Kendle v. WHIG Enterprises, LLC et al

Filing 50

OPINION AND ORDER granting in part and denying in part 35 Motion to Compel. Signed by Magistrate Judge Norah McCann King on 3/9/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN F. KENDLE,
Plaintiff,
vs.

Civil Action 2:15-cv-1295
Judge Frost
Magistrate Judge King

WHIG ENTERPRISES, LLC, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Combined Motion to
Compel Discovery from Defendants WHIG Enterprises, LLC, Rx Pro of
Mississippi, Inc., Mitchell Chad Barrett, and Jason Rutland, ECF No.
35 (“Motion to Compel”); the opposition of Defendants WHIG
Enterprises, LLC, Rx Pro of Mississippi, Inc., and Mitchell Chad
Barrett, ECF No. 39 (“Opposition”); and plaintiff’s reply brief, ECF
No. 41 (“Plaintiff’s Reply”).

For the reasons that follow, the Motion

to Compel is GRANTED in part and DENIED in part.
I.

Factual Allegations and Procedural History
Defendant WHIG Enterprises, LLC (“WHIG”) is a Florida limited

liability company whose members include, inter alios, defendants
Mitchell Chad Barrett and David Jason Rutland.
No. 10, ¶¶ 1, 3-4.

Amended Complaint, ECF

Rx Pro Mississippi, Inc. (“Rx Pro”), an affiliate

of WHIG, is controlled by its sole shareholders, defendants Barrett
and Rutland.

Id. ¶ 2.

WHIG and Rx Pro are in the business of

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manufacturing and marketing medical and pharmaceutical products,
including compounded medications, which are formulations of individual
medications prescribed to provide relief from pain, scars, wounds,
migraine headaches, and other physical ailments.

Id. at ¶¶ 6, 10.

WHIG and Rx Pro market their medical products through distributors and
salespersons such as plaintiff, a resident of Marietta, Ohio.

Id. at

¶¶ 5-6.
At all times relevant to the Amended Complaint, defendants
Barrett and Rutland, individually and on behalf of WHIG and/or Rx Pro,
had a continuing business relationship with Axion Therapeutics, LLC
(“Axion”), which is located in Cleveland, Ohio, involving the sale of
compounded medications.

Id. at ¶ 11.

In the summer of 2013, after

learning of plaintiff’s sales and marketing activities on Axion’s
behalf, defendants Barrett and Rutland began communicating with
plaintiff, who was located in Ohio, in order to recruit plaintiff to
work directly with them and on behalf of WHIG and/or Rx Pro.

Id. at ¶

11.
On August 27, 2013, plaintiff and WHIG entered into a consultant
agreement and a memorandum of understanding.

Id. at ¶¶ 12-25.

More

specifically, following negotiations, plaintiff entered into a
Distributor Consultant Agreement with WHIG pursuant to which he would
receive a commission on plaintiff’s sale of medical products
manufactured by WHIG and/or Rx Pro, including compounded medications,
by distributing the products in Ohio and throughout the United States.
Id. at ¶¶ 12-13; Exhibit A (copy of Distributor Consultant Agreement

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effective September 1, 2013), attached thereto.

Plaintiff and

defendant Barrett signed the Distributor Consultant Agreement.

Id. at

p. 5.
Plaintiff and WHIG also entered into a memorandum of
understanding (“Memorandum of Understanding”) regarding certain
physician marketing groups known as “BAMBR Marketing Groups.”
Complaint, ¶¶ 20-27; Exhibit B (copy of Memorandum of Understanding),
attached thereto.

Under the BAMBR business model, defendants

compensated physicians and other healthcare providers who prescribed
WHIG products to their patients by offering the providers ownership
interests in BAMBR Marketing Groups.

Complaint, ¶ 22.

According to

plaintiff, defendants had already begun establishing such groups in
Mississippi and Florida and solicited plaintiff to expand the BAMBR
business model throughout the United States.

Id. at ¶ 23.

In

exchange, defendants Barrett and Rutland, individually and on behalf
of WHIG and/or Rx Pro, promised plaintiff that he would receive an
ownership interest in and a share of the profits earned by the BAMBR
program.

Id. at ¶ 24.

Defendant Barrett, acting on behalf of WHIG

and/or Rx Pro, and plaintiff executed the Memorandum of Understanding,
which entitled plaintiff to an ownership interest in BAMBR Marketing
Groups and additional compensation for marketing BAMBR stock ownership
to qualified physicians for membership in BAMBR.
B, attached to Amended Complaint.

Id. at ¶ 25; Exhibit

Plaintiff successfully enlisted at

least three physicians, including one from West Virginia and two from
North Carolina, as members.

Amended Complaint, ¶ 27.

3

On February 25, 2014, plaintiff, acting as a marketer for
defendants, communicated with defendants Barrett and Rutland about
organizing a meeting of distributors in Atlanta, Georgia.
35.

Id. at ¶

Plaintiff alleges that defendants Barrett and Rutland later

wrongfully blamed him for promoting the discussion of negative topics
during the distributor meeting in Atlanta and “immediately terminated
their business relationships with Plaintiff and ceased all
communication with him” and terminated his access to defendants
at ¶¶ 36-38.

Id.

According to plaintiff, defendants Barrett and Rutland

contacted plaintiff’s sales representatives and encouraged them to
terminate existing relationships with plaintiff and work directly with
defendants.

Id. at ¶ 39.

Despite plaintiff’s requests, defendants

allegedly failed and refused to pay plaintiff commissions from
(1) sales procured by plaintiff and his sales team for
January, 2014, February 2014 and all months to follow until
all refills on all scripts were exhausted from those made
in Ohio and throughout the United States (2) commissions
owed to Plaintiff for refill sales procured by Plaintiff
and his sales team, and (3) commissions that he would have
earned in the future but for Defendants’ wrongful
termination of the Distributor Consulting Agreement.
Id. at ¶ 40.

Plaintiff also alleges that defendants have failed to

pay him for services in connection with the expansion and development
of the BAMBR program nationwide and have failed to pay him profits
and/or other compensation for plaintiff’s actions that were necessary
to the establishment of the Rx Pro Compounding pharmacy in Indiana,
Pennsylvania.

Id. at ¶¶ 41-42.

On April 15, 2015, plaintiff instituted this action, naming as
defendants WHIG, Rx Pro, and Messrs. Barrett and Rutland.

4

Complaint,

ECF No. 1.

Thereafter, plaintiff filed the Amended Complaint,

asserting claims of breach of contract (breach of the Distributor
Consultant Agreement, the Memorandum of Understanding, and the
agreement in connection with the Rx Pro compounding pharmacy in
Pennsylvania), unjust enrichment, and tortious interference with
contractual and business relationships arising out of defendants’
alleged wrongful termination of the parties’ medical and
pharmaceutical products and services marketing agreement.
On July 15, 2015, the Court conducted a preliminary pretrial
conference pursuant to the provisions of Fed. R. Civ. P. 16(b).
Following that conference, the Court issued an order directing, inter
alia, that all discovery be completed by June 1, 2016 and that
dispositive motions be filed by July 1, 2016.
Order, ECF No. 18, p. 2.
begin December 5, 2016.

Preliminary Pretrial

The Court also scheduled a jury trial to
Scheduling Order, ECF No. 19, p. 1.

Thereafter, the parties engaged in discovery.

On September 9,

2015, plaintiff served interrogatories and requests for production of
documents on defendants (collectively, “Discovery Requests”).
Declaration of Alvin E. Mathews, Jr., ¶¶ 2-3, attached to Motion to
Compel (“Mathews Declaration”); defendant Rutland’s responses to
discovery requests, attached as Exhibit A to Motion to Compel
(individual requests and responses referred to as “Interrogatory No.
___,” “Rutland Interrogatory Answer No. __,” “Document Request No.
__,” and “Rutland Document Response No. __”); discovery responses of
WHIG, Rx Pro, and defendant Barrett, attached as Exhibit B to Motion

5

to Compel (individual requests and responses referred to as
“Interrogatory No. ___,” “Opposing Defendants’ Interrogatory Answer
No. __,” “Document Request No. __,” and “Opposing Defendants’ Document
Response No. __”).

On or around January 15, 2016, defendants WHIG, Rx

Pro, and Barrett provided supplemental responses and objections to
plaintiff’s interrogatories.

See ECF No. 39-1 (“Opposing Defendants’

Supplemental Interrogatory Answer No. __”
Plaintiff has now moved to compel certain information from
defendants, which defendants WHIG, Rx Pro, and Barrett oppose.
Opposition.
Compel.

See

Defendant Rutland has not responded to the Motion to

With the filing of Plaintiff’s Reply, this matter is now ripe

for review.
II.

Standard
Rule 37 of the Federal Rules of Civil Procedure authorizes a

motion to compel discovery when a party fails to respond to
interrogatories submitted under Rule 33 and/or requests for production
of documents under Rule 34.

Fed. R. Civ. Pro. 37(a)(3)(B)(iii), (iv).

“The ‘proponent of a motion to compel discovery bears the initial
burden of proving that the information sought is relevant.’”

O'Malley

v. NaphCare Inc., No. 3:12-CV-326, 2015 WL 6180234, at *2 (S.D. Ohio
Oct. 21, 2015) (quoting Hendricks v. Hazzard, No. 2:11–cv–399, 2013 WL
4052873, at *3 (S.D. Ohio Aug. 12, 2013)).
Rule 26(b) provides that “[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).

6

Relevance for discovery

purposes is extremely broad.
389, 402 (6th Cir. 1998).

Lewis v. ACB Bus. Servs., Inc., 135 F.3d

“The scope of examination permitted under

Rule 26(b) is broader than that permitted at trial.

The test is

whether the line of interrogation is reasonably calculated to lead to
the discovery of admissible evidence.”

Mellon v. Cooper-Jarrett,

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).
In addition, the party moving to compel discovery must certify
that it “has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort
to obtain it without court action.”
also S.D. Ohio Civ. R. 37.2.

Fed. R. Civ. P. 37(a)(1).

See

Similarly, Local Rule 37.1 provides that

discovery related motions “shall not be filed in this Court under any
provision in Fed. R. Civ. P. 26 or 37 unless counsel have first
exhausted among themselves all extrajudicial means for resolving the
differences.”
met.

S.D. Ohio Civ. R. 37.1.

This prerequisite has been

See Mathews Declaration, ¶¶ 2-7; Exhibit C (copies of counsel’s

correspondence, attached to Motion to Compel.
III. Discussion
A.

Rx Pro

After the filing of the Motion to Compel, Rx Pro’s bankruptcy was
noted on the record.

See Suggestion of Bankruptcy, ECF No. 43.

Pursuant to 11 U.S.C § 362, the automatic stay applies to Rx Pro.
Motion to Compel is therefore DENIED as it relates to Rx Pro.

The

The

Court, however, expresses no opinion as to what extent this party may
be subject to the discovery processes notwithstanding its bankruptcy.

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B.

Discovery Requests regarding Agreements with Plaintiff and
Services Performed (Interrogatory Nos. 2, 3, 4; Document
Request Nos. 1 and 2)1

Plaintiff seeks an order compelling defendants to identify all
agreements entered into with plaintiff (Interrogatory No. 2); to
identify all written and verbal communications exchanged with
plaintiff regarding any agreements with him (Interrogatory Nos. 3 and
4); to produce all written communications exchanged with plaintiff
regarding these agreements (Document Request No. 1); and to produce
all communications with plaintiff regarding the services plaintiff
performed for defendants and/or defendants’ companies or affiliates
(Document Request No. 2).
1.

See Discovery Requests, PAGEID#:263-265.

Defendant Rutland

Defendant Rutland responds that he “never entered into any
agreements with Plaintiff” and that he has no such written
communications to produce.

Defendant Rutland’s Interrogatory Answer

Nos. 2, 3, and 4, PAGEID#:263-264; Defendant Rutland’s Responses to
Document Request Nos. 1 and 2, PAGEID#:265.

Defendant Rutland

“recalls only a couple of telephone conversations with Plaintiff
regarding normal business matters such as the filling of
prescriptions[, but he] never had any telephone conferences or other
verbal communications with Plaintiff regarding any agreements.
Defendant has no agreement of any kind with Plaintiff.”

Defendant

Rutland’s Interrogatory Answer No. 4, PAGEID#:264.

1

Because plaintiff apparently challenges the sufficiency of defendants’
answers to all of his discovery requests, see generally Motion to Compel and
Plaintiff’s Reply, p. 1, the Court addresses each request.

8

Because the Motion to Compel and Plaintiff’s Reply do not
identify each discovery request, it is not immediately clear in what
respect plaintiff concludes that defendant Rutland’s responses are
deficient.

Plaintiff argues generally that defendant Rutland provided

“minimal discovery information in response to Interrogatories[.]”
Motion to Compel, p. 5.

Plaintiff also represents that he “specified

that requested ‘communications’ would include the compensation
information related to those Agreements2 and it appears that Defendant
Rutland has provided some, but not all, of that information.”
Plaintiff’s Reply, p. 3.

In short, plaintiff apparently believes that

Defendant Rutland possesses additional responsive documents.
As discussed supra, Defendant Rutland failed to respond to the
Motion to Compel.
granted.

Ordinarily, an unopposed motion to compel would be

See S.D. Ohio Civ. R. 7.2(a)(2). However, plaintiff may not

successfully move to compel discovery on the basis of a mere suspicion
that the producing party possesses additional information that it has
failed to disclose.

See, e.g., Snyder v. Fleetwood RV, Inc., No.

2:13-CV-1019, 2016 WL 339972, at *6 (S.D. Ohio Jan. 28, 2016); Harris
v. Koenig, 271 F.R.D. 356, 370 (D.D.C. 2010) (“I cannot compel what
does not exist.

If plaintiffs are speculating that documents

responsive to these requests do exist, there must be a reasonable
deduction that that is true, and not a mere hunch.”); Hubbard v.
Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) (“Courts supervising discovery
are often confronted by the claim that the production made is so
2

No such specification appears in the text of the discovery requests.
supra.

9

See

paltry that there must be more that has not been produced or that was
destroyed.

Speculation that there is more will not suffice . . . .”).

In this context, a party’s failure to “show[] that a producing party
is in fact in possession of [certain information] is grounds to deny a
motion to compel.”

Peavey v. University of Louisville, No. 3:09–CV–

00484–R, 2011 WL 1106751, *2 (W.D. Ky. Mar. 23, 2011) (internal
quotation marks omitted).

Accordingly, as it relates to defendant

Rutland’s responses to Interrogatory Nos. 2, 3, 4, and Document
Request Nos. 1 and 2, the Motion to Compel is DENIED.
2.

Defendants WHIG and Barrett

Defendants WHIG and Barrett (collectively, “the opposing
defendants”) object to the request to identify all agreements with
plaintiff (Interrogatory No. 2) as vague and ambiguous, but go on to
respond that, in his capacity as WHIG CEO, defendant Barrett signed
the Distributor Consultant Agreement with plaintiff:
Objection. This Interrogatory is vague and ambiguous.
Subject to the foregoing objections, as well as the General
Objections above, the Distributor Consultant Agreement,
effective September 1, 2013, by and between Plaintiff and
WHIG Enterprises, LLC (“the DCA”). The DCA was executed by
Mitchell Chad Barrett (“Barrett”), solely in his capacity
as CEO of WHIG. Barrett cannot recall where he executed
the DCA or where Plaintiff executed it. However, he can
state that he never executed it in Ohio.
Answering further, Defendants state that WHIG entered into
the DCA solely as an independent agent for and on behalf of
World Health Industries, Inc. (“WHI”). In that regard, WHI
gave expressed written authority to WHIG to act as WHI’s
independent agent for purposes of entering into distributor
agreements, like DCA. Thus, with respect to the DCA, WHI
contracted with Kendle through WHIG.
Opposing Defendants’ Supplemental Interrogatory Answer No. 2,

10

PAGEID#:355.

Plaintiff complains that this supplemental answer is

“deficient[,]” see Plaintiff’s Reply, p. 1, but again fails to explain
why it is deficient.

Because the Court declines to speculate as to

why plaintiff characterizes the opposing defendants’ supplemental
interrogatory answer as deficient, the Motion to Compel is DENIED as
it relates to the opposing defendants’ answer to Interrogatory No. 2.
In responding to all telephone or verbal communications they had
with plaintiff regarding their agreements with him (Interrogatory No.
4), the opposing defendants object to the request, but go on to
identify such communications:
ANSWER: Objection. This interrogatory is vague,
ambiguous, overly broad, and unduly burdensome. Subject to
the foregoing objections, as well as the General Objections
above, Defendants state that Barrett, solely in his
capacity as an officer of WHI [World Health Industries,
Inc.], had a verbal communication with Plaintiff shortly
after the meeting in Atlanta, Georgia, after Barrett was
advised by a number of individuals who were present at the
meeting, that Plaintiff was engaging in conduct that was
not advancing the interests of WHI. Defendants further
state that Barrett, solely in his capacity as an officer of
WHI, had other verbal communications with Plaintiff from
time-to-time. However, Barrett cannot state with
specificity when those communications occurred or the
substance of said communications.
Opposing Defendants’ Supplemental Interrogatory Answer No. 4,
PAGEID#:355 (emphasis in the original).

Plaintiff contends generally

that the opposing defendants’ supplemental discovery responses “remain
deficient,” Plaintiff’s Reply, p. 1, but again fails to explain why
this answer is deficient.

As it relates to the opposing defendants’

answer to Interrogatory No. 4, the Motion to Compel is therefore
DENIED.

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As to plaintiff’s requests to identify and produce all written
communications exchanged with plaintiff regarding agreements with him
as well as communications regarding the services he performed for
defendants (Interrogatory No. 3 and Document Request Nos. 1 and 2),
the opposing defendants object to the requests as vague, ambiguous,
overly broad, and unduly burdensome, but go on to state that “at this
time, Defendants could not locate any written communications in their
possession that were exchanged with Plaintiff.
supplement.”
PAGEID#271.

Defendants may

Opposing Defendants’ Interrogatory Answer No. 3,
See also Opposing Defendants’ Document Response Nos. 1

and 2 (referring to Opposing Defendants’ Interrogatory Answer No. 3),
PAGEID#273.

In opposing the Motion to Compel, defendant Barrett avers

that he searched all available records when responding to plaintiff’s
discovery requests and that “no responsive documents in the
possession, custody, or control of Defendants were located.”
Supplemental Declaration of Mitchell Chad Barrett, ¶¶ 5-6, ECF No. 491 (“Barrett Declaration”).3

Defendant Barrett also avers that he no

longer possesses the cellular telephone that he used during the
relevant time period and that he has no access or control over servers
that would have contained any email communications with plaintiff:
7.
I no longer possess the cellular phone that I had
during the relevant time period— August 2013 – February
2014 (“Relevant Time Period”). I also no longer possess
any of the text messages that might have been contained on
that cellular phone.

3

Defendant Barrett’s declaration originally submitted to the Court was
undated. See Declaration of Mitchell Chad Barrett, ECF No. 39-2,
PAGEID#:360; Order, ECF No. 48.

12

8.
During the Relevant Time Period, Defendant Jason
Rutland, I, and others were eithers [sic] owners, members,
or shareholders in a number of entities, including WHIG and
RxPro, as well as an entity known as World Health
Industries, Inc. (“WHI”).
9.
To the best of my knowledge, all of the servers
that would have contained any email communications between
Plaintiff and I [sic], if any, during the Relevant Time
Period (the “Servers”) were under the possession, custody,
and/or control of WHI.
10. Robert Durham was the Chief Financial Officer of
WHI. In that capacity, Mr. Durham was responsible for,
among other things, the accounting obligations of WHIG,
RxPro, and WHI. In that role, Mr. Durham had the
responsibility, as well as control/access to financial
records related to payments to salespersons, including
Plaintiff, who may have performed sales and/or marketing
functions on behalf of WHI.
11. In or around April 2015, Mr. Rutland, I, and
others decided to split our business interests in various
entities in which we had an interest.
12. As part of the business split, I retained an
interest in, among other entities, WHIG and RxPro.
13. As part of the business split, Mr. Rutland and
others retained an interest in, among other entities, WHI.
Additionally, Mr. Durham remained with Mr. Rutland and his
group.
14. To the best of my knowledge and belief, Mr.
Rutland’s group retains possession, custody, and/or control
of the Servers, if any such servers still exist.
15. Neither I nor anyone else under my control has
access to or otherwise controls the Servers.
Barrett Declaration, ¶¶ 7-15.
Plaintiff complains that defendants have not provided
communications regarding their agreements with plaintiff “or any
information regarding their communications with Plaintiff’s sales team
after he was wrongfully terminated.”

13

Motion to Compel, pp. 5-6;

Mathews Declaration, ¶ 6.

According to plaintiff, the assertion that

defendant Barrett no longer possesses the same cell phone or computer
server is insufficient to alleviate the opposing defendants’ discovery
obligations because a “legal right to obtain the documents upon
demand” constitutes sufficient possession.

Plaintiff’s Reply, pp. 2-

3.
As it relates to text messages that may remain on the cellular
telephone that defendant Barrett used during the relevant time period,
plaintiff’s arguments are well-taken.

Defendant Barrett avers that he

no longer possesses that telephone and therefore does not possess any
of the text messages that may be contained on that device.
Declaration, ¶ 7.

Barrett

It is unclear, however, whether defendant Barrett,

or anyone under his control, has access to or control over the
cellular telephone or the phone account which might permit the
opposing defendants to access the text messages on that phone.

Under

these circumstances, the opposing defendants will be required to more
fully respond to plaintiff’s discovery requests in this regard, i.e.,
either produce responsive documents or, after a good faith
investigation, state in a verified discovery response that they do not
have access to or control over the device or the account that would
permit retrieval of the text messages.
Plaintiff, however, misstates or misunderstands the Barrett
Declaration as it relates to the computer servers.

As detailed supra,

defendant Barrett specifically avers that neither he nor anyone else
under his control has access to or controls the servers that contain

14

his email communications with plaintiff.
11-15.

Barrett Declaration, ¶¶ 9,

The Court cannot compel the opposing defendants to produce

information that is not in their possession, custody, or control.

See

Fed. R. Civ. P. 34(a)(1).
Accordingly, as it relates to the opposing defendants’ responses
to Interrogatory No. 3 and Document Requests Nos. 1 and 2, the Motion
to Compel is GRANTED in part.

The opposing defendants are ORDERED to

provide, within fourteen (14) days of the date of this Opinion and
Order, supplemental responses to these discovery requests consistent
with the foregoing.
C.

Discovery Requests regarding Defendants’ Business Trips to
Ohio and Business Relationships in Ohio (Interrogatory Nos.
5 and 6; Document Request No. 3)

Plaintiff seeks an order compelling defendants to identify all
business relationships they have in Ohio and all business trips taken
to the State of Ohio (Interrogatory Nos. 5 and 6) and to produce all
documents regarding defendants’, defendants’ companies’, or
defendants’ affiliates’ business relationships in Ohio (Document
Request No. 3).
1.

See Discovery Requests, PAGEID#:264-265.
Defendant Rutland

After objecting to the requests as vague, ambiguous, overly
broad, and unduly burdensome, defendant Rutland answered that he “has
no business relationship with Plaintiff.
other business relationships in Ohio.”
Interrogatory Answer No. 5, PAGEID#:264.

Further, Defendant has no
Defendant Rutland’s
Defendant Rutland also

stated that he “has not taken any business trips to the State of Ohio.

15

Moreover, Defendant has not taken any business trips to Ohio involving
Plaintiff and/or his customers.”
PAGEID#265.

Interrogatory Answer No. 6,

Defendant Rutland further objected to the scope of the

requests for the production of documents reflecting business
relationships in Ohio:
Any agreements Defendant’s company may have entered into
with other parties are not relevant to the claims being
alleged by Plaintiff and this request is not calculated to
lead to the discovery of admissible information. Further
responding, any such agreements are private and contain
proprietary information. Further responding, Defendant has
no business relationships in Ohio.
Document Response No. 3, PAGEID#:266.
Plaintiff complains generally that defendants have refused to
provide information regarding their business relationships in Ohio,
see Motion to Compel, pp. 3, 5, and that defendant Rutland has
“provided minimal discovery information and records[.]”
Reply, p. 5.

Plaintiff’s

Plaintiff’s arguments are not well-taken.

Defendant Rutland has stated unequivocally and under oath that he
has no business relationships in Ohio and has taken no business trips
to Ohio regarding plaintiff and/or plaintiff’s customers.

There is

nothing more to compel of defendant Rutland.
Moreover, it is not immediately apparent how documents related to
defendant Rutland’s companies’ or his companies’ affiliates’ business
relationships with Ohio have any relevance to any party’s claim or
defense in this action.

See Fed. R. Civ. P. 26(b)(1).

As the movant,

plaintiff bears the initial burden of establishing that the requested
information is relevant.

See, e.g., O'Malley v. NaphCare Inc., No.

16

3:12-CV-326, 2015 WL 6180234, at *2.
in this regard.

Plaintiff has not met his burden

Accordingly, as it relates to defendant Rutland’s

responses to Interrogatory Nos. 5 and 6 as well as Document Request
No. 3, the Motion to Compel is DENIED.
2.

Opposing defendants

In responding to plaintiff’s requests that they identify and
produce documents related to all business relationships in Ohio, the
opposing defendants unequivocally state that they have no business
relationships in Ohio.

Opposing Defendants’ Supplemental

Interrogatory Answer No. 5, PAGEID#:355; Opposing Defendants’ Document
Response No. 3, PAGEID#:273.

As previously discussed, the Court

cannot compel what does not exist.
As to the request to identify any business trips to the State of
Ohio, the opposing defendants answered as follows:
Objection. This Interrogatory is vague, ambiguous, overly
broad, and unduly burdensome. Subject to the foregoing
objections, as well as the General Objections above,
Defendants state that Barrett, solely in his representative
capacity as an officer of WHI, visited Ohio to meet with
Plaintiff and James Kodman, the date of which cannot
specifically be stated. Otherwise, Barrett, in his
capacity as a representative of WHIG and/or RxPro, has not
made any other trips that he can recall to Ohio. Answering
further, Barrett, personally, has not made any trips to
Ohio for any personal business.
Opposing Defendants’ Supplemental Interrogatory Answer No. 6,
PAGEID#:356.

Plaintiff’s generalized assertions that the opposing

defendants’ discovery responses are inadequate do not explain why this
answer is deficient and this Court will not speculate as to the basis
for the Motion to Compel relating to this interrogatory.

17

Accordingly,

as it relates to the opposing defendants’ responses to Interrogatory
Nos. 5 and 6 as well as Document Request No. 3, the Motion to Compel
is DENIED.
D.

Request regarding Trial Exhibits (Document Request No. 4)

Finally, plaintiff seeks an order compelling defendants to
produce all exhibits that they intend to use at trial.
Request No. 4, PAGEID#:266.

Document

Defendant Rutland responded that he has

not yet determined what trial exhibits he intends to use.
Rutland’s Document Response No. 4, PAGEID#:266.

Defendant

The opposing

defendants object to this request because, inter alia, the request is
premature; they represent that they may supplement their response at a
later date.
PAGEID#:274.

Opposing Defendants’ Document Response No. 4,
Plaintiff has again failed to explain why these

responses are deficient.
Reply.
2016.

See generally Motion to Compel, Plaintiff’s

The jury trial in this case is scheduled to begin December 5,
Scheduling Order, ECF No. 19, p. 1.

All parties have a

continuing duty to supplement or correct their discovery responses if
they learn that a response is incomplete or incorrect.
Civ. P. 26(e)(1)(A).

See Fed. R.

Under the present circumstances, the Court

cannot say that defendants’ responses in this regard are inadequate.
Accordingly, as it relates to defendants’ responses to Document
Request No. 4, the Motion to Compel is DENIED.
E.

Request for Fees

Finally, plaintiff seeks fees pursuant to Fed. R. Civ. P.
37(a)(5)(A) associated with the cost of preparing and filing the

18

Motion to Compel.

Rule 37 ordinarily requires the payment of

reasonable expenses associated with the grant of a motion to compel,
including attorney's fees.

Fed. R. Civ. P. 37(a)(5)(A).

However,

where, as here, a motion is granted in part and denied in part, a
court “may

. . . apportion the reasonable expenses for the motion.”

Fed. R. Civ. P. 37(a)(5)(C).

A court is vested with wide discretion

in determining an appropriate sanction under Rule 37. See, e.g., Nat’l
Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642–43 (1976);
Intercept Sec. Corp. v. Code-Alarm, Inc., 169 F.R.D. 318, 321 (E.D.
Mich. 1996).

In the case presently before the Court, plaintiff

prevailed to only a limited degree.

Moreover, although the Court

ordered the opposing defendants to supplement their responses to
Interrogatory No. 3 and Document Requests Nos. 1 and 2, the required
supplement essentially compels these defendants to clarify their
earlier responses.

Stated differently, the responses were not so

deficient as to warrant sanctions.

For these reasons, the Court

concludes that an award of sanctions in plaintiff’s favor would be
inappropriate.
WHEREUPON, Plaintiff’s Combined Motion to Compel Discovery from
Defendants WHIG Enterprises, LLC, Rx Pro of Mississippi, Inc.,
Mitchell Chad Barrett, and Jason Rutland, ECF No. 35, is GRANTED in
part and DENIED in part, consistent with the foregoing.

March 9, 2016

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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