Samsung Electronics America Inc v. Chung et al

Filing 107

MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part All Pro's Second Motion to Compel [Dkt. No. 85 ] and GRANTS in part and DENIES in part Samsung's Motion for Protective Order [Dkt. No. 97 ]. (Ordered by Magistrate Judge David L. Horan on 3/7/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAMSUNG ELECTRONICS AMERICA §
INC.,
§
§
Plaintiff,
§
§
V.
§
§
YANG KUN “MICHAEL” CHUNG,
§
THOMAS PORCARELLO,
§
YOON-CHUL“ALEX” JANG,
§
JIN-YOUNG SONG, ALL PRO
§
DISTRIBUTING, INC.,
§
§
Defendants.
§

No. 3:15-cv-4108-D

MEMORANDUM OPINION AND ORDER
Defendant All Pro Distributing, Inc. (“All Pro”) has filed a Second Motion to
Compel Plaintiff to Withdraw Improper Objections and Respond Fully to Written
Discovery. See Dkt. No. 85 (the “Second MTC”). All Pro seeks an order overruling
Plaintiff Samsung Electronics America, Inc.’s (“Samsung”) objections to All Pro’s First
Requests for Production, First Set of Interrogatories, Second Request for Production
to Plaintiff, and Third Request for Production to Plaintiff and compelling Samsung to
state in its responses whether it has produced responsive documents, compelling
Samsung to fully respond to the requests, and compelling Samsung to produce all
non-privileged responsive documents by a date certain. See id. at 1.

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United States District Judge Sidney A. Fitzwater has referred the Second MTC
to the undersigned United States magistrate judge for a hearing, if necessary, and
determination under 28 U.S.C. § 636. See Dkt. No. 87.
Samsung filed a response, see Dkt. No. 96, as well as an Opposed Motion for a
Limited Protective Order, see Dkt. No. 97 (the “MPO”), which Judge Fitzwater also
referred to the undersigned for a hearing, if necessary, and determination under 28
U.S.C. § 636, see Dkt. No. 98.
All Pro filed a reply in support of the Second MTC, see Dkt. No. 105, as well as
a response to the MPO, see Dkt. No. 104. Defendant Jin-Young Song also filed a
response in opposition to the MPO. See Dkt. No. 102.
On March 6, 2017, the Court heard oral argument on the Second MTC and the
MPO. See Dkt. No. 106.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part All Pro’s Second MTC [Dkt. No. 85] and GRANTS in part and
DENIES in part Samsung’s MPO [Dkt. No. 97].
Background
According to the Second MTC,
Plaintiff Samsung Electronics America, Inc. (“Samsung”) filed its Original
Complaint on December 31, 2015 and its First Amended Complaint
(“Complaint”) on June 8, 2016. [Dkt. 1 and 47]. Samsung has sued All Pro
and four of Samsung’s former employees (hereinafter referred to as
“Employee Defendants”) claiming (1) violations of state and federal
trademark infringement laws, (2) violations of the RACKETEER
INFLUENCED CORRUPT ORGANIZATIONS ACT, (3) breach of
employment contracts, (4) breach of fiduciary duties, (5) aiding and
abetting breach of fiduciary duties, (6) tortious interference with
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contracts, (7) civil conspiracy, and (8) misappropriation under the TEXAS
TRADE SECRETS ACT. In its Complaint, Samsung sets forth very
specific and detailed factual allegations that purportedly support the
causes of action it has brought against the Defendants.
Dkt. No. 86 at 5 (emphasis removed).
All Pro explains that, “[o]ver the past year, the parties have exchanged and
responded to a considerable number of written discovery requests” but that “no
depositions have been taken and the discovery process has been at a standstill for some
time.” Id. “Since All Pro filed its first Motion to Compel on May 24, 2016, the parties
have made several efforts to resolve their discovery disputes but have been unable to
reach an agreement on all issues.” Id.
All Pro reports that, “[o]n December 28, 2016, the Court entered an Order
‘statistically terminating’ All Pro’s pending Motion to Compel despite the fact that
there many outstanding discovery issues” and that, “[a]s a result, All Pro files this
Second Motion to Compel, specifically setting forth the remaining areas of
disagreement regarding Samsung’s responses to All Pro’s First Requests for Production
and First Set of Interrogatories, and to address new areas of disagreement regarding
Samsung’s responses to All Pro’s Second Requests for Production and Third Requests
for Production.” Id. at 6 (emphasis removed).
According to All Pro, “the parties continue to disagree regarding the objections
Samsung has asserted to All Pro’s requests, the adequacy of Samsung’s responses to
several requests, the sufficiency and completeness of Samsung’s document production,
and whether Samsung is permitted to withhold certain key documents (that Samsung
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admits are not privileged or protected) until after depositions have been taken in this
case,” and, “these issues will not be resolved until the Court intervenes.” Id. More
specifically, All Pro contends that:
•

Samsung must remove improper assertions of privilege in response to All Pro’s
First Request for Production Nos. 80 and 81 and cannot withhold materials until
after depositions;

•

Samsung’s overbreadth, burdensomeness, relevance, and disproportionality
objections to All Pro’s First Request for Production Nos. 18-21, 46, 47, 51-53, 55,
58, 59, 82, 84-86, 94, and 96 must be overruled;

•

Samsung’s objections that requests “call for a legal conclusion” in response to All
Pro’s First Request for Production Nos. 61-73 should be overruled;

•

Samsung responses to All Pro’s First Request for Production Nos. 3-9, 11, 15, 19,
21, 30, 37, 39, 40-54, 56, 58, 59, 73-77, 87-88, and 97 fail to explain whether
responsive documents exist, whether it has produced responsive documents, and
whether any non-privileged documents have been withheld;

•

Samsung’s overbreadth, burdensomeness, and scope objections to All Pro’s
Second Requests for Production Nos. 18 and 22-30 must be overruled;

•

Samsung must remove improper assertions of privilege in response to All Pro’s
Third Requests for Production Nos. 1-12, 15, 17, 19, 20, 22-37, and 39-41 and
cannot withhold materials until after depositions;

•

Samsung’s objections of overbreadth, burdensomeness, and disproportionality
to All Pro’s Third Requests for Production Nos. 13 and 14 must be overruled;
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•

Samsung’s objections to All Pro’s Third Requests for Production Nos. 1-9, 13-14,
18, 25-32, 35-37, 39, and 40 that the documents are “equally available” to
defendants should be overruled;

•

Samsung must remove its unfounded assertion of privilege in response to All
Pro’s Third Requests for Production No. 21;

•

Samsung’s objections to Interrogatory No. 1 are improper and its answer is
incomplete;

•

Samsung’s objections to Interrogatory No. 2 are improper as All Pro is entitled
to the requested information;

•

Samsung’s objections to Interrogatory No. 4 are improper and its answer is
incomplete;

•

Samsung’s answers to Interrogatory Nos. 5, 6, 7, and 8 are incomplete;

•

Samsung’s objections to Interrogatory No. 9 are improper and its answer is
incomplete; and

•

Samsung’s objections to Interrogatory No. 11 are improper.

Dkt. No. 86 at 8-23.
All Pro “requests that the Court enter an order that: 1. overrules Samsung’s
improper objections and compels Samsung to amend its responses accordingly; 2.
compel Samsung to state in its responses whether it has produced responsive
documents; 3. compels Samsung to fully respond to the requests; and 4. compels
Samsung to produce any and all responsive, non-privileged documents, all to occur
within fourteen (14) days of the date of the Court’s order.” Dkt. No. 85 at 2; see also
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Dkt. No. 86 at 23 (“For the foregoing reasons, All Pro respectfully requests that the
Court enter an order overruling Samsung’s improper objections, compelling Samsung
to amend supplement its discovery responses to remove such objections, compelling
Samsung to clarify whether it has produced responsive documents, [compelling
Samsung] to produce all non-privileged, responsive documents by a date certain, and
compelling Samsung to provide complete discovery responses and produce
non-privileged, responsive documents by a date certain.”).
Samsung responds that “All Pro filed its [Second MTC] despite the fact that
Samsung notified All Pro that it was preparing amended discovery responses that it
would soon serve” and that “Samsung, in fact, served the amended responses the day
after All Pro filed its [Second MTC], but All Pro has not amended its [Second MTC] to
address them.” Dkt. No. 96 at 1. Samsung further contends that “All Pro’s [Second
MTC] is notable for what it spends little time doing – that is, addressing the content
of its discovery requests to show how they seek discoverable information or describing
the bases for Samsung’s objections” – and that “All Pro instead resorts to generalized
complaints about large groups of discovery requests that it attempts to support with
conclusory assertions” but “has failed to meet its burden to prove it seeks discoverable
information.” Id.
According to Samsung, its “objections are well supported by the law and the
facts, but Samsung has nonetheless withdrawn many in view of the fact that it
subsequently determined that it is not withholding documents based on an objection.”
Id. Samsung contends that its “remaining objections are supported by the facts and
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law,” where “All Pro’s discovery requests often exceed the scope of permissible
discovery and are clearly designed to impose exorbitant costs on Samsung to collect,
review, and produce documents that have little or no relevance to this case or are
duplicative of documents All Pro has obtained from a third party. Put simply, All Pro’s
sweeping requests are not proportional to the needs of the case and are an attempt to
impose the burden on Samsung to prove obviously improper discovery should not be
permitted.” Id.
Finally, Samsung explains that, while “most of All Pro’s complaints concern the
appropriateness of Samsung’s objections, and not the content of Samsung’s document
production,” “[t]he only items specifically identified in All Pro’s [Second MTC] as
having not been produced are certain witness statements and associated documents.”
Id. at 2. Samsung notes that it “has filed a Motion for Limited Protective Order with
this Response asking the Court to adopt the analysis of other courts that would permit
the production of the witness statements after Defendants’ depositions so Samsung
may obtain their unrefreshed recollection of the events at issue” and that “[o]ther
documents pertaining to those statements are on Samsung’s Privilege Log, which All
Pro has not raised in its” Second MTC. Id. “Samsung requests that the Court sustain
Samsung’s remaining objections and deny All Pro’s” Second MTC. Id.
In the MPO, Samsung explains that All Pro’s Second MTC “asks the Court to
order Samsung to produce recorded witness statements of the employee defendants
resulting from Samsung’s presuit internal investigation into employee theft.” Dkt. No.
97 at 1. According to Samsung, during its “internal investigation of the theft of
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Samsung parts and equipment by its employees, and in anticipation of litigation
resulting from the findings of its investigation, Samsung recorded conversations and
obtained written statements from Defendants Yang Kun ‘Michael’ Chung, Thomas
Porcarello, Yoon-Chul ‘Alex’ Jang, and Jin-Young Song (collectively, the ‘Terminated
Employees’).” Id. at 1-2.
“Samsung requests a limited protective order permitting Samsung to delay the
production of the videotaped interviews of the Terminated Employees pursuant to Rule
26(c) of the Federal Rules of Civil Procedure.” Id. at 2. According to Samsung, “[g]ood
cause exists for, and the interest of justice requires, the Court to delay the production
of the videotaped interviews of the Terminated Employees until after they have been
deposed so that Samsung may obtain the benefit of an unrefreshed recollection of the
Terminated Employees.” Id. “Samsung further requests that the Court delay
production to ensure the videotaped interviews are not shared among the Terminated
Employees before they are deposed, which would inevitably influence the testimonies
of the Terminated Employees, provide the Terminated Employees the opportunity to
coordinate stories, and otherwise frustrate Samsung’s ability to learn the truth.” Id.
In the MPO, Samsung further notes that All Pro’s Second MTC “also asks to
compel the production of documents such as reports or collections of data resulting
from the investigations” and “complains about Samsung’s assertion of privilege in
response to various requests that ask for documents that relate to allegations in
Samsung’s Complaint.” Id. at 5. Samsung contends that, “[i]n addition to witness
statements, these requests encompass plainly privileged documents, such as internal
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reports about the results of the investigation that were prepared in anticipation of this
lawsuit”; that “[t]hese privileged documents have been disclosed on Plaintiff’s First
Amended Privilege Log”; that “All Pro does not move to compel the production of any
specific items on the Privilege Log”; and that “Samsung’s assertion of privilege in
response to the requests identified in the [Second MTC] is proper,” where “[p]rivilege
items are expressly outside the scope of permissible discovery” and, “[a]lthough the
Rules make some exception if the privilege material is ‘otherwise discoverable’ under
Rule 26(b)(1), All Pro must also show that it has a substantial need for the materials
to prepare its case and cannot, without undue hardship, obtain their substantial
equivalent,” which it has “made no attempt to meet its burden to show.” Id. at 5-6.
And, in a footnote, Samsung explains that “[t]here were recorded interviews of
Samsung employees other than the Terminated Employees in connection with
Samsung’s investigation that uncovered the employee theft and conduct at issue in this
lawsuit”; that “[t]he scope of the interviews of these other employees was much broader
than the allegations and events at issue in this case”; that “[m]ost, if not all, of these
interviews were conducted in Korean”; and that “[p]roducing all of the interviews
conducting during this extremely broad investigation would disclose confidential
information pertaining to Samsung’s business practices entirely unrelated to this case,
and would include information that has nothing to do with this litigation.” Id. at 5 n.1
Samsung contends that it “would also incur the burden of having to translate these
interviews from Korean into English, imposing additional, unnecessary costs simply
to have a copy of interviews produced in this litigation.” Id. “Samsung requests
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protection from the production of any interviews other than the interviews of the
Terminated Employees.” Id.
Invoking Federal Rules of Civil Procedure 26(b)(3)(C) and 26(c), Song opposes
the MPO “that seeks to delay Samsung’s production of requested copies of written
statements, contemporaneous recordings, transcriptions and translations of interviews
of and statements made by Song and Defendants Chung, Porcarello, and Jang, as well
as other, but as-yet unnamed other employees.” Dkt. No. 102 at1. Song contends that
preventing or delaying access to the Witness Statements defeats what courts recognize
as the paramount goals of transparency, collaboration, and efficiency in the discovery
process. See id. Song reports that he has outstanding discovery requests to Samsung
seeking these materials, including witness statements by Song. See id. at 2.
Song further explains that the United States Court of Appeals for the Fifth
Circuit has recognized that Rule 26(b)(3)(C) makes a party's statement discoverable
as a right unless the party seeking to withhold production shows good cause by offering
proof of specific facts, not merely argument or conclusions. See id. at 2-3 (citing Miles
v. M/V Mississippi Queen, 753 F.2d 1349, 1351 (5th Cir. 1985); United States v.
Garrett, 571 F.2d 1323, 1325 (5th Cir. 1978)).
Song contends that Samsung’s MPO “offers no competent evidence, only
assumptions and conclusory statements.” Id. at 3. According to Song,
Samsung’s live First Amended Complaint reflects only the barest of
allegations that identify Song by name – as opposed to allegations against
the employee defendants as a group. For example, after identifying him
as a[n] individual party, Samsung raises allegations that specifically
name Song in only about 7 (short) paragraphs of their 152 paragraph
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Complaint, including allegations about admissions he supposedly made
in his Witness Statements. This highlights the substantive nature of
Song’s Witness Statements, and Song’s legitimate interest in discovering
them. By withholding the Witness Statements – including the Witness
Statements that include references to Song by others – Samsung seeks to
offensively invoke “protection” to keep what Samsung admits is
substantive evidence from Song until after he is deposed. That would be
tantamount to discovery “by ambush.”
Id.
Song further argues that Samsung has not made the required Rule 26(c)
showing for a protective order, where “Samsung offers no evidence showing that
production now of the Witness Statements will cause Samsung annoyance,
embarrassment, oppression or undue burden or expense, as contemplated by the Rule.”
Id. “Without offering evidence, Samsung argues that it is entitled to depose Song and
the other employee defendants without those witnesses ‘refreshing their recollection’
of their prior alleged Witness Statements so that they cannot ‘tailor’ their testimony,”
which, according to Song, “appears to be a euphemistic, speculative and conclusory way
of suggesting that Song and others will be dishonest if they have their Witness
Statements before being deposed, that withholding the Witness Statements will
encourage them [to] testify honestly or allow Samsung to catch them in a lie.” Id. at 3-4
(citations omitted). Song urges the Court to “decline either to (1) presume the
dishonesty of Song or the other witnesses or their respective counsel who are officers
of the Court or (2) adopt a rule that allows parties to freely withhold documents from
production and to randomly police discovery based on the arbitrary perception of a

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party, without cause, justification, or notice.” Id. at 4 (internal quotation marks
omitted).
“For the sake of fairness and an open, transparent, efficient discovery process,
Song asks that the Court deny Samsung’s Motion for Limited Protective Order, require
prompt production of the Witness Statements, and for such other relief to which Song
is entitled.” Id.
In response to the MPO, All Pro explains that, “[w]hile Samsung has
supplemented its discovery responses, produced approximately 11,000 additional
documents, and filed its Response to Defendant All Pro Distributing, Inc.’s Second
Motion to Compel and Brief in Support [Dkt. 96], it continues to withhold the
Employee Defendants’ statements and recorded interviews.” Dkt. No. 104 at 3. “It also
seeks to withhold additional Samsung employee statements despite conceding that
such statements contain information responsive to All Pro’s discovery requests,” and,
All Pro notes, “the statements that Samsung seeks to withhold are not statements of
All Pro or All Pro employees.” Id.
All Pro contends that, “[c]ontrary to the courts’ interest in judicial economy and
cooperative discovery, Samsung asks this Court to enter a protective order that would
allow Samsung to withhold the production of the witness statements and interviews
of the Employee Defendants and other Samsung employees until after the Employee
Defendants have been deposed.” Dkt. No. 104 at 1. According to All Pro, “Samsung
takes this position even though many of their key allegations against All Pro are based
on these statements and interviews” – “[i]n other words, Samsung would go into those
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depositions, fully prepared with all available information, while All Pro would be
completely unaware of what was said and what was asked during those interviews or
statements, thus depriving All Pro of the ability to properly and adequately defend
itself during these depositions.” Id. “It would also prevent All Pro from taking
meaningful depositions of the Employee Defendants” and would put “Samsung at a
significant tactical advantage which is unfairly prejudicial to the rights of All Pro.” Id.
at 1-2.
All Pro argues that “Samsung has filed the [MPO] in order to gain a tactical
advantage in this litigation,” where “[t]here are currently six parties in this case,
Plaintiff Samsung and Defendants Yang Kun “Michael” Chung, Thomas Porcarello,
Yoon-Chul “Alex” Jang, Jin-Young Song, and All Pro” and where “All Pro is the only
party who was not present for the investigations and employee interviews that
preceded this suit.” Id. at 3-4. “Thus, by withholding the statements and interviews,
Samsung attempts to limit All Pro’s knowledge of the serious allegations being made
against All Pro to the factual allegations in Plaintiff’s First Amended Complaint.”
Id. at 4. According to All Pro, “while Samsung seemingly relies on the results of its
investigation, including information it claims to have gathered from the Employee
Defendants and non-party Samsung employees, All Pro is left in the dark. Without
these statements, All Pro cannot adequately formulate a defense or prepare for the
Employee Defendants’ upcoming depositions; All Pro’s ability to conduct a thorough
and proper deposition of Samsung would be equally frustrated.” id. at 4-5.

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According to All Pro, “Samsung’s position, both with respect to the objections
asserted in its discovery responses, and in furtherance of the Motion for Limited
Protective Order, are without legal merit,” where “Samsung has cited no legal
authority for the position that the witness statements and recorded interviews can be
withheld from All Pro.” Id. at 2 (emphasis removed). “Importantly, the Employee
Defendants are not seeking production of the statements and interviews. All Pro is
making the request because the content of the statements and interviews is important
to All Pro’s defense, e.g., preparing for witness and party depositions, identifying
responsible third parties, identifying additional affirmative defenses, and assessing
whether additional motions are necessary.” Id. at 7.
“To the contrary, there is ample legal authority to support All Pro’s position that
the withholding of these witness statements and recorded interviews is improper.” Id.
at 2. All Pro contends that, under Federal Rule of Civil Procedure 26(a)(1)(A)(ii), All
Pro is entitled to immediate production of the witness statements where “Samsung
does not claim that the statements would be used solely for impeachment” and “has
cited statements allegedly made during its investigation as the basis for the instant
suit” and “concedes the statements also have substantive value.” Id. at 7-8.
All Pro further asserts that Samsung’s claim that “delayed production is
warranted” is baseless because “all of the defendants are represented by separate
counsel,” such that, “[i]f the Employee Defendants want their own statements, they can
request them from Samsung,” and because “producing the Employee Defendants’
statements to All Pro will not affect the testimony of the Employee Defendants.” Id. at
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8. All Pro suggests that, “[t]o the extent the Court finds merit in Samsung’s concern
about the Employee Defendants’ access to their statements, the Court could require
that the statements only be produced to All Pro,” but All Pro contends that it “should
not be prevented from preparing its defense and for upcoming depositions.” Id. at 8-9.
And, All Pro contends, “[n]ot only is Plaintiff’s motion contrary to the purpose
of discovery, but also runs contrary to the principle of judicial economy, as these
witnesses will almost certainly need to be deposed for a second time after their witness
statements are produced.” Id. at 2; see also id. at 9.
In any event, All Pro contends that “Samsung has failed to meet its burden –
Samsung cannot demonstrate good cause. In fact, Samsung cannot cite to a single case
in support of its request for delay. Nor can Samsung overcome All Pro’s arguments in
support of its Second MTC] or in response to the” MPO. Id. at 5. “Accordingly, the
Court should deny Plaintiff’s [MPO] and order the immediate production of all
responsive documents.” Id.
And, All Pro notes, in a footnote in its MPO, Samsung “also references ‘recorded
interviews of Samsung employees other than the Terminated Employees [Employee
Defendants] in connection with Samsung’s investigation’ regarding the allegations in
Samsung’s lawsuit.” Id. at 9 (quoting Dkt. No. 97 at 5 n.1). “Samsung seeks to withhold
these statements as well because the interviews were mostly conducted in Korean,
contain some information unrelated to the lawsuit, contain some confidential business
information, and would have to be translated.” Id. (emphasis removed). All Pro asserts
that “Samsung has also failed to demonstrate good cause for why the additional
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statements should be withheld” where it “admits the additional statements have value
and has wholly failed to show how the request is not proportional to the needs of the
case.” Id. at 10. “Accordingly, All Pro is entitled to the production of these statements
in order to determine whether any of the other Samsung employees’ statements
contradict those allegedly provided by the Employee Defendants and/or would
otherwise bolster All Pro’s defense.” Id.
All Pro requests that the Court deny the MPO and “require the immediate
production of the Employee Defendants’ statements and witness interviews as well as
all other employee statements from Samsung’s investigation into the alleged conduct
at the heart of this suit.” Id. at 10.
In reply in support of its Second MTC, All Pro explains that, “[f]or nearly one
year, All Pro has been engaged in a challenging pursuit to obtain information and
documents from Plaintiff Samsung Electronics America, Inc. [] that will enable All Pro
to comprehend the appalling claims Samsung has asserted against it in this suit.” Dkt.
No. 105 at 1. All Pro reports that “Samsung claims it acquired information to
incriminate All Pro during a comprehensive audit investigation it conducted prior to
filing this suit” and asserts that, “[g]iven the precise and detailed allegations set forth
in Samsung’s First Amended Complaint [], that purportedly support its causes of
action, which All Pro’s discovery requests specifically inquire, it is inconceivable that
Samsung is incapable of expounding on its allegations in response to Interrogatories
and unable to produce documents to support its factual assertions.” Id. at 1-2. All Pro
notes that, “[i] its Response to All Pro’s Second Motion to Compel, Samsung suggests
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that All Pro was not justified in filing its discovery motions and that this Second
Motion was not necessary,” but, All Pro contends, “All Pro has been forced to take part
in a needless battle to get the responses and materials it has received from Samsung
to date and this Motion was absolutely necessary”:
Samsung produced its first set of documents to the parties in April
2016, four months after it filed its suit. This first production was
uneventful as it consisted of one individual Defendant’s 51-page
employment file. By May 2016, Samsung produced approximately 800
additional pages of documents that contained the contents of the other
three individual Defendants’ employment files, Samsung’s employee
handbooks, and contracts between Samsung and All Pro, amongst other
non-implicating documents.
All Pro was disappointed by Samsung’s evasive and meager
responses to its first set of discovery requests. As a result, All Pro reached
out to Samsung’s counsel to discuss the deficiencies of Samsung’s
responses. In May 2016, All Pro sent Samsung a detailed letter
specifically identifying the discovery objections and assertions of privilege
that All Pro believes are improper, as well as the discovery responses that
All Pro believes are inadequate or non-responsive. After receiving no
response to its letter, All Pro filed its first Motion to Compel on May 24,
2016 [Dkt. 42]. The Court encouraged the parties to work together to
resolve the discovery disputes and the parties attempted to do so.
Shortly after All Pro filed its first Motion to Compel, Samsung
began producing documents that were relevant to its allegations against
All Pro. The parties continued to engage in discussions to resolve the
discovery issues. By the end of July 2016, Samsung had produced
approximately 3,200 additional pages of documents. At the end of October
2016, Samsung produced approximately 9,500 pages of documents.
Because many issues were still outstanding, on February 2, 2017,
All Pro filed its Second Motion to Compel [Dkt. 85].
Id. at 2-3.
All Pro explains that, “[d]espite the numerous discovery disputes that remained,
All Pro received no additional information or documents from Samsung until February
23, 2017, the day of Samsung’s extended deadline to file its Response to All Pro’s
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Second Motion,” on which date “Samsung submitted amended discovery responses to
All Pro and mailed nearly 12,000 pages of documents on a CD.” Id. at 3.
“All Pro quickly reviewed the additional 12,000 pages of documents and
amended discovery responses, and worked diligently to narrow the issues for the
Court” and now withdraws from its Second MTC “the following issues:
• Interrogatory Nos. 4, 5, 8, 11;
• First Request for Production Nos. 10, 14, 18-21, 30, 45, 46, 51-55, 72, 82, 84,
86, 87, 88, 91, 96, 97;
• Second Request for Production Nos. 18, 24, 25, 26, 27; and
• Third Request for Production Nos. 13, 14, 18, 21.
Id.
All Pro contends that “[t]he discovery issues that remain in dispute and require
Court intervention can be categorized into the following categories:
1. Samsung has improperly withheld key responsive documents and
refuses to produce until after depositions have been taken. (First Request
for Production Nos. 2-9, 11, 12, 13, 15, 19, 39-44, 48-51, 56-60, 60-71, 73,
80, 81; and Third Request for Production Nos. 1-12, 15, 17, 19, 20, 22-37,
39-41.)
2. Samsung has unreasonably limited the time and scope of its search for
responsive documents. (First Request for Production Nos. 47, 85, 94; and
Second Request for Production No. 23.)

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3. Samsung has provided inadequate, insufficient, or incorrect responses.
(Interrogatory Nos. 1, 2, 6, 7, 9; First Request for Production Nos. 37, 47,
74-77; and Second Request for Production Nos. 22, 23, 28, 29, 30.)
Id. at 3-4.
“All Pro respectfully requests that the Court enter an order overruling
Samsung’s improper objections, compelling Samsung to amend [and] supplement its
discovery responses to remove such objections, compelling Samsung to clarify whether
it has produced responsive documents, to produce all non-privileged, responsive
documents by a date certain, and compelling Samsung to provide complete discovery
responses and produce non-privileged, responsive documents by a date certain.” Id. at
7.
Legal Standards
“Unless otherwise limited by court order, ... [p]arties 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); accord Booth v. City of Dallas, 312
F.R.D. 427, 433 (N.D. Tex. 2015).

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Federal Rule of Civil Procedure 37(a) governs motions to compel discovery
responses. Rule 37(a)(3)(B) provides that a party seeking discovery may move for an
order compelling production or answers against another party when the latter has
failed to produce documents requested under Federal Rule of Civil Procedure 34 or to
answer interrogatories under Federal Rule of Civil Procedure 33. See FED. R. CIV. P.
37(a)(3)(B)(iii)-(iv). For purposes of Rule 37(a), “an evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer, or respond.” FED.
R. CIV. P. 37(a)(4).
In response to a Rule 34 request, “[f]or each item or category, the response must
either state that inspection and related activities will be permitted as requested or
state with specificity the grounds for objecting to the request, including the reasons.”
FED. R. CIV. P. 34(b)(2)(B). General or boilerplate objections are invalid, and
“[o]bjections to discovery must be made with specificity, and the responding party has
the obligation to explain and support its objections. Amended Federal Rule of Civil
Procedure 34(b)(2) effectively codifies this requirement, at least in part: ‘An objection
must state whether any responsive materials are being withheld on the basis of that
objection. An objection to part of a request must specify the part and permit inspection
of the rest.’” OrchestrateHR, Inc. v. Trombetta, 178 F. Supp. 3d. 476, 507 (N.D. Tex.
2016) (citing Heller v. City of Dallas, 303 F.R.D. 466, 483 (N.D. Tex. 2014); quoting
FED. R. CIV. P. 34(b)(2)(C)), objections overruled, No. 3:13-cv-2110-KS, 2016 WL
5942223 (N.D. Tex. Oct. 13, 2016). In sum, “[a] party served with written discovery
must fully answer each interrogatory or document request to the full extent that it is
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not objectionable and affirmatively explain what portion of an interrogatory or
document request is objectionable and why, affirmatively explain what portion of the
interrogatory or document request is not objectionable and the subject of the answer
or response, and affirmatively explain whether any responsive information or
documents have been withheld.” Heller, 303 F.R.D. at 485.
And, in response to an interrogatory under Rule 33, “[e]ach interrogatory must,
to the extent it is not objected to, be answered separately and fully in writing under
oath”; “[t]he grounds for objecting to an interrogatory must be stated with specificity”;
and “[a]ny ground not stated in a timely objection is waived unless the court, for good
cause, excuses the failure.” FED. R. CIV. P. 33(b)(3)-(4).
The party resisting discovery must show specifically how each discovery request
is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). A party resisting discovery must show
how the requested discovery is overly broad, unduly burdensome, or oppressive by
submitting affidavits or offering evidence revealing the nature of the burden. See
Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005); see also S.E.C. v.
Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“A party asserting undue burden typically
must present an affidavit or other evidentiary proof of the time or expense involved in
responding to the discovery request.”). “Failing to do so, as a general matter, makes
such an unsupported objection nothing more than unsustainable boilerplate.” Heller,
303 F.R.D. at 490.

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And the Court has previously explained that “responding to interrogatories and
document[] requests ‘subject to’ and/or ‘without waiving’ objections is manifestly
confusing (at best) and misleading (at worse), and has no basis at all in the Federal
Rules of Civil Procedure”; “this manner of responding to a document request or
interrogatory leaves the requesting party guessing and wondering as to the scope of the
documents or information that will be provided as responsive will be”; “outside of the
privilege and work product context..., responding to a document request or
interrogatory ‘subject to’ and ‘without waiving’ objections is not consistent with the
Federal Rules or warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law”; “a
responding party has a duty to respond to or answer a discovery request to the extent
that it is not objectionable” and “must describe what portions of the interrogatory or
document request it is, and what portions it is not, answering or responding to based
on its objections and why”; “if the request is truly objectionable – that is, the
information or documents sought are not properly discoverable under the Federal
Rules – the responding party should stand on an objection so far as it goes”; and, “as
a general matter, if an objection does not preclude or prevent a response or answer, at
least in part, the objection is improper and should not be made.” Carr v. State Farm
Mutual Automobile Insurance Company, 312 F.R.D. 459, 470 (N.D. Tex. 2015) (quoting
Heller, 303 F.R.D. at 487-88 (internal quotation marks omitted)).
Further, “as a general rule, when a party fails to object timely to interrogatories,
production requests, or other discovery efforts, objections thereto are waived.” In re
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United States, 864 F.2d 1153, 1156 (5th Cir. 1989). “If a party fails to timely respond
in writing after being served with a request for production of documents, it is
appropriate for the Court to find that the party’s objections are waived, unless the
court finds good cause and excuses [that] failure.” Richmond v. SW Closeouts, Inc., No.
3:14-cv-4298-K, 2016 WL 3090672, at *5 (N.D. Tex. June 2, 2016); accord Henderson
v. Union Pac. R.R. Co., No. CV 15-0669, 2016 WL 5936889, at *2 (W.D. La. Oct. 11,
2016) (“Although Rule 34 does not provide that untimely objections are waived, the
Fifth Circuit has found that the waiver provision applies equally to Rule 34.” (Citing
In re United States, 864 F.2d at 1156)). And, even where the responding party has
timely served some objections, this waiver extends to any grounds not stated in a
timely objection. See FED. R. CIV. P. 34(b)(2)(B); cf. FED. R. CIV. P. 33(b)(4) (“Any ground
not stated in a timely objection is waived unless the court, for good cause, excuses the
failure.”).
A party who has objected to a discovery request then must, in response to a
motion to compel, urge and argue in support of its objection to a request, and, if it does
not, it waives the objection. See OrchestrateHR, 178 F. Supp. 3d at 507 (citing Dolquist
v. Heartland Presbytery, 221 F.R.D. 564, 568 (D. Kan. 2004); Cotracom Commodity
Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999)).
Federal Rules of Civil Procedure Rules 26(b) and 34 have been amended,
effective December 1, 2015. Rule 26(b)(1) now provides that, “[u]nless otherwise limited
by court order, the scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
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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 amendments to Rules 26 and 34 govern in all proceedings in civil cases
thereafter commenced and, insofar as just and practicable, in all proceedings then
pending. The Court finds that applying the standards of Rules 26 and 34, as amended,
in resolving the Second MTC and the MPO is both just and practicable.
For the reasons the Court has previously explained, the Court concludes that the
amendments to Rule 26 do not alter the burdens imposed on the party resisting
discovery discussed above. See Carr, 312 F.R.D. at 463-69. Rather, just as was the case
before the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a
court can – and must – limit proposed discovery that it determines is not 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 – and the
court must do so even in the absence of a motion. See Crosby v. La. Health Serv. &
Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011). Thus, as amended, Rule 26(b)(2)(C)
provides that, “[o]n motion or on its own, the court must limit the frequency or extent
-24-

of discovery otherwise allowed by these rules or by local rule if it determines that: (i)
the discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information
by discovery in the action; or (iii) the proposed discovery is outside the scope permitted
by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).
But a party seeking to resist discovery on these grounds still bears the burden
of making a specific objection and showing that the discovery fails the proportionality
calculation mandated by Federal Rule of Civil Procedure 26(b) by coming forward with
specific information to address – insofar as that information is available to it – 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.
The party seeking discovery, to prevail on a motion to compel, may well need to
make its own showing of many or all of the proportionality factors, including the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, and the importance of
the discovery in resolving the issues, in opposition to the resisting party’s showing.
And the party seeking discovery is required to comply with Rule 26(b)(1)’s
proportionality limits on discovery requests; is also subject to Federal Rule of Civil
Procedure 26(g)(1)’s requirement to certify “that to the best of the person’s knowledge,
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information, and belief formed after a reasonable inquiry: ... (B) with respect to a
discovery request..., it is: (i) consistent with these rules and warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law, or
for establishing new law; (ii) not interposed for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii)
neither unreasonable nor unduly burdensome or expensive, considering the needs of
the case, prior discovery in the case, the amount in controversy, and the importance
of the issues at stake in the action”; and faces Rule 26(g)(3) sanctions “[i]f a
certification violates this rule without substantial justification.” FED. R. CIV. P.
26(g)(1)(B), 26(g)(3); see generally Heller, 303 F.R.D. at 475-77, 493-95.
But the amendments to Rule 26(b) do not alter the basic allocation of the burden
on the party resisting discovery to – in order to successfully resist a motion to compel
– specifically object and show that the requested discovery does not fall within Rule
26(b)(1)’s scope of relevance (as now amended) or that a discovery request would
impose an undue burden or expense or is otherwise objectionable. See McLeod, 894
F.2d at 1485; Heller, 303 F.R.D. at 483-93.
As amended, effective December 1, 2015, Federal Rule of Civil Procedure 26(c)(1)
authorizes protective orders, for good cause shown, “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one or
more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms,
including time and place or allocation of expenses, for the disclosure or discovery; (C)
prescribing a discovery method other than the one selected by the party seeking
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discovery; (D) forbidding inquiry into certain matters, or limiting the scope of
disclosure or discovery to certain matters; (E) designating the persons who may be
present while the discovery is conducted; (F) requiring that a deposition be sealed and
opened only on court order; (G) requiring that a trade secret or other confidential
research, development, or commercial information not be revealed or be revealed only
in a specified way; and (H) requiring that the parties simultaneously file specified
documents or information in sealed envelopes, to be opened as the court directs.” FED.
R. CIV. P. 26(c)(1).
“[T]he burden is upon [the party seeking the protective order] to show the
necessity of its issuance, which contemplates a particular and specific demonstration
of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int’l,
134 F.3d 302, 306 (5th Cir. 1998) (citation omitted). A protective order is warranted in
those instances in which the party seeking it demonstrates good cause and a specific
need for protection. See Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (5th Cir.
1990). And the United States Court of Appeals for the Fifth Circuit recently explained
that “[t]he federal courts have superimposed a somewhat demanding balancing of
interests approach to the Rule. Under the balancing standard, the district judge must
compare the hardship to the party against whom discovery is sought against the
probative value of the information to the other party. Courts also weigh relevant public
interests in this analysis.” Cazorla v. Koch Foods of Mississippi, L.L.C., 838 F.3d 540,
555 (5th Cir. 2016) (footnotes and internal quotation marks omitted); see also id. at 564

-27-

(“Rule 26(d) gives [the] court wide discretion to craft flexible and nuanced terms of
discovery.” (footnote omitted)).
The Court has broad discretion in determining whether to grant a motion for a
protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). “The
trial court is in the best position to weigh fairly the competing needs and interests of
parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel
is granted, or if the requested discovery is provided after the motion was filed, “the
court must, after giving an opportunity to be heard, require the party ... 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,” except that “the court must not order this payment if: (i) the movant filed the
motion before attempting in good faith to obtain the disclosure or discovery without
court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.”
FED. R. CIV. P. 37(a)(5)(A).
Federal Rule of Civil Procedure 37(a)(5)(B)-(C) further provides in pertinent part
that, “[i]f the motion is denied, the court may issue any protective order authorized
under Rule 26(c) and must, after giving an opportunity to be heard, require the
movant, the attorney filing the motion, or both to pay the party ... who opposed the
motion its reasonable expenses incurred in opposing the motion, including attorney’s
fees,” “[b]ut the court must not order this payment if the motion was substantially
-28-

justified or other circumstances make an award of expenses unjust,” and that, “[i]f the
motion is granted in part and denied in part, the court may issue any protective order
authorized under Rule 26(c) and may, after giving an opportunity to be heard,
apportion the reasonable expenses for the motion.” FED. R. CIV. P. 37(a)(5)(B)-(C).
Federal Rule of Civil Procedure 26(c)(3) provides that, in connection with a
motion under Rule 26(c) for a protective order, Federal Rule of Civil Procedure “37(a)(5)
applies to the award of expenses.” FED. R. CIV. P. 26(c)(3).
Discussion
I.

Samsung’s request to outright deny All Pro’s Second MTC
As a threshold matter, Samsung argues that All Pro’s Second MTC should be

denied outright because it failed to meet its initial burden to prove its discovery
requests are within the scope of discovery permitted by Rule 26(b)(1).
The Court disagrees with Samsung’s understanding of the burden on a motion
to compel.
As fully laid out above, contrary to Samsung’s explanation, under Fifth Circuit
law, the party resisting discovery must show specifically how each discovery request
is not relevant or otherwise objectionable. See McLeod, 894 F.2d at 1485 (quoting
Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (appeal involving denial of
a motion to compel)). That is true on a Rule 37(a) motion to compel no less than on a
26(c) motion for a protective order. See Merrill, 227 F.R.D. at 477 n.1 (“Defendant
argues that the McLeod case only addresses the parties’ burdens with respect to
motions for protective orders, and is therefore inapposite to the instant dispute. The
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Court disagrees. In McLeod, the Fifth Circuit found that: (1) it was not an abuse of
discretion for the trial court to find that the plaintiff's discovery requests were
relevant, given that the defendant had failed to identify any specific reasons for their
irrelevance; and (2) the defendant’s request for a protective order was without merit.
See McLeod, 894 F.2d at 1485.”).
And the 2015 amendments to Rule 26 did not change this allocation of burdens.
See Carr, 312 F.R.D. at 465-66 (“First, the Fifth Circuit’s holding in McLeod requiring
an objection by the resisting party was handed down in the face of then-existing Rule
26(b) provisions requiring a court, on a motion or on its own, to limit discovery based
on some of the same so-called proportionality factors in amended Rule 26(b)(1). And the
amendments do not change the essential text of Rule 26(c)(1), which the Fifth Circuit
has interpreted to place the burden on the moving party to specifically show good cause
and a specific need for protection. See Terra Int’l, 134 F.3d at 306; Landry, 901 F.2d at
435. Further, the textual amendments do not themselves suggest that, before discovery
requests must be answered or objected to or before discovery can be compelled under
Rule 37(a), the party seeking discovery must first come forward with evidence to show
that it is seeking discovery ‘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.’”).
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Rule 26(g)(1) does not impose on a party filing a motion to compel the burden to
show relevance and proportionality in the first instance. Rather, by signing the
discovery requests, the party serving discovery requests makes an affirmative
certification that the requests are not unreasonable or unduly burdensome or
expensive, considering the needs of the case, prior discovery in the case, the amount
in controversy, and the importance of the issues at stake in the action. If the requests
nevertheless fall outside the Rule 26(b)(1) scope of discovery, the serving party may
face Rule 26(g)(3) sanctions if it made the certification without substantial
justification. See FED. R. CIV. P. 26(g)(1)(B), 26(g)(3); Heller, 303 F.R.D. at 475-77
(“Rule 26(g) is thus designed to curb discovery abuse by explicitly encouraging the
imposition of sanctions. Because of the asserted reluctance to impose sanctions on
attorneys who abuse the discovery rules, Rule 26(g) makes explicit the authority judges
now have to impose appropriate sanctions and requires them to use it. But, even if an
attorney violates Rule 26(g)(1), a court may not – on a party’s motion or sua sponte –
impose Rule 26(g)(3) sanctions unless the certification violated Rule 26(g)(1) without
substantial justification. The United States Supreme Court has defined ‘substantially
justified’ to mean justified in substance or in the main – that is, justified to a degree
that could satisfy a reasonable person. ‘Substantial justification’ entails a reasonable
basis in both law and fact, such that there is a genuine dispute ... or if reasonable
people could differ [as to the appropriateness of the contested action]. Where Rule
26(g)(3) requires the Court to impose an appropriate sanction, [t]he nature of the
sanction is a matter of judicial discretion to be exercised in light of the particular
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circumstances. Although Rule 26(g)(3) sanctions are mandatory, Rule 26(g)(3)’s
mandate ... extends only to whether a court must impose sanctions, not to which
sanction it must impose.” (citations, internal quotation marks, and emphasis omitted)).
The Court does believe that there are threshold requirements for a proper Rule
37(a) motion to compel: It “must include a certification that the movant has made a
good faith effort to meet and confer regarding the specific discovery disputes at issue,
and to resolve them without court intervention, as required by Federal Rule of Civil
Procedure 37(a)(1) and Northern District of Texas Local Civil Rule 7.1; must attach a
copy of the discovery requests at issue (such as Rule 34 requests for production or
inspection, Rule 33 interrogatories, a transcript of deposition testimony, deposition
notice, or subpoena) and of the resisting party’s responses and objections to those
requests; must specifically and individually identify each discovery request in dispute
and specifically, as to each request, identify the nature and basis of the dispute,
including, for example, explaining ... how a response or answer is deficient or
incomplete, and ask the Court for specific relief as to each request; and must include
a concise discussion of the facts and authority that support the motion as to each
discovery request in dispute.” Harrison v. Wells Fargo Bank, N.A., No. 3:13-cv-4682-D,
2016 WL 1392332, at *7 (N.D. Tex. Apr. 8, 2016) (citing See FED. R. CIV. P. 7(b)(1); FED.
R. CIV. P. 37(a); N.D. TEX. L. CIV. R. 5.2(3); N.D. TEX. L. CIV. R. 7.1).
Further, as explained above, the party seeking the discovery, to prevail on a
motion to compel, may need to make its own showing of many or all of the
proportionality factors. But Rule 26(b)(1) “‘does not place on the party seeking
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discovery the burden of addressing all proportionality considerations.’” Carr, 312
F.R.D. at 467 (quoting FED. R. CIV. P. 26, 2015 comm. note). While it is a good practice
for a movant to explain the relevance and proportionality of its discovery requests, and
while a failure to appropriately address Rule 26(b)(1) proportionality factors may be
determinative in a proportionality analysis and result in the motion to compel being
denied on its merits, see id. at 463-69, “‘[t]he parties and the court have a collective
responsibility to consider the proportionality of all discovery and consider it in
resolving discovery disputes,” id. at 467 (quoting FED. R. CIV. P. 26, 2015 comm. note).
But the Court does not believe that, under Rules 26(b) and 26(g) and Fifth
Circuit law, the burden to demonstrate why requested discovery should not be
permitted shifts to a responding party only if and when the discovery’s proponent first
meets a threshold burden to prove that it is asking for documents within the scope
permitted by Rule 26(b)(1). That is, the Court disagrees with statements in other
district court decisions that, as part of a burden-shifting test, an initial burden lies
with the party moving to compel to show clearly that (as Rule 26(b)(1) now provides)
the information sought is relevant to any party’s claim or defense and proportional to
the needs of the case. See, e.g., Spiegelberg Mfg., Inc. v. Hancock, No. 3:07-cv-1314-G,
2007 WL 4258246, at *1 (N.D. Tex. Dec. 3, 2007); Export Worldwide, Ltd. v. Knight,
241 F.R.D. 259, 263 (W.D. Tex. 2006); see also Ashton v. Knight Transp., Inc., No.
3:09-cv-759-B, 2009 WL 4580801, at *1 (N.D. Tex. Dec. 4, 2009) (“To place the burden
of proving that the evidence sought is not reasonably calculated to lead to the discovery
of admissible evidence on the opponent of discovery is to ask that party to prove a
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negative. This is an unfair burden, as it would require a party to refute all possible
alternative uses of the evidence, possibly including some never imagined by the
proponent.” (internal quotation marks omitted)); cf. Staton Holdings, Inc. v. Russell
Athletic, Inc., No. 3:09-cv-419-D, 2010 WL 1372479 (N.D. Tex. Apr. 7, 2010).
II.

All Pro’s First Request for Production Nos. 2-9, 11, 12, 13, 15, 19, 39-44, 48-51,
56-60, 60-71, 73, 80, and 81 and All Pro’s Third Requests for Production Nos.
1-12, 15, 17, 19, 20, 22-37, and 39-41
In its Second MTC, All Pro contends that Samsung must remove improper

assertions of privilege in response to All Pro’s First Request for Production Nos. 80 and
81 and All Pro’s Third Requests for Production Nos. 1-12, 15, 17, 19, 20, 22-37, and
39-41 and cannot withhold materials until after depositions. All Pro reports that,
“[i]nitially, Samsung refused to produce any materials that were related to or resulted
from the audits and investigations, which ‘gave rise to this litigation,’ by asserting
attorney-client and work product privileges with respect to these materials” but,
“[w]hen All Pro argued that it would object to Samsung’s future use of these materials
to support its claims, Samsung eventually admitted that many of the materials are not
privileged, yet stated it would not produce these highly relevant, non-privileged,
responsive documents until after depositions have occurred.” Dkt. No. 86 at 8-9.
Samsung responds that federal law permits the Court to delay production of
witness statements until after depositions.
All Pro’s reply makes clear that what remains at issue as to First Request for
Production Nos. 2-9, 11, 12, 13, 15, 19, 39-44, 48-51, 56-60, 60-71, 73, 80, and 81 and
All Pro’s Third Requests for Production Nos. 1-12, 15, 17, 19, 20, 22-37, and 39-41 is
-34-

that “Samsung has improperly withheld key responsive documents and refuses to
produce until after depositions have been taken.” Dkt. No. 105 at 3. All Pro explains:
Samsung conducted a comprehensive audit investigation in the fall
of 2015, prior to filing this suit. As a result of the investigation, Samsung
created and collected numerous documents and materials that are highly
relevant to this suit and that Samsung intends to use as evidence in this
case. These materials include witness statements, transcripts of witness
interviews, recorded interrogations, reports, and collections of data that
purportedly support the specific factual allegations Samsung has asserted
in its Complaint. Significantly, the documents do not include any witness
statements of All Pro.
Many of All Pro’s discovery requests at issue seek documents that
support the verbatim allegations Samsung has set forth in specific
paragraphs of its Complaint. Samsung has admitted these investigation
materials are responsive to All Pro’s First Request for Production Nos.
2-9, 11, 12, 13, 15, 19, 39-44, 48-51, 56-60, 60-71, 73, and 80-81 and Third
Request for Production Nos. 1-12, 15, 17, 19, 20, 22-37, and 39-41 but
refuse to produce them at this time. Not only are these documents
responsive, but they appear to be the sole evidence Samsung has to
support most of the essential elements of Samsung’s causes of action
against All Pro. Nevertheless, Samsung is refusing to produce them to All
Pro.
As fully set forth in All Pro’s Response to Plaintiff’s Opposed
Motion for a Limited Protective Order, such gamesmanship in an effort
to gain a tactical advantage in this litigation is improper. [Dkt. 104].
Moreover, Samsung’s withholding of these documents runs contrary to
the interest of judicial economy, the purpose of discovery, and legal
authority.
Dkt. No. 105 at 4-5.
All Pro did not raise any issue as to its First Request for Production Nos. 2, 12,
13, 57, or 60 in its Second MTC, and it is too late to raise a new issue or argument for
the first time in reply. See Murillo Modular Grp., Ltd. v. Sullivan, No. 3:13-cv-3020-M,
2016 WL 6565756, at *3 (N.D. Tex. Nov. 2, 2016); Alvarez v. Aldi (Texas) LLC, No.
3:13-cv-4122-L, 2014 WL 3557435, at *2 (N.D. Tex. July 17, 2014); Allstate Ins. Co. v.
-35-

Interline Brands, Inc., 997 F. Supp. 2d 501, 505 (N.D. Tex. 2014); Springs Indus., Inc.
v. Am. Motorists Ins. Co., 137 F.R.D. 238, 239-40 (N.D. Tex. 1991).
As to the other requests at issue, Rule 26(a)(1) requires that, “[e]xcept as
exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a
party must, without awaiting a discovery request, provide to the other parties: (i) the
name and, if known, the address and telephone number of each individual likely to
have discoverable information – along with the subjects of that information – that the
disclosing party may use to support its claims or defenses, unless the use would be
solely for impeachment” and “(ii) a copy – or a description by category and location –
of all documents, electronically stored information, and tangible things that the
disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment .” FED. R. CIV. P.
26(a)(1)(A)(i)-(ii).
Further, “[w]hile statements of a party obtained by the opposing party might be
considered work product, [Federal Rule of Civil Procedure 26(b)(2)(C)] creates an
exception to the protection generally provided for work-product material and gives a
party an affirmative right to production of his own statements.” Miles, 753 F.2d at
1351. Rule 26(b)(2)(C) provides that “[a]ny party or other person may, on request and
without the required showing [under Federal Rule of Civil Procedure 26(b)(2)(A)],
obtain the person’s own previous statement about the action or its subject matter. If
the request is refused, the person may move for a court order, and Rule 37(a)(5) applies
to the award of expenses.” FED. R. CIV. P. 26(b)(3)(C). “A previous statement is either:
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(i) a written statement that the person has signed or otherwise adopted or approved;
or (ii) a contemporaneous stenographic, mechanical, electrical, or other recording – or
a transcription of it – that recites substantially verbatim the person's oral statement.”
Id. Under Rule 26(b)(3)(C), “a party’s statement [is] discoverable as of right.” Miles, 753
F.2d at 1351 (internal quotation marks and footnote omitted).
The Fifth Circuit has explained that Rule 26(b)(3)(C) is “mandatory, not
discretionary,” and that “[t]he right of a party to have his own statement ... is not
diminished when the district court suspects duplicity. The rule does not bend to the
discretion of the trial court. It allows no room for the weighing of pros and cons,
although the court has some latitude in determining the time when the statements
must be produced; the court may permit, for example, the party’s deposition to be
taken first.” Miles, 753 F.2d at 1351 (footnote omitted). The Court of Appeals noted
that the Advisory Committee Note to Rule 26(b) explains that “[i]n appropriate cases
the court may order a party to be deposed before his statement is produced, ... because
there is a legitimate interest in receiving a version of the party’s testimony which has
not been tailored to conform to an earlier statement.” Id. at 1351 n.3 (internal
quotation marks omitted).
The Court is persuaded by another court’s analysis of this exception that “a plain
reading of the Federal Rules indicates that a witness does not have to exhibit good
cause to obtain their own previous statements prior to deposition”; that “[a] party or
non-party has a right to inspect their previous statements regarding the incident in
question prior to deposition”; that “witnesses are entitled to obtain a copy of their
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statement prior to their deposition, unless good cause is shown”; and that “[t]he burden
is on the moving party to show good cause for delaying the production of a witness’
previous statement until after their deposition.” Bertucci Contracting Co., L.L.C. v.
M/V JULIE MARIE, Civ. A. No. 11-1328, 2013 WL 592889, at *1, *2 (E.D. La. Feb. 14,
2013).
While, “[i]n limited situations, a court may issue protective orders to delay the
production of a witness’ statement until after their deposition,” “such an order is
appropriate only when the moving party makes a particular and specific demonstration
of fact as distinguished from stereotyped and conclusory statements,” and “the burden
is placed on the withholding party to provide particular reasons for seeking the
deposition prior to their production of the statement.” Id. at *2 (internal quotation
marks omitted). “[C]ourts may only grant protective orders, which delay the production
of a witnesses’ statement until after their deposition, when the moving party has
demonstrated good cause.” Id. (internal quotation marks omitted). Thus,
Fifth Circuit case law and the applicable Federal Rules of Civil Procedure
clearly and unambiguously require the production of a party’s prior
statements ... before that party’s deposition, when those materials have
been requested in discovery and in the absence of a showing of good cause
of the specific and particularized type required in In re Terra. Concerning
a party’s statements, see Vinet v. F & L Marine Management, Inc., 2004
WL 3312007 (E.D. La. April 29, 2004) (citing, among other things, Fed.
R. Civ. P. 26(b)(3) and Miles v. M/V Mississippi Queen, 753 F.2d 1349,
1350-53, (5th Cir. 1985) (Judge Rubin explaining in Miles that the Rule
26(b)(3) requirement that a party's statement be produced upon request
is “mandatory, not discretionary,” that this “court’s refusal to order
production of the [plaintiff's] statements was erroneous,” and that “[a]
rule intended to prevent trial by ambush and to further adequate pretrial
preparation has been violated.... A district court’s failure to abide by the
literal dictate of the rule is clearly error and we so hold.”) (emphasis
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added)), Baggs v. Highland Towing, L.L.C., 1999 WL 539459 (E.D. La.
July 22, 1999). .... To permit plaintiff to withhold these materials from
discovery would be contrary to the binding authorities cited above and
would unnecessarily risk reversal. Other judges of this court, including
the presiding district judge in this case, have repeatedly avoided the error
plaintiff's position risks by requiring production of a party’s statements
... upon request and before the party is deposed.
Greater New Orleans Fair Housing Action Ctr., Inc. v. Ditta, Civ. A. No. 13-511, 2013
WL 5797728, at *2 (E.D. La. Oct. 28, 2013) (emphasis removed).
Here, as Song and All Pro have both persuasively explained, Samsung has not
shown good cause to withhold production of witness statements, transcripts of witness
interviews, and recorded interrogations – either from the defendants who actually
made the statements and were the subject of the interviews or from the other
defendants, including All Pro – until after depositions are taken. The relevance of this
discovery and its proportionality to the needs of the case is not in dispute. Both as to
the defendants who are entitled to production under Rule 26(b)(3) and as to All Pro,
which has properly requested these materials under Rule 34, Samsung “has failed to
articulate why this circumstance demonstrates that [these witnesses] would not testify
truthfully or would testify truthfully only because of the threat that [their] prior
statements might contradict [them],” and, despite its burden under Rule 26(c)(1),
Samsung “has provided the Court with no reason, other than a mere suspicion, that
providing [All Pro and the Employee Defendants] with [the witnesses’ statements],
which [the witnesses are each] entitled to under our Federal Rules, will result in
anything other than honest testimony.” Hill v. Hornbeck Offshore Servs., LLC, Civ. A.
No. 10-2121, 2011 WL 2550510, at *4 (E.D. La. June 27, 2011).
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At oral argument, Samsung’s counsel relied heavily on the reasoning in Gerber
v. Down East Community Hospital, 266 F.R.D. 29, 33-34 (D. Me. 2010), but the
discussion there involved e-mail correspondence with potential witnesses, which the
resisting party asserted was protected from disclosure as attorney work-product.
Samsung is not claiming work-product protection over the witness statements,
transcripts of witness interviews, and recorded interrogations at issue here.
Because Samsung has not provided suitable good cause basis for delaying the
production of the statements, All Pro’s Second MTC will be granted as to the witness
statements, transcripts of witness interviews, and recorded interrogations responsive
to All Pro’s First Request for Production Nos. 3-9, 11, 15, 19, 39-44, 48-51, 56, 58, 59,
61-71, 73, 80, and 81 and All Pro’s Third Requests for Production Nos. 1-12, 15, 17, 19,
20, 22-37, and 39-41, and Samsung’s MPO will be denied as to these materials, which
must be produced by March 17, 2017.
Likewise, the Court determines that Samsung has not met its burden to support
a protective order against production of recorded interviews of Samsung employees
other than the Terminated Employees that are responsive to some or all of All Pro’s
First Request for Production Nos. 3-9, 11, 15, 19, 39-44, 48-51, 56, 58, 59, 61-71, 73, 80,
and 81 and All Pro’s Third Requests for Production Nos. 1-12, 15, 17, 19, 20, 22-37, and
39-41. Although Samsung contends, without more, that those interviews may cover
matters in addition to the subject matter of Samsung’s allegations in this case and
would be burdensome to produce because they were conducted in Korean, Samsung has
not made the required particular and specific demonstration of fact to show that
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production of these interviews, which it admits include responsive and relevant
material, would be unduly burdensome or expensive or oppressive by submitting
affidavits or offering evidence revealing the extent of the burden. All Pro’s Second MTC
will be granted and Samsung’s MPO denied as to these recorded interviews of nonparty Samsung employees, which must be produced by March 21, 2017.
But Samsung has withheld related reports and legal memoranda, interview
notes, and collections of data, including summaries and findings, and listed these
documents on its privilege log as protected work product or privileged communication,
see Dkt. No. 97-1, and All Pro has not specifically addressed that assertion of
protection. Based on the showing that Samsung has made through its privilege log as
to those documents, the Court will deny All Pro’s Second MTC and grant Samsung’s
MPO as to the documents logged on Samsung’s privilege log.
III.

All Pro’s First Request for Production Nos. 3-9, 11, 15, 18-21, 30, 37, 39, 40-54,
55, 56, 58, 59, 73-77, 82, 84, 85, 86, 87-88, 94, 96 and 97, All Pro’s Second
Requests for Production Nos. 18 and 22-30, and All Pro’s Interrogatory Nos. 1,
2, 6, 7, and 9
All Pro contends that Samsung’s overbreadth, burdensomeness, relevance, and

disproportionality objections to All Pro’s First Request for Production Nos. 18-21, 46,
47, 51-53, 55, 58, 59, 82, 84, 85, 86, 94, and 96 must be overruled and that Samsung’s
overbreadth, burdensomeness, and scope objections to All Pro’s Second Requests for
Production Nos. 18 and 22-30 must be overruled. All Pro reports that, “[i]n response
to these requests, Samsung has asserted over-breadth and burdensomeness objections,
and stated that the requests exceed the ‘relevant scope of this litigation,’ which
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Samsung has narrowly defined to suit its own purposes.” Dkt. No. 86 at 10. All Pro
contends that “Samsung has failed to demonstrate that the above requests are in fact
overly broad or unduly burdensome”; that “Samsung’s narrow definition of relevance
ignores that it has made sweeping claims against All Pro and the Employee
Defendants, which charge, among other things, that All Pro and the Employee
Defendants engaged in a conspiracy to rig auctions conducted by Samsung, and that
All Pro improperly received advanced knowledge and trade secrets”; and that,
“[d]espite these broad and sweeping allegations, Samsung seeks to hamstring All Pro’s
defense of these claims by narrowly defining what is relevant for discovery purposes
and claiming that the requests are disproportional to Samsung’s multi-million dollar
claim.” Id. at 10-11.
Samsung responds that these objections are grounded in law and fact.
In its Second MTC, All Pro also contends that Samsung’s responses to All Pro’s
First Request for Production Nos. 3-9, 11, 15, 19, 21, 30, 37, 39-54, 56, 58-59, 73-77,
87-88, and 97 fail to explain whether responsive documents exist, whether it has
produced responsive documents, and whether any non-privileged documents have been
withheld. Samsung responds that it has amended its discovery response to more
clearly identify whether documents have been produced or are being withheld.
And, in its Second MTC, All Pro contends that Samsung’s objections to
Interrogatory No. 1 are improper and its answer is incomplete; that Samsung’s
objections to Interrogatory No. 2 are improper as All Pro is entitled to the requested
information; that Samsung’s answers to Interrogatory Nos. 5, 6, 7, and 8 are
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incomplete; and that Samsung’s objections to Interrogatory No. 9 are improper and its
answer is incomplete. Samsung contends that its objections and answers are proper.
In its reply, All Pro withdrew its Second MTC as to All Pro’s First Requests for
Production Nos. 18-21, 30, 45, 46, 51-55, 82, 84, 86-88, 96, and 97 and All Pro’s Second
Requests for Production Nos. 18, 24, 25, 26, and 27 and to its Interrogatory Nos. 5 and
8 and no longer presses its Second MTC as to its First Request for Production Nos. 58
and 59.
A.

Whether Samsung has unreasonably limited the time and scope of its
search for responsive documents.

In its reply, All Pro asserts that “Samsung has unreasonably limited the time
and scope of its search for responsive documents in response to All Pro’s First Request
for Production Nos. 47, 85, 94; and its Second Request for Production No. 23” and that
“Samsung’s narrow definition of the scope of relevant discovery for this case, and its
unwillingness to engage in a broader search for documents, disregards the sweeping
claims it has made against All Pro and the Employee Defendants, and the grave
consequences of those allegations.” Dkt. No. 105 at 5. According to All Pro, “Samsung
alleges that Defendants engaged in a conspiracy to provide All Pro with free products,
to rig Samsung’s auctions, to sell All Pro products that are prohibited from sale, and
provide All Pro with trade secrets, among other acts,” but “Samsung seeks to
hamstring All Pro’s defense of these claims by narrowly defining what is relevant for
discovery purposes and claiming that the requests are disproportional to Samsung’s

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multi-million dollar claim.” Id. “All Pro asks the Court to broaden Samsung’s defined
scope of discovery so that justice may be done.” Id. at 5-6.
During the course of oral argument as to All Pro’s First Request for Production
Nos. 47, 85, and 94 and Second Request for Production No. 23, All Pro’s and Samsung’s
counsel confirmed that they last met in person to confer on discovery issues in July
2016 and that All Pro’s counsel had offered possible search terms and custodians to
resolve these remaining issues as recently as March 5, 2017.
But All Pro’s Second MTC does not specifically address (other than to list them
by number) its First Request for Production Nos. 85 and 94, and All Pro’s reply
likewise provides no specific discussion as to each of its First Request for Production
Nos. 47, 85, and 94 and Second Request for Production No. 23. Although the Court does
not believe that, under Fifth Circuit law, an initial burden lies with the party moving
to compel, as part of a burden-shifting test, to show clearly that the information sought
is relevant to any party’s claim or defense and proportional to the needs of the case, a
movant has a burden to specifically and individually identify each discovery request
in dispute and specifically, as to each request, identify the nature and basis of the
dispute, including explaining ... how a response or answer is deficient or incomplete,
and ask the Court for specific relief as to each request. Further, where the resisting
party raises objections to a request as overbroad, unduly burdensome, and outside the
scope of permissible discovery under Rule 26(b)(1) and explains its objections, including
by pressing and supporting it in response to a motion to compel, the party seeking the
discovery and moving to compel must respond with some specificity. All Pro has not
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done so as to its First Request for Production Nos. 85 and 94, and its counsel’s
explanations and argument presented for the first time at oral argument come too late.
The Court DENIES the Second Motion to Compel as to All Pro’s First Request for
Production Nos. 85 and 94.
As to All Pro’s First Request for Production Nos. 47 and Second Request for
Production No. 23, the Court determines that All Pro has minimally met its burden to
brief the alleged deficiencies as to these two requests. But, with the benefit of proposals
and explanations that All Pro’s counsel provided for the first time on the eve of and
during oral argument, the Court will require All Pro’s counsel and Samsung’s counsel
to meet and confer to attempt to reach an agreement on Samsung’s responses to All
Pro’s First Request for Production Nos. 47 and Second Request for Production No. 23
and to, by March 21, 2017, file a joint status report that specifies (a) the names of the
attorneys who participated in the conference; (b) the date that the conference was held
and the amount of time during which the parties conferred; (c) the matters that were
resolved by agreement; (d) the specific matters that need to be determined by the
Court; and (e) a detailed explanation of why agreement could not be reached as to those
matters.
B.

Whether Samsung has provided inadequate, insufficient, or incorrect
responses.

As to All Pro’s First Requests for Production Nos. 37, 47, and 74-77 and All Pro’s
Second Requests for Production Nos. 22, 23, 28, 29, and 30 and All Pro’s Interrogatory
Nos. 1, 2, 6, 7, and 9, All Pro’s reply contends that, “[d]espite several attempts to
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resolve the issues All Pro raised in its Motion related to Samsung’s inadequate,
insufficient and/or incorrect discovery responses, Samsung has refused to provide clear
and complete responses” to these requests. Dkt. No. 105 at 6. All Pro specifically
contends that “Samsung’s responses fail to comply with the Federal Rules of Civil
Procedure as they leave All Pro uncertain as to whether Samsung has adequately
responded to its requests.” Id.
According to All Pro, “[b]ecause Samsung has failed to inform All Pro whether
it has in fact produced any documents in response to certain requests and failed to
state whether any materials have been withheld subject to its objections, All Pro has
not been able to make an informed decision as to the sufficiency of Samsung’s
responses,” where “Samsung’s responses leave All Pro to guess at whether it has or will
receive any responsive documents, and whether Samsung has produced all
non-privileged, responsive documents in Samsung’s possession.” Id. All Pro argues that
“[t]his uncertainty makes it impracticable to move forward with discovery by
scheduling depositions.” Id.
All Pro asserts that “Samsung cannot indefinitely continue to produce
documents responsive to All Pro’s discovery requests” and that, “[u]nless and until
Samsung provides a date certain for its production to be completed, and unless and
until it amends its written discovery responses to clarify whether or not all
non-privileged, responsive documents in its possession have been produced, All Pro
cannot determine whether the question has been fully answered or not.” Id. “All Pro
respectfully requests that the Court order Samsung to amend its discovery responses
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to clarify whether any responsive documents exist, whether it has produced any
responsive documents, whether it has withheld any documents, and order Samsung to
produce all non-privileged, responsive documents by a date certain.” Id. at 6-7.
At oral argument, Samsung responded that it has provided complete responses
to these document requests and has answered as fully as it can the interrogatories at
issue.
But, although Samsung’s counsel protested at oral argument that amending its
second amended answers to All Pro’s Interrogatory Nos. 1, 2, 6, 7, and 9 is not a good
use of time, the Court determines that Samsung must amend or supplement its
answers to these five interrogatories, by March 17, 2017, to specifically address
everything asked of it by each interrogatory and specifically state, under oath, that it
does not have any further responsive information as this time.
All Pro’s First Request for Production No. 47 and Second Request for Production
Nos. 23 have been addressed above.
As to All Pro’s First Requests for Production Nos. 37 and 74-77 and All Pro’s
Second Requests for Production Nos. 28 and 29, Samsung is ORDERED to, by March
17, 2017, amend or supplement its second amended responses to specify whether any
responsive documents have been produced and – if it is not already complete – when
Samsung’s production of documents responsive to each of these requests will be
substantially complete, subject to Samsung’s supplementation obligations under
Federal Rule of Civil Procedure 26(e).

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As to All Pro’s Second Requests for Production Nos. 22 and 30, All Pro’s Second
MTC and reply fail to meet All Pro’s briefing obligations to explain how Samsung’s
second amended responses to these requests are inadequate or insufficient or the basis
on which the Court could compel a different response under Rule 37(a) based on All
Pro’s assertion that a response is incorrect.
The Court accordingly GRANTS the Second MTC as to All Pro’s First Requests
for Production Nos. 37 and 74-77, Second Requests for Production Nos. 28 and 29, and
Interrogatory Nos. 1, 2, 6, 7, and 9 to the extent explained above and DENIES the
Second MTC as to All Pro’s Second Requests for Production Nos. 22 and 30.
IV.

All Pro’s First Request for Production Nos. 61-73
All Pro contends that Samsung’s objections that requests “call for a legal

conclusion” in response to All Pro’s First Request for Production Nos. 61-73 should be
overruled. Samsung responds that it has withdrawn these objections. In its reply, All
Pro withdrew its Second MTC as to All Pro’s First Requests for Production No. 72 and
no longer presses its Second MTC as to these objections to All Pro’s First Requests for
Production Nos. 61-71 and 73.
V.

All Pro’s Third Requests for Production Nos. 13 and 14
All Pro contends that Samsung’s objections of overbreadth, burdensomeness, and

disproportionality to All Pro’s Third Requests for Production Nos. 13 and 14 must be
overruled. Samsung responds that it has withdrawn its objections to these requests.
In its reply, All Pro withdrew its Second MTC as to All Pro’s Third Requests for
Production Nos. 13 and 14.
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VI.

All Pro’s Third Requests for Production Nos. 1-9, 13-14, 18, 25-32, 35-37, and
39-40
All Pro contends that Samsung’s objections to All Pro’s Third Requests for

Production Nos. 1-9, 13-14, 18, 25-32, 35-37, and 39-40 that the documents are “equally
available” to defendants should be overruled. Samsung responds that it has withdrawn
all “equally available” objections. Dkt. No. 86 at 16. In its reply, All Pro withdrew its
Second MTC as to All Pro’s Third Requests for Production Nos. 13, 14, and 18 and no
longer presses its Second MTC on this basis as to All Pro’s Third Requests for
Production Nos. 1-9, 25-32, 35-37, and 39-40.
VII.

All Pro’s Third Request for Production No. 21
All Pro contends that Samsung must remove its unfounded assertion of privilege

in response to All Pro’s Third Requests for Production No. 21. Samsung responds that
it has not redacted any portion of the substance of the email responsive to this request.
In its reply, All Pro withdrew its Second MTC as to All Pro’s Third Requests for
Production No. 21.
VIII. All Pro’s Interrogatory Nos. 4 and 11
All Pro contends that Samsung’s objections to Interrogatory No. 4 are improper
and its answer is incomplete and that Samsung’s objections to Interrogatory No. 11 are
improper. Samsung contends that its objections and answers are proper. In its reply,
All Pro withdrew its Second MTC as to Interrogatory Nos. 4 and 11.

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IX.

Award of expenses
Considering all of the circumstances here and the Court’s ruling above, the

parties will bear their own expenses, including attorneys’ fees, in connection with the
Second MTC and the MPO.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part All Pro’s Second MTC [Dkt. No. 85] and GRANTS in part and
DENIES in part Samsung’s MPO [Dkt. No. 97].
SO ORDERED.
DATED: March 7, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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