10-
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
(Docket Entry 60) is DENIED IN PART AS MOOT, in that, Plaintiff has
shown no entitlement to an order compelling further discovery from
Defendant.
IT IS FURTHER ORDERED that, on or before August 24, 2015,
Plaintiff either 1) shall file a Notice with the Court renouncing
any expense-shifting; or 2) shall serve Defendant with a statement
setting out the reasonable expenses, including attorney’s fees,
Plaintiff incurred in making the instant Motion.
Failure by
Plaintiff to comply with this Order will result in denial of any
expense-shifting.
IT IS FURTHER ORDERED that, if Plaintiff timely serves such a
statement of reasonable expenses, Defendant shall file, on or
before September 8, 2015, 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 ten pages setting out Defendant’s
argument as to why the Court should not require Defendant and/or
its
counsel
to
pay
such
expenses
(including
any
argument
challenging the reasonableness of such expenses), along with a
certification that, since the date of this Order, Defendant has
attempted to confer in good faith with Plaintiff about resolution
of the issue of expense-shifting.
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
-11-
the statement served upon Defendant, the payment of such expenses
by Defendant.
IT IS FURTHER ORDERED that, on or before September 29, 2015,
Plaintiff shall file a Response of no more than ten pages to any
Memorandum timely filed by Defendant.
Failure by Plaintiff to
comply with this Order will result in denial of any expenseshifting.
IT IS FURTHER ORDERED that, on or before October 6, 2015,
Defendant may file a Reply of no more than five pages to any
Response timely filed by Plaintiff.
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
August 10, 2015
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