2 Hounds Design, Inc. v. Brezinski et al
Filing
22
ORDER granting 12 Motion to Compel; denying without prejudice Defendants' request for sanctions; granting in part and denying in part 14 Motion for Protective Order. The parties shall file a proposed Protective Order, via cyberclerk, on or before November 15, 2013. Signed by Magistrate Judge David Keesler on 11/5/2013. (eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:13-CV-101-RJC-DCK
2 HOUNDS DESIGN, INC.,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JESSICA BREZINSKI, and
USA DOG SHOP, LLC,
Defendants.
ORDER
THIS MATTER IS BEFORE THE COURT on Defendants’ “Motion To Compel the
Production Of Documents And Answers To Interrogatories From Plaintiff And For Sanctions”
(Document No. 12); and “2 Hounds Design’s Motion for Protective Order” (Document No. 14).
These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b), and are now ripe for disposition. Having carefully considered the motions, the record,
and applicable authority, the undersigned will grant the motions in part and deny the motions in
part.
I.
BACKGROUND
Plaintiff 2 Hounds Design, Inc. (“Plaintiff”) filed its “Complaint for Declaratory
Judgment” (Document No. 1) initiating this lawsuit on February 19, 2013. Plaintiff’s Complaint
seeks “a declaration that certain actions taken by 2 Hounds Design, Inc. do not breach any terms
of the Patent, Trademark and Know-How Agreement between the parties.” (Document No. 1,
p.1).
“Defendants Jessica Brezinski And USA Dog Shop, LLC’s Answer, Defenses, And
Counterclaims To Plaintiff’s Complaint” (Document No. 8) was filed on March 29, 2013.
Defendants’ Answer asserts claims for: (1) breach of contract; (2) breach of duty of good faith
and fair dealing; (3) appropriation of name or likeness; (4) unfair or deceptive trade practices;
(5) trademark infringement; (6) false designation of origin and false advertising; (7) accounting;
(8) conversion; and (9) unjust enrichment. (Document No. 8, pp.15-24). Plaintiff filed its
“Reply to Counterclaims” (Document No. 9) on April 22, 2013.
Following the parties’ submission of a “Certification and Report of F.R.C.P. 26(f)
Conference and Discovery Plan” (Document No. 10) on May 1, 2013, the Court entered its
“Pretrial Order And Case Management Plan” (Document No. 11) on May 6, 2013.
Defendants’ “Motion To Compel the Production Of Documents And Answers To
Interrogatories From Plaintiff And For Sanctions” (Document No. 12) was filed on September
23, 2013; and “2 Hounds Design’s Motion for Protective Order” (Document No. 14) was filed on
September 29, 2013. The pending discovery motions have been fully briefed and are now ripe
for disposition. See (Document Nos. 13, 15, 16, 17, 18, and 19).
II. STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense including the
existence, description, nature, custody, condition, and location of
any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For
good cause, the court may order discovery of any matter relevant
to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence.
2
Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507
(1947). However, a “court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). A
motion for protective order “must include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in an effort to resolve the dispute
without court action.” Id.
Whether to grant or deny a motion to compel is generally left within a district court’s
broad discretion. See, Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,
929 (4th Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion);
Erdmann v. Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s
substantial discretion in resolving motions to compel); and LaRouche v. National Broadcasting
Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (same).
If the motion is granted – or if the disclosure or requested
discovery is provided after the motion was filed – the court must,
after giving an opportunity to be heard, require the party or
deponent 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.
Fed.R.Civ.P. 37(a)(5)(A); see also Fed.R.Civ.P. 26(c)(3). Likewise, if a motion is denied, the
Court may award reasonable expenses, including attorney’s fees, to the party opposing the
motion. Fed.R.Civ.P. 37(a)(5)(B).
III. DISCUSSION
A. Defendants’ Motion To Compel
3
Jessica Brezinski (“Brezinski”) and USA Dog Shop, LLC (“USA Dog”) (collectively,
“Defendants”) seek an Order compelling Plaintiff to respond to Defendants’ First Request for
Production of Documents dated June 19, 2013 (“Document Requests”), and to respond to
Defendants’ First Set Of Interrogatories dated June 19, 2013 (“Interrogatories”). (Document No.
12, p.1). Defendants also seek sanctions against Plaintiff for its alleged failure to comply with
basic discovery obligations. Id. Defendants contend that Plaintiff has failed to produce any
documents in this case to date, either with its initial disclosures, or in response to the Document
Requests.
(Document No. 13, p.1).
Defendants do not specifically identify which
Interrogatories Plaintiff has failed to adequately address.
According to Defendants, Plaintiff has objected to serving any documents or producing
adequate responses to the Interrogatories until the parties enter a protective order. (Document
No. 13, p.12). Defendants assert that Plaintiff is not entitled to a protective order, but concede
that they “were still willing to enter into a protective order.” (Document No. 13, pp.12-16;
Document No. 12-10, p.2); see also, (Document No. 18, p.5)(“Defendants Do Not Dispute that
the Court has the Power to Issue a Protective Order”). However, Defendant specifically objects
to Plaintiff’s proposal that a protective order include an attorney’s eyes only provision or a
provision allowing either party to object to disclosure to any consultant or expert. (Document
No. 13, p.15; Document No. 18, pp.5-8)).
Plaintiff’s “…Response In Opposition” focuses on its contention that a protective order is
required here. (Document No. 16). While Plaintiff makes a persuasive argument that some of
the information requested by Defendants should be treated as confidential and subject to a
protective order, Plaintiff fails to explain why it has not been able to produce any documents to
date. Id.
4
Under the circumstances, the Court finds that the Motion To Compel should be granted,
subject to the terms of an appropriate protective order, as discussed below.
B. Plaintiff’s Motion For Protective Order
“2 Hounds Design’s Motion for Protective Order” (Document No. 14) seeks the entry of
its proposed Protective Order (Document No. 15-5) as well as “an Order excusing 2 Hounds
from providing the information requested in interrogatory nos. 13 and 14, and request for
production nos. 30-40, and 48-50.” (Document No. 14, p.1). Plaintiff contends that such relief
is necessary because Defendants’ “discovery requests exceed the allowable scope of discovery
set forth in Rule 26(c) . . . and because a significant number of their requests that do not exceed
the allowable scope of discovery request proprietary information that should be limited to
viewing only by Brezinski and USA Dog Shop’s counsel.” (Document No. 14, pp.1-2).
1.
Protective Order
The undersigned finds there is little, if any, meaningful dispute that the discovery
requests in question involve confidential and proprietary information. Rather, Defendants seem
to argue that the parties “Patent, Trademark, And Know-How Agreement” (Document No. 1-1)
provides adequate protection. As noted above, however, it appears that Defendants are not
entirely opposed to the entry of a Protective Order. The crux of the current dispute is whether a
Protective Order in this case should include an attorneys’ eyes only provision, and whether one
party should be allowed to object to another party’s proposed experts, consultants, and/or their
employees. See (Document No. 15, pp.10-12; Document No. 15-5, p.9; Document No. 17,
p.17).
Plaintiff contends that a Protective Order “with an attorneys-eyes-only provision is
appropriate because Brezinski would be a direct competitor of 2 Hounds if she successfully
5
voided the licensing agreement, and much of the information Brezinski seeks would teach her
the proprietary operations of 2 Hounds.” (Document No. 15, p.10). Plaintiff further contends
that “only the production of records sufficient to establish the quantity of licensed products sold”
is necessary to establish that Plaintiff has met its obligations under the parties’ licensing
agreement.
(Document No. 15, pp.11-12).
Plaintiff asserts that an attorneys’ eyes only
provision would significantly reduce the number of discovery requests in dispute. (Document
No. 15, p.12). However, Plaintiff then asserts that “even with a protective order in place,” there
are sixteen (16) discovery requests it “should not be required to answer.” (Document No. 15,
pp.12-15).
In response, Defendants argue that this case is about more than Plaintiff’s payment of
royalties – namely, Plaintiff’s 100% compliance with the parties’ licensing agreement, as well as
other issues raised in its counterclaims, including whether Defendants have been treated
similarly to other wholesalers of Plaintiff. (Document No. 17, p.3). The undersigned agrees.
Moreover, Defendants persuasively argue that an attorneys’ eyes only provision is inappropriate
because Brezinski is in the best position to review Plaintiff’s discovery responses. (Document
No. 17, pp.17-19).
After careful review of the parties’ papers, including their proposed protective orders, the
undersigned is convinced that there is good cause for the entry of a Protective Order in this
lawsuit. Although clear and strict guidelines for the treatment of “Confidential” information are
appropriate, the undersigned is not persuaded that an attorneys’ eyes only provision is necessary.
Specifically, the Court does not find that Brezinski should be excluded from reviewing any
responses to Defendants’ discovery requests, unless those requests are otherwise restricted by the
Court. The undersigned will also decline to require the inclusion of the objection process to
6
experts and others as proposed by Plaintiff; however, the parties’ Protective Order may include
an attached Confidentiality Agreement to be executed by experts, and others, who might come in
contact with information deemed “Confidential.”
The undersigned directs the parties to jointly submit a proposed Protective Order, on or
before November 15, 2013, consistent with the foregoing findings.
2. Interrogatory Nos. 13-14, and Request for Production Nos. 30-40, 48-50.
In addition to seeking a general Protective Order, Plaintiff also seeks an order excusing it
from responding to specific discovery requests. (Document No. 15, pp.12-15). After careful
review of the parties’ papers, the undersigned directs the following:
a) Plaintiff shall fully respond to Interrogatory Nos. 13 and 14;
b) Plaintiff is excused from responding to Requests for Production Nos. 30-40;
c) Plaintiff shall fully respond to Requests for Production Nos. 48-50; and
d) Plaintiff shall supplement its responses to all Defendants’ other discovery requests as
appropriate.
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that Defendants’ “Motion To Compel the Production
Of Documents And Answers To Interrogatories From Plaintiff And For Sanctions” (Document
No. 12) is GRANTED, consistent with the undersigned’s directions herein.
IT IS FURTHER ORDERED that Defendants’ request for sanctions is DENIED
WITHOUT PREJUDICE. Defendants may renew their request for sanctions if Plaintiff fails to
participate in discovery as directed by this Order.
IT IS FURTHER ORDERED that “2 Hounds Design’s Motion for Protective Order”
(Document No. 14) is GRANTED in part, and DENIED in part, as described herein. The
7
parties shall file a proposed Protective Order, via cyberclerk, on or before November 15, 2013.
Plaintiff shall complete and serve its discovery responses as directed herein, within ten (10) days
of the entry of a Protective Order by the Court.
SO ORDERED.
Signed: November 5, 2013
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?