Wagner et al v. Circle W Mastiffs et al
Filing
153
ORDER granting in part and denying in part (139) Motion to Compel in case 2:08-cv-00431-GCS-TPK; granting in part and denying in part (125) Motion to Compel in case 2:09-cv-00172-GCS-TPK. Signed by Magistrate Judge Terence P Kemp on 11/28/12. (jcw1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Fredericka Wagner, et al.,
Plaintiffs,
v.
Case No. 2:08-cv-431
Circle W Mastiffs, et al.,
JUDGE SMITH
Magistrate Judge Kemp
Defendants.
Craig W. Williamson,
Plaintiff,
v.
Case No. 2:09-cv-0172
American Mastiff Breeders
Council, et al.,
JUDGE SMITH
Magistrate Judge Kemp
Defendants.
ORDER
These cases are before the Court for a ruling on the
Williamsons’ motion to compel discovery (#139).
The four issues
raised in the motion are disposed of as follows.
I.
CKCB Breeder Reports
Although there has been a good bit of back and forth about
these particular documents, the bottom line appears to be that
the plaintiffs have produced all such documents in their
possession.
Declarations to that effect are attached to the
memorandum in opposition.
The Williamsons complain in their
reply memorandum that the plaintiffs’ failure to make this known
prior to the filing of the motion to compel caused the
Williamsons to waste their time addressing the issue in their
motion, and there is some merit to that complaint.
However, they
ask the Court to rule that these documents are relevant and not
confidential, so that they can subpoena them from the Continental
Kennel Club through “an unencumbered supoena.”
The Court cannot make such a ruling on this record.
If and
when a subpoena issues, and if either the CKC or the plaintiffs
object to any portion of it, the issues of relevance and
confidentiality of the precise records requested in the subpoena
can be briefed and decided.
The Court cannot anticipate such
proceedings, however, or render an advisory opinion about the
CKC’s obligation to produce records which have not been
subpoenaed.
Further, depending upon the location of the records
or the offices of the CKC, this Court may not be the Court from
which the subpoena would issue, and jurisdiction over the issue
may lie in some other District Court unless the plaintiffs would
choose to move for a protective order here.
For all of these
reasons, the Court simply cannot give the Williamsons the order
they ask for, although it is hoped that the discussion which
follows in Section IV of this order might have some impact on the
way in which any subpoena-related matters proceed.
II.
Individual Interrogatory Responses
This issue began several years ago when plaintiffs in the
first-filed case responded jointly to interrogatories directed to
each of them.
Counsel and the Court engaged in a discussion of
the issue, and the Court ruled that separate answers were
necessary only to the extent that the joint answers did not
actually reflect the answers of each individual plaintiff due to
differences in the responses they were required to make.
According to multiple representations made by plaintiffs’
counsel, counsel subsequently prepared and served on the
Williamsons’ attorney separate sets of answers.
A fair number of those separate set of answers never made it
from the Williamsons’ attorney to the Williamsons.
At the urging
of the Court, the plaintiffs’ attorney, Mr. Rubin, agreed to
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search for those answers among his files so long as his clients
were reasonably reimbursed for the cost of this duplicative work.
The Williamsons have been told that some of these separate
answers, but not all, have been located, and that the cost of
finding them was just over $100.00.
They are dissatisfied with
this response because, apparently based on discussions with their
former counsel’s office, they do not believe that separate
answers were ever prepared by some of the plaintiffs, and that
this failure is the explanation for why Mr. Rubin’s office cannot
produce them.
The Court is unaccustomed to a situation where neither the
producing nor the receiving attorney seems to be able to locate
copies of documents served during discovery.
Keeping track of
such matters - especially interrogatory answers - seems fairly
basic.
On the other hand, the Court is convinced that, as a
factual matter, Mr. Rubin did prepare and transmit the answers as
he has told the Court he did.
His clients should not have to
bear the expense of doing so twice.
The Court will not issue any
further orders on this issue, but the Williamsons may, of course,
ask similar questions at the upcoming depositions should they so
desire.
III.
Fredericka Wagner “Mother Files”
As originally presented, this issue related to certain files
about which Ms. Wagner testified in her deposition.
identified these files but never produced them.
She
She has since
taken the position that the files no longer exist.
She was
directed to provide, and now has provided, a declaration
explaining what happened to them.
The Williamsons contend that
they are entitled to some type of relief based on how long it
took for this declaration to be provided, and they also question
its accuracy. Further, they argue that she also kept records
relating to the death of her breeding stock and the number of
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puppies and litters produced, and that her declaration does not
directly address these documents, stating neither that these
documents were destroyed nor that she had already produced all
such records in her possession.
There has already been much discussion about and time
devoted to this issue, but the Williamsons have raised a valid
point about the other documents.
Within fourteen days, Ms.
Wagner shall file a supplemental declaration which addresses this
issue.
That filing should put to rest any lingering concerns
about the production of these documents.
IV.
Sale Information on 21 Specific Dogs
This last issue is perhaps the most contentious.
The
Williamsons have long sought information about dogs which were
bred and sold by the various plaintiffs.
Plaintiffs have
continually (and despite suggestions by the Court to the
contrary) refused to produce any such records, claiming that they
are both proprietary and confidential and that they are
irrelevant.
In particular, in their briefing on the motion, they
argue that the only possible relevance such records might have
would be to support a “clean hands” defense to the Lanham Act
claims, and that no such defense can be found in the Williamsons’
pleadings.
Turning to the relevance issue first, the Williamsons make
several arguments why such information is relevant.
First, they
assert that they raised this issue in a reply memorandum filed on
August 15, 2008.
It is true that they did so, but it is not
clear what that argument related to apart from disputing the
truth of a representation which plaintiffs make in their
complaint that they all abide by the “breed standard for the
American Mastiff set by the AMBC and recognized by the
Continental Kennel Club.”
Although the reply brief questioned
how plaintiffs, or “anyone” could “bring a suit such as this”
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given the fact that plaintiffs have also bred and sold mastiffs
that purportedly do not meet the “Muzzle Standard” (i.e. a “mask”
around the eyes of the dog), see Doc. 11, at 9-10, it is not at
all clear that the argument pertained to either a clean hands
defense or any other particular reason being advanced for
dismissal of the complaint.
The Court is not persuaded that this
reply memorandum provided sufficient notice to plaintiffs that a
clean hands defense would be raised, and the Williamsons do not
argue that they have mentioned this defense in any pleading.
On the other hand, it is true that plaintiffs have
affirmatively alleged, as part of the factual allegations
supporting their Lanham Act claim, that they “all” abide by the
breed standard at issue here.
Complaint, Doc. 1, ¶13.
They then
allege, in their Lanham Act count, that the Williamsons’ selling
of such dogs is likely to cause confusion or mistake and have
“diluted the value of the American Mastiff breed and brand.”
at ¶s 35-36.
Id.
It is somewhat interesting that plaintiffs now
claim that, having pleaded this fact, they have no obligation to
produce documents which may shed light on whether the “fact” they
have pleaded is a fact at all.
Apparently, their position is
that they have pleaded a fact which might be relevant to a
defense which the Williamsons could have, but did not, raise, but
which is irrelevant to the claim in support of which this
particular fact has been pleaded.
The Court cannot accept that
argument.
Likelihood of confusion is an element of a dilution claim.
See, e.g., Homeowners Group, Inc. v. Home Marketing Specialists,
931 F.2d 1100 (6th Cir. 1991).
The strength of the mark is one
factor to consider in determining likelihood of confusion.
Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1261, 1264
(6th Cir. 1985).
Plaintiffs have properly pleaded, in support of
their claim that their mark is being diluted by the sale of
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maskless Mastiffs, that they do not market such dogs as American
Mastiffs, which would demonstrate that their mark is strong i.e. that they themselves do not dilute it through such sales.
Conversely, if they do sell such dogs in derogation of their own
mark, that tells the Court something about the strength of that
mark, and it might also relate to how similar their actual mark
is to the Williamsons’ - another element of the plaintiffs’
Lanham Act claim.
For these reasons, the Court concludes that
the information the Williamsons are seeking is relevant not just
to a potential clean hands defense, but to affirmative elements
of the plaintiff’s case - elements which they have pleaded
specifically.
Thus, the question about whether the information
is discoverable turns not on relevancy but on the issue of
confidentiality.
All of the declarations attached to the plaintiffs’
memorandum state that the plaintiffs consider customer
information to be “competitively sensitive” and that if they were
to reveal contact information for their customers, that would be
a “breach of [their] business relationship” with the customer and
would harm their reputation as a breeder.
They also insist that
providing such information would be a breach of the customers’
privacy interests.
Finally, they express concern that the
Williamsons might put such information on “social media outlets”
which would, again, harm both the breeders and their customers.
First, the Court is not persuaded that giving the
Williamsons customer information would cause any harm to the
customers themselves.
Plaintiffs have not explained how a person
who buys a particular breed of dog has a privacy interest in
keeping such information confidential.
Presumably, owning a
mastiff is not the type of information which, if disclosed, would
hold a person up to public disgrace or ridicule, and it is not
the type of activity which people ordinarily conduct only in
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private.
The Court assumes that these customers do not have any
hesitation in walking their dogs in public, telling their friends
and neighbors that they own a mastiff, or even taking them to
shows.
It is simply not clear how revealing this information,
especially under the restrictions in a protective order, will
embarrass or humiliate the customers themselves.
Cf. Bullion v.
Gadaleto, 872 F.Supp. 303, 307 (W.D. Va. 1995)(the key to
assessing privacy interests turns on the potential for
embarrassment and emotional distress from the disclosure of
information).
Nor is it clear that the plaintiffs’ customer relations will
be damaged if they are required to reveal customer information.
They have not produced any evidence that they have a contractual
obligation to keep this information private.
Further, any
disclosure in this case would occur pursuant to a Court order, so
customers could not accuse the plaintiffs of supplying this
information to the Williamsons voluntarily.
Whether someone
would be less likely to buy a dog in the future from a breeder
who turned over that customer’s contact information to someone
else only when ordered to do so by a Court is a question of fact,
and one on which plaintiffs have produced no evidence.
The Court
cannot assume, without proof, that this would be a factor in
future dealings with these or other customers.
That leaves only the plaintiffs’ concern that this is
competitively sensitive information which the Williamsons will
somehow use to the plaintiffs’ disadvantage.
The protective
order, of course, will restrict the use of such information
solely for purposes of this litigation (which should also address
the concern that such information will be posted on social media
sites).
Further, the Court is not persuaded that this
information is, in fact, highly competitively sensitive.
Williamsons point out that Ms. Wagner previously produced
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The
customer information without redactions and without a protective
order and that such information is also routinely disclosed to
the CKC.
The plaintiffs have made no factual showing that their
ability to sell American Mastiffs in the future, either to these
or other customers, will be undercut by any competing sales
efforts by the Williamsons - and, again, the Williamsons will not
be permitted to use this information for their own business
purposes, if, in fact, they are serious competitors of the
plaintiffs.
For all these reasons, the Court concludes that any
lingering concerns about production of customer information on
grounds that it is proprietary, confidential, or competitively
sensitive are adequately addressed by typical restrictions on the
use of such information, and that the Williamsons’ need for this
information outweighs any residual privacy interests involved.
That being so, they are entitled to the specific information they
have requested concerning the 21 dogs in question.
V.
Order
For the reasons set forth above, the Williamsons’ motion to
compel discovery (#139) is granted in part and denied in part.
Plantiffs shall provide the additional discovery required by this
order within fourteen days.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
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This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge
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