Baronius Press, Ltd. v. Saint Benedict Press, LLC

Filing 104

ORDER that the parties shall proceed with completing discovery and mediation in good faith, and in accordance with the Local Rules, the "Amended Case Management Order," the Federal Rules of Civil Procedure, and the directions provided herein. Signed by Magistrate Judge David Keesler on 2/26/19. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-CV-695-FDW-DCK
BARONIUS PRESS, LTD.,

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Plaintiff,
v.
SAINT BENEDICT PRESS, LLC,
Defendant.

ORDER

THIS MATTER IS BEFORE THE COURT regarding the parties’ request on February
18, 2019 – four (4) days before the discovery deadline – for a telephone conference pursuant to
the “Amended Case Management Order” (Document No. 88, pp. 3-4). The undersigned held a
telephone conference discussing the status of the case and discovery disputes on February 25,
2019. After careful consideration of the record of the case, written submissions by each side, and
the parties’ arguments during the telephone conference, the undersigned makes findings and
determinations below pursuant to the “Amended Case Management Order” (Document No. 88, p.
4) and the Federal Rules of Civil Procedure.
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 and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible
in evidence to be discoverable.

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).
DISCUSSION
First, the undersigned observes that on January 18, 2019, the discovery deadline in this
case was extended to February 22, 2019. (Document No. 102). On February 7, 2019, the parties
filed a “Joint Stipulation…” (Document No. 103) agreeing to extend the discovery completion
deadline to complete depositions and mediation.
As noted during the telephone conference, the undersigned is concerned in this case that
the scope and expense of discovery is not proportional to the needs of the case. See Fed.R.Civ.P.
26(b)(1). In addition, the undersigned notes that some of the issues raised here are not actual
“discovery disputes” that the process set forth in the “Amended Case Management Order” is
designed to address, and/or the issues are not timely raised in accordance with the “Amended Case
Management Order.” See (Document No. 88, pp. 3-4). The parties are required to seek a telephone
conference within fourteen (14) days of a discovery dispute arising. “This time limitation may
only be extended with leave of Court for good cause shown, and failure to timely submit to this
procedure will result in the objection being deemed waived.” (Document No. 88, p. 4, n.2). Based
on all the circumstances of this case, however, the undersigned provides the following guidance
and determinations.
1. Tom Healy
Defendant requests that the Court require Plaintiff to make Tom Healy available for a
deposition and to extend the discovery period for the limited purpose of such deposition. Although
Defendant first initiated requests to depose Tom Healy (“Healy”) over a year ago, Defendant again

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re-raised this request on or about February 5, 2019, after receiving additional discovery responses
in late January 2019. The relationship between Plaintiff and Healy remains unclear to the Court.
It appears he has been reported to be a representative of Plaintiff, an employee/manager, and/or a
volunteer. At best, Plaintiff has not been as precise and forthcoming about its relationship with
Tom Healy, and his availability in this lawsuit, as the Court would have preferred.
The undersigned is persuaded that Healy’s deposition testimony is relevant and
proportional to the needs of this case and that he should appear for a deposition as soon as possible.
Plaintiff is directed to provide Defendant with complete contact information for Healy and to
provide all reasonable assistance to locate and arrange for Tom Healy to appear for a deposition
in this matter. Discovery shall remain open for the purpose of this deposition, only, unless
otherwise stipulated by the parties or ordered by the Court.
2. Plaintiff’s 2018-2019 Communication with Publishers and Internal Communications
Defendant also seeks the production of 2018-2019 communications with other publishers,
including a French publisher, from whom Plaintiff claims to have recently obtained rights to eight
(8) books at issue in this case.

Plaintiff suggests that it has provided all responsive and

discoverable information in its possession.
The undersigned directs that Plaintiff’s counsel confer with Plaintiff and ensure that all
relevant, non-privileged information responsive to this request has been provided or make
appropriate supplementations by March 5, 2019.
3. “Wiped” ESI
Plaintiff first contends that Defendant has refused to restore or produce certain
electronically stored information (“ESI”) that it “wiped” from its computer/servers in 2014, at least

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two (2) years before this litigation began. Plaintiff seeks sanctions based on Defendant’s alleged
failure to preserve the ESI and/or to take reasonable steps to recover it.
The undersigned finds that Plaintiff’s request for sanctions is beyond the scope of this
discovery dispute resolution process and is likely untimely. As such, the Court will respectfully
decline Plaintiff’s request for relief at this time. This denial is without prejudice to Plaintiff filing
a motion, if appropriate.
4. Requests for Admission
Next, Plaintiff presents an argument that Defendant is maintaining inconsistent defenses
and presuming facts incompatible with its denial of Request for Admission (“RFA”) No. 1.
Plaintiff contends that Defendant should be estopped from maintaining any defense that is
inconsistent with its first denial, and therefore, the Court should be deem RFA Nos. 2-5; 8-10 as
admitted.
Again, the undersigned finds that Plaintiff’s request is well beyond the scope of the
discovery dispute resolution process identified in the “Amended Case Management Order.” See
(Document No. 88, pp. 3-4). It does not appear that this is even a discovery dispute. As such the
undersigned will respectfully decline the requested relief, without prejudice to Plaintiff seeking
such relief in an appropriate motion.
5. Production of Documents
Based on the undersigned’s conversation with the parties during the telephone conference,
it seems that what Plaintiff seeks in its next request is the production of information primarily
related to advertising in one or more books at issue in this case. If correctly understood, Plaintiff
is seeking document production addressing additional sales of books or other materials by
Defendant that might have resulted from advertisements in the underlying disputed publications.

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At this time, the undersigned is not persuaded that the information Plaintiff seeks is relevant
and proportional, or that the request has been timely raised. The undersigned will also deny this
request without prejudice. After the completion of imminent depositions and mediation, Plaintiff
may file a motion more fully explaining the information it seeks and the legal basis for its
request(s).
6. Documents Withheld In Anticipation of Litigation
Finally, Plaintiff seeks the production of all emails from J. Conor Gallagher, Defendant’s
publisher and associate general counsel.

Plaintiff suggests that Mr. Gallagher has been

inconsistent in explaining the withholding of certain documents.
The undersigned understands the confusion around this issue, but is not persuaded that
there is non-privileged information that must be produced.
CONCLUSION
IT IS, THEREFORE, ORDERED that the parties shall proceed with completing
discovery and mediation in good faith, and in accordance with the Local Rules, the “Amended
Case Management Order,” the Federal Rules of Civil Procedure, and the directions provided
herein.
SO ORDERED.

Signed: February 26, 2019

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