American Spirit and Cheer Essentials, Inc. et al v. Varsity Brands, LLC et al

Filing 289

ORDER granting #262 Motion for Protective Order; denying #272 Motion to Compel. Signed by Chief Magistrate Judge Tu M. Pham on November 17, 2022. (cmp)

Case 2:20-cv-02782-SHL-tmp Document 289 Filed 11/17/22 Page 1 of 16

PageID 6038

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
AMERICAN SPIRIT AND CHEER
ESSENTIALS, et al.,

)
)
)
Plaintiffs,
)
)
v.
)
No. 20-cv-2782-SHL-tmp
)
VARSITY BRANDS, LLC,
)
et al.,
)
)
Defendants.
)
________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER AND
DENYING PLAINTIFFS’ MOTION TO COMPEL
________________________________________________________________
Before the court by order of reference are two motions. The
first is a Motion for Protective Order to Enforce Plaintiffs’
Compliance with the Court’s May 13, 2022 Order Closing Discovery
on October 18, 2022 (ECF No. 236), filed by defendants on October
18, 2022. (ECF No. 262.) The second is a Motion to Compel filed by
plaintiffs on November 1, 2022. (ECF No. 272.) Given that both
motions

concern

discovery

relating

to

schools

and

school

districts’ relationship with defendants, the undersigned considers
both motions together in this order. The undersigned finds that a
hearing is unnecessary. For the reasons below, defendants’ Motion
for Protective Order is GRANTED and plaintiffs’ Motion to Compel
is DENIED.
I.

BACKGROUND

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The present case involves antitrust claims brought against
defendants alleging that they conspired to and did in fact form a
monopoly over the cheerleading and scholastic merchandise industry
in the United States. The plaintiffs filed their complaint on July
24, 2020, seeking class certification, damages, and injunctive
relief. (ECF No. 1.) The case was transferred from the Northern
District of Georgia to this court on October 28, 2020. (Id.) All
defendants filed motions to dismiss on December 1, 2020. (ECF Nos.
92, 93, 94, 95.)
On March 12, 2021, defendants filed a motion for a protective
order seeking to prevent discovery as to the non-cheerleading
related

areas

of

their

business,

specifically

“marching

band

uniforms, graduation regalia and other scholastic merchandise such
as yearbooks and class rings, and athletic equipment.” (ECF No.
118-1 at PageID 544.) Defendants argued that these areas of the
business were overseen by Varsity-owned corporations that were the
subjects of pending motions to dismiss, specifically ECF Nos. 92
and 93, and that discovery should be stayed while those motions
were pending. On June 1, 2021, Magistrate Judge Charmiane Claxton
entered an order granting the defendants’ motion in part (“June 1
Protective Order”). (ECF No. 132.) Judge Claxton stated:
The court finds that there is good cause to grant the
requested protective order regarding the limited areas
of inquiry until the pending motions to dismiss have
been resolved. The motion for protective order is
GRANTED specifically as to discovery related to
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“marching band uniforms, graduation regalia and other
scholastic merchandise such as yearbooks and class
rings, and athletic equipment.” Should the Moving
Defendants’ motions to dismiss be denied in whole or in
part, this protective order shall be terminated and
responses to any discovery that is withheld pursuant to
this protective order shall be provided to Plaintiffs
within thirty (30) days of the entry of the relevant
order on motion to dismiss.
(Id. at PageID 793.) Plaintiffs did not appeal this order.
On October 28, 2021, presiding District Judge Sheryl Lipman
granted in part and denied in part ECF No. 92, one of the pending
motions to dismiss discussed in Judge Claxton’s order. (ECF No.
141.) This motion to dismiss dealt with claims against Bain
Capital, LP, and Charlesbank Capital Partners, LLC, the current
and prior owners of defendant Varsity, as well as defendant Varsity
Brands Holding Co., Inc. (ECF No. 92.) Judge Lipman dismissed Bain
and Charlesbank from the case but declined to dismiss a Sherman
Act claim against Varsity Holding Co. (ECF No. 141 at PageID 912.)
The other motion to dismiss discussed in Judge Claxton’s order,
ECF No. 93, which sought to dismiss claims against divisions of
Varsity Brands that engage in non-cheerleading related business,
remained pending.
Defendants filed a motion for protective order on February 7,
2022, after plaintiffs alerted defendants that they intended “to
serve

two

hundred

and

forty-two

subpoenas

duces

tecum

on

defendants’ scholastic customers.” (ECF No. 165 at PageID 1218.)
The

subpoenas

were

aimed

at

high

- 3 -

schools,

colleges,

and

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universities that are customers of defendants’ scholastic goods.
(See

ECF

No.

165-1.)

Each

subpoena

contained

the

following

requests:
1. Any agreement or contracts between the school and any
of the following companies in the past 7 years:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

Varsity Brands, LLC
BSN Sports
Varsity Spirit, LLC
Stanbury Uniforms, LLC
Herff Jones
Varsity Brands Holding Co., Inc.
Varsity Spirit Fashion & Supplies
USA Federation for Sport Cheering d/b/a USA Cheer

2. Documents showing how much the school or member
schools purchased from these companies over the past 7
years;
3. Documentation or agreements entered into with any of
the aforementioned companies for any “All School” or
“Impact Program” sales or services offered by them for
the years 2015 to present;
4.
Documentation
showing
the
name
and
contact
information for the person or persons primarily
responsible for making any agreements with these
companies at the school or member-schools.
(Id.) Two days after defendants’ motion was filed, plaintiffs filed
a

Motion

to

Compel

and

for

Sanctions,

which

laid

out

their

justification for both the third-party subpoenas described above,
as well as multiple discovery requests directed to defendants.
(ECF No. 167.) Plaintiffs argued that the June 1 Protective Order
entered by Judge Claxton dissolved when Judge Lipman dismissed
Bain and Charlesbank from the case on October 28, 2021, thus making
their requests for documents relating to non-cheerleading business
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ripe as of that date. (ECF No. 167-1 at PageID 1741.) Plaintiffs
argued this included any requests made in their first set of
document requests, initially served in February 2021, that related
to non-cheerleading scholastic markets and that were covered by
the June 1 Protective Order. (Id. at PageID 1742.)
In ruling on the two motions, the undersigned wrote the
following:1
[T]he pending motion to dismiss involved “the limited
areas of inquiry” the protective order was designed to
address. For clarity’s sake, the undersigned finds that
the June 1 Protective Order remains operative until the
pending motion to dismiss [ECF No. 93] is denied in whole
or in part. Should that occur, the protective order shall
then terminate, and “responses to any discovery that is
withheld pursuant to the protective order shall be
provided to plaintiffs within thirty (30) days of the
entry of order on the pending motion to dismiss.”
(ECF No. 177 at PageID 2448.) Plaintiffs’ motion to compel also
sought responses to cheer-related requests. Because these requests
were not covered by the June 1 Protective Order, they were ripe
for consideration. In denying the motion, the undersigned wrote
the following:
[P]laintiffs do not identify which requests are “outstanding”
or which they seek to compel responses on, which violates
this district’s local rules. LR 26.1(b)(2). To the extent
that this lack of specificity reflects the desire to compel
responses or additional documents regarding every request
included, plaintiffs do not explain how Varsity’s prior
responses were deficient or whether Varsity responded at all.
Only in Varsity’s response was the court notified that Varsity
1On

November 11, 2021, the case was transferred from Judge Claxton
to the undersigned as the referral magistrate judge. (ECF No. 144.)
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had indeed responded and objected to these requests over a
year ago, on March 29, 2021. (ECF No. 175-1.) According to
the terms of this case’s Scheduling Order, the “final
deadlines” for “parties to submit disputes to court regarding
any areas of dispute regarding documents to be produced in
response to requests for production” is “90 days from service
of the Parties’ first Requests for Production.” (ECF No. 100
at 1-2.) Plaintiffs’ deadline to raise any issues with
Varsity’s responses and objections to the requests in Exhibit
A was thus May 27, 2021, ninety days after they served those
requests on February 26, 2021. (ECF No. 167-2 at 41.)
Plaintiffs have not attempted to address the effects of the
Scheduling Order and the record, on its own, does not provide
any clear excuse to set aside the Scheduling Order or modify
it here.
(Id. at PageID 2450-51.)
On March 30, 2022, Judge Lipman granted in part and denied in
part ECF No. 93, which effectively terminated the June 1 Protective
Order. (ECF No. 194.) On April 18, 2022, plaintiffs filed a motion
to amend the scheduling order, seeking a 302-day extension for all
discovery matters and requesting additional discovery related to
the topics covered by the June 1 Protective Order. (ECF No. 214.)
On May 13, 2022, Judge Lipman denied their motion as to any
discovery that had not been covered by the Protective Order. (ECF
No. 236 at PageID 3544.) However, she extended deadlines for
discovery that had been covered by the Protective Order, namely
discovery regarding “marching band uniforms, graduation regalia
and other scholastic merchandise such as yearbooks and class rings,
and athletic equipment.” (Id.) Judge Lipman also concluded that
“discovery regarding athletic equipment or uniforms strictly used
in the scholastic setting – including scholastic cheerleading –
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was covered by the protective order.” (Id. at PageID 3543 n.2.)
The new date for the close of fact discovery was extended to
October 18, 2022. (Id.) Judge Lipman also observed in that order
that “[p]laintiffs have the ability to conduct this discovery now,
and should have begun doing so on March 30, 2022, when the Court
issued its Order.” (Id.)
Consistent with the terms of the June 1 Protective Order, BSN
and Herff Jones responded to plaintiffs’ requests for documents on
April 29, 2022, and May 13, 2022, respectively. (ECF No. 281 at
PageID 5706 n.2.) Because BSN was not dismissed from the case,
they responded thirty days after the motion to dismiss was decided.
(Id.) Herff Jones was dismissed from the case; however, plaintiffs
filed an amended complaint on April 13, 2022, which included Herff
Jones as a defendant.2 (ECF No. 209.) Herff Jones responded to the
discovery requests thirty days after being named in the amended
complaint. (Id.)
The undersigned notes that plaintiffs did not mention in their
present motion that they received discovery responses from BSN or
Herff Jones. According to plaintiffs, defendants did not produce
any

of

the

documents

they

withheld

pursuant

to

the

June

1

Protective Order within thirty days. (ECF No. 272 at PageID 4892.)

2On

May 11, 2022, defendants filed motions to dismiss the amended
complaint, which remain pending. (ECF Nos. 232, 234, 235.)
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However, on June 21, 2022, plaintiffs’ counsel sent the following
email to counsel for the Varsity defendants: “Previously, several
Defendants responded to requests for production with statements to
the effect of ‘any such documents have been or will be produced.’
As of today, can Defendants confirm that they have produced all
responsive

documents

(and

document

portions)

not

claimed

privileged? If not, please explain.” (ECF No. 281-1 at PageID
5732.) Counsel for defendants responded, “I can confirm that
Varsity (including BSN and Herff Jones) has produced all the
documents

that

it

said

it

would

produce

in

those

entities’

responses to Plaintiffs’ requests for production of documents.
Varsity continues to stand on the objections set out in those
responses.” (Id.) As explained later in this order, the fact that
the

defendants

responded

is

significant

for

determining

when

plaintiffs’ obligation to file a motion to compel arose.
On August 24, 2022, plaintiffs sent Requests for Production
(“RFPs”) that included twenty-four requests regarding cheer and
non-cheer related discovery. (ECF No. 272 at PageID 4892.) On
September 23, 2022, defendants filed objections to the requests.
(Id.

at

PageID

4893.)

On

October

7,

2022,

plaintiffs

sent

defendants an email stating, “Pursuant to Rule 45, let this be
notice that the American Spirit Plaintiffs intend to soon serve

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the attached subpoenas.”3 (ECF No. 262 at PageID 3919.) Attached
to the email were 238 subpoenas directed to schools and school
districts.

(Id.)

The

plaintiffs

attempted

subpoenas
to

serve

are
in

identical
February,

to

those

except

for

that
the

following: (1) they do not seek documents, agreements, or contracts
between schools and Stanbury Uniforms, LLC and Herff Jones; and
(2) they specify that the agreements and contracts from Request 1
must involve “athletic goods or services, cheerleading goods or
services, or uniforms used in the scholastic setting.” (ECF No.
262-2.) Defendants filed a motion for a protective order, arguing
that defendants violated the scheduling order by serving subpoenas
whose return date, November 7, 2022, was after the close of fact
discovery. (ECF No. 262 at PageID 3923.) Defendants also argue
that the subpoenas were intended to damage Varsity’s customer
relationships with schools. (Id. at PageID 3924.) Plaintiffs filed
a response on November 1, 2022, arguing that because the plaintiffs
had attempted to serve the subpoenas in February, they should be
considered timely. (ECF No. 273 at PageID 5164.)
The same day, plaintiffs filed a motion to compel defendants
to respond to plaintiffs’ August 24, 2022 RFPs. (ECF No. 272 at

3In

their motion to compel, plaintiffs represent that they have
served subpoenas on “more than 260 schools across the United
States.” (ECF No. 272 at PageID 4896.) If that is the case, notice
was never provided for at least 22 of the subpoenas in violation
of Federal Rule of Civil Procedure 45(a)(4).
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PageID 4896.) The defendants responded on November 9, 2022. (ECF
Nos. 281, 282, 283.) With leave of court, plaintiffs filed a reply
on November 17, 2022. (ECF No. 287.) Defendants argue that the
August RFPs sought discovery that was not covered by the June 1
Protective Order and included requests that had already been
responded to previously. Further, they assert that the motion to
compel

is

untimely

because

it

was

filed

after

the

close

of

discovery.
II.
A.

ANALYSIS

Motion for Protective Order
Rule 26 provides that “[t]he court may, for good cause, issue

an

order

to

protect

a

party

or

person

from

annoyance,

embarrassment, oppression, or undue burden or expense, including
. . . forbidding the disclosure or discovery.” Fed. R. Civ. P. 26.
The

undersigned

finds

that

there

is

good

cause

to

issue

a

protective order in this case because plaintiffs’ subpoenas are
untimely.
The subpoenas in question are governed by the fact discovery
deadline set forth in the May 13, 2022 scheduling order. (ECF No.
236.) “[A] subpoena issued pursuant to Federal Rule of Civil
Procedure 45 is considered to be a discovery device in the Sixth
Circuit, and accordingly, must adhere to the deadlines of a court's
scheduling order.” Allstate Ins. Co. v. Papanek, 309 F. Supp. 3d
511,

514

(S.D.

Ohio

2018)

(internal
- 10 -

citation

and

quotation

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PageID 6048

omitted); see also Olmstead v. Fentress Cty., Tenn., No. 16-cv0046, 2018 WL 6198428, at *3 (M.D. Tenn. Nov. 28, 2018) (“Courts
in this circuit have held that subpoenas are discovery devices
that are

subject to the discovery deadlines in a scheduling

order.”). “Indeed, Rule 45(d)(3), in relevant part, provides that
the court for the district where compliance is required ‘must quash
or modify a subpoena’ that ‘fails to allow a reasonable time to
comply.’” Donald J. Ulrich Assocs., Inc. v. Bill Forge Private
Ltd., No. 17-cv-10174, 2018 WL 6061083, at *2 (E.D. Mich. Nov. 20,
2018) (quoting Fed. R. Civ. P. 45(d)(3)). Accordingly, “[c]ourts
act within their sound discretion in quashing a subpoena where the
discovery sought would not be produced until after expiration of
the discovery deadline.” Papanek, 309 F. Supp. 3d at 514. In this
case, the subpoenas were issued on October 7, 2022. (ECF No. 267.)
They had a return date of November 7, 2022. (Id.) The close of
fact discovery was October 18, 2022. (ECF No. 236.) The return
date for the subpoenas was thus after the close of fact discovery.
Plaintiffs argue that they should be permitted to serve the
subpoenas because their previous attempts at service were blocked
by defendants. (ECF No. 273 at PageID 5164.) It is true that
plaintiffs

attempted

to

serve

nearly

identical

subpoenas

in

January of 2022 and were met with a motion for protective order
from defendants, which was subsequently granted. (ECF Nos. 165,
177

at

PageID

2448.)

Because

of

- 11 -

this,

plaintiffs

contest

Case 2:20-cv-02782-SHL-tmp Document 289 Filed 11/17/22 Page 12 of 16

defendants’

contention

that

they

should

have

PageID 6049

served

these

subpoenas earlier.
The undersigned is not persuaded by this argument. In granting
that motion for protective order, the undersigned stated that “the
June 1 Protective Order remains operative until the pending motion
to dismiss is denied in whole or in part.” (Id.) This occurred on
March 30, 2022, when Judge Lipman granted in part and denied in
part the final pending motion to dismiss. (ECF No. 194.) The June
1 Protective Order was thus terminated on March 30, 2022. At that
point, plaintiffs had already drafted and attempted to serve the
subpoenas in question. (ECF No. 165-1.) There are only slight
changes between the January subpoenas and those at issue in this
motion.

(ECF

Nos.

165-1,

262-2.)

With

the

subpoenas

already

prepared for service, plaintiffs could have tried to serve them
again as early as March. They did not do so; instead, the next
attempt to serve these subpoenas occurred on October 7, 2022. (ECF
No. 276-1 at PageID 5684.) There is no evidence that plaintiffs
were prohibited from issuing their subpoenas after March 30, 2022.
For these reasons, the undersigned finds that there is good cause
to issue a protective order. Defendants’ motion for protective
order is therefore GRANTED.
B.

Motion to Compel
Plaintiffs seek the court to compel the defendants to produce

any non-privileged documents that are responsive to their August
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24, 2022 RFPs. (ECF No. 272 at PageID 4896.) This motion is denied
for several reasons. First, the discovery deadline has passed for
most of the requests at issue. Their August 24, 2022 RFPs (Exhibit
I)

is

directed

at

“all

defendants”

and

includes

twenty-four

Requests, which seek discovery on both the topics that were covered
and those that were not covered by the June 1 Protective Order.
(ECF No. 272-9 at PageID 5019.) Judge Lipman expressly denied
plaintiffs’ motion to extend discovery for those topics that were
not the subject of the Protective Order. (ECF No. 236 at PageID
3544.) All other discovery had to be completed by April 18, 2022.
(ECF No. 159 at PageID 1204.) Requests 1, 3, 4, 5, 6, 8, 9, 13,
14, 15, 16, 17, 18, 20, 21, 22, and 23 seek discovery that was not
stayed by the Protective Order, and thus the discovery deadline
has long since passed as to those requests.4 (ECF No. 272-9.)
Second, of the seven remaining requests that were stayed by
the June 1 Protective Order, plaintiffs do not identify which
requests are “outstanding” or which they seek to compel responses
on, which violates this district’s local rules. LR 26.1(b)(2). To
the extent that this lack of specificity reflects the desire to
compel responses or additional documents regarding every request
included, plaintiffs do not explain how the defendants’ prior

4In

their reply, plaintiffs acknowledge that “parts of the August
24 requests do appear outside the scope of the Court’s discovery
limits.” (ECF No. 287-1 at PageID 5892.) As a result, plaintiffs
withdrew requests 15-18 and 20-23. (Id. at PageID 5896.)
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responses were deficient. Further, as to BSN and Herff Jones - the
defendants

most

likely

to

have

discoverable

information

-

plaintiffs have not provided their responses to their original
RFPs, nor did they provide the original RFPs for Herff Jones.
Plaintiffs did not file a motion to compel those responses, to the
extent they were not satisfied with them. Instead, they reissued
new RFPs, some of which were repetitive of their original requests.
For example, in the original RFPs sent to BSN, plaintiffs sought
sale records for class rings and championship rings.5 (ECF No. 2727 at PageID 4933.) In the August 24, 2022 RFPs, plaintiffs again
seek sales records or sales documents for “graduation regalia,”
which includes “class or championship rings.” (272-9 at PageID
5033.) According to the terms of this case’s original Scheduling
Order, the “final deadlines” for “parties to submit disputes to
[the] court regarding any areas of dispute regarding documents to
be produced in response to requests for production” is “90 days
from service of the Parties’ first Requests for Production.”6 (ECF
No. 100 at 1-2.) Ninety days from the termination of the June 1

5Because

plaintiffs did not include the original RFPs for Herff
Jones, it is impossible to determine whether the requests are
repetitive (or not) as to that defendant.
6The

undersigned highlights that the plaintiffs encountered this
same dilemma when they filed a motion to compel discovery on
February 9, 2022. (ECF No. 167.) The undersigned in denying
plaintiffs’ motion to compel cautioned them that the Scheduling
Order required the parties to file motions to compel within this
ninety-day period. (ECF No. 177 at PageID 2450-51.)
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Case 2:20-cv-02782-SHL-tmp Document 289 Filed 11/17/22 Page 15 of 16

Protective Order

was June 28, 2022.

PageID 6052

Plaintiffs are past the

deadline to raise issues with Herff Jones and BSN’s responses.
They cannot remedy that deficiency by serving a new set of RFPs.
Lastly, defendants bring this motion to compel after the close
of discovery. Defendants sent their objections to the RFPs on
September 23, 2022. Plaintiffs waited thirty-nine days to file a
motion to compel on November 1, 2022, which was fourteen days after
the close of discovery. “[A]bsent special circumstances,” a court
may deny a motion to compel discovery where it is not timely filed
in accordance with the applicable scheduling order. Avanos Medical
Sales, LLC v. Medtronic Sofamor Danek USA, Inc., No. 19-cv-2754JPM-tmp,

2021

WL

848177,

at

*3

(W.D.

Tenn.

Mar.

5,

2021)

(quoting FedEx Corp. v. United States, No. 08–2423 Ma/P, 2011 WL
2023297, at *3-4 (W.D. Tenn. Mar. 28, 2011); see also Overnite
Transportation Co. v. Int'l Brotherhood of Teamsters, No. 99–2747
DV, 2001 WL 1910054, at *1 (W.D. Tenn. Oct. 26, 2001); Medtronic
Sofamor Danek, Inc. v. Osteotech, Inc., No. 99–2656, 2001 WL
1910058 (W.D. Tenn. Sept. 21, 2001)

(“[T]he motion to compel was

filed with the Court on August 22, 2001, one day after the August
21, 2001 discovery deadline had passed. If for no other reason,
the motion should be denied as untimely filed after the discovery
deadline”); Banks v. CBOCS West, Inc., No. 01 C 0795, 2004 WL
723767, *2 (N.D. Ill. April 1, 2004); Willis v. New World Van
Lines,

Inc.,

123

F.

Supp.

2d

- 15 -

380,

401

(E.D.

Mich.

Case 2:20-cv-02782-SHL-tmp Document 289 Filed 11/17/22 Page 16 of 16

PageID 6053

2000) (citing Ginett v. Fed. Express Corp., 166 F.3d 1213 (6th
Cir.

1998)).

Plaintiffs

have

not

pointed

to

any

“special

circumstance” that explains why the motion could not be filed
before the discovery deadline.7 The fact that the motion to compel
was filed after the close of discovery provides additional grounds
to deny the motion.
III. CONCLUSION
For the reasons above, defendants’ motion for a protective
order is GRANTED and plaintiffs’ motion to compel is DENIED.
Plaintiffs are hereby ordered to refrain from serving the subpoenas
at issue in this motion, or, if already served, to notify those
third parties in writing that the subpoenas have been quashed
within five days from the date of this order.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
November 17, 2022 _____
Date

7On

October 28, 2022, plaintiffs filed a Notice of Conflict, which
stated that Interim Lead Class Counsel had undergone a medical
procedure on October 25, 2022, and that “it may be advantageous to
the fair resolution of the case” that no hearings or responses be
made due until December 14, 2022. (ECF No. 270.) Although this has
not been raised as a special circumstance in plaintiffs’ briefing,
even if it had, the date of lead counsel’s medical procedure was
after the close of discovery on October 18, 2022.
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