Xyngular v. Schneckl
Filing
110
MEMORANDUM DECISION granting 43 Motion to Compel. Signed by Magistrate Judge Paul M. Warner on 09/30/2013. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
XYNGULAR CORPORATION, a
Delaware corporation,
Plaintiff,
v.
MARC SCHENKEL, an individual,
MEMORANDUM DECISION AND
ORDER
Defendant.
Case No. 2:12cv876
MARC SCHENKEL, an individual,
Counterclaimant,
District Judge Robert J. Shelby
Magistrate Judge Paul M. Warner
v.
XYNGULAR CORPORATION, a
Delaware corporation,
Counterclaim Defendant.
MARC SCHENKEL, an individual; and
MARC SCHENKEL, suing derivatively
on behalf of XYNGULAR
CORPORATION, a Delaware
corporation,
Third-Party Plaintiffs,
v.
RUDY REVAK, an individual; MARY
JULICH, an individual; STEVE KOLE,
an individual; MARC WALKER, an
individual; BRUCE JENSEN, an
individual; DAN MURPHY, an
individual; RUSSELL FLETCHER, an
individual; JIM NORTHROP, an
individual; ROBERT SPANGLER, an
individual; SYMMETRY
CORPORATION, a Delaware
corporation; and GLOBAL VENTURES
MANAGEMENT SERVICES LLC, a
Delaware limited liability company,
Third-Party Defendants.
This matter was referred to Magistrate Judge Paul M. Warner by District Judge Robert J.
Shelby pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is Marc Schenkel’s (“Schenkel”)
motion to compel initial disclosures.2 The court has carefully reviewed the memoranda
submitted by the parties. Pursuant to civil rule 7-1(f) of the United States District Court for the
District of Utah Rules of Practice, the court elects to determine the motion on the basis of the
written memoranda and finds that oral argument would not be helpful or necessary. See
DUCivR 7-1(f).
I. Schenkel’s Motion to Compel
Schenkel moves this court to compel Xyngular Corporation (“Xyngular”) and ThirdParty Defendants Rudy Revak; Mary Julich; Steve Kole; Marc Walker; Bruce Jensen; Dan
1
See docket no. 46.
2
See docket no. 43.
2
Murphy; Russell Fletcher; Jim Northrop; Robert Spangler; Symmetry Corporation; and Global
Ventures Management Services, LLC (collectively, “Third-Party Defendants”) to provide full
and complete initial disclosures. Specifically, Schenkel argues that Xyngular’s and Third-Party
Defendants’ initial disclosures failed to provide him with a copy of or identify the location of
discoverable documents as required by rule 26(a)(1)(A)(ii) of the Federal Rules of Civil
Procedure. Schenkel further asserts that the initial disclosures did not provide him with “a
computation of each category of damages,” nor have Xyngular and Third-Party Defendants made
“available for inspection and copying . . . the documents or other evidentiary material, on which
each computation is based, including materials bearing on the nature and extent of injuries
suffered.” Fed. R. Civ. P. 26(a)(1)(A)(iii). Schenkel contends that Xyngular and Third-Party
Defendants failed to disclose individuals they know are likely to have discoverable information
relevant to their claims and/or defenses. See Fed. R. Civ. P. 26(a)(1)(A)(i). Schenkel asserts that
he attempted on three separate occasions to meet and confer with opposing counsel regarding the
initial disclosures to no avail.
In response, Xyngular and Third-Party Defendants argue that they have complied with
their discovery obligations. Specifically, Third-Party Defendants contend that their initial
disclosures identified eleven different potential witnesses and seven categories of documents that
may be used to support their defense of the claims Schenkel asserted. Third-Party Defendants
indicate that because they have not asserted any claims, as stated in their initial disclosures, they
are not seeking any damages. Xyngular maintains that it identified eleven different potential
witnesses and indicated that “other individuals . . . who have relevant knowledge will be
3
identified during the scope of discovery in this case.”3 Xyngular asserts that it identified seven
categories of documents that may be used to support their claims and/or defenses. With regard
to damages, Xyngular stated that it “has been unable to fully determine the amount of damages
to which it is entitled to [recover from] Schenkel” and that a damage determination “will be the
subject of discovery in this case, and the calculation of some or perhaps all of those damages will
be the subject of expert testimony.”4 Xyngular further indicated that it would continue to
supplement its initial disclosures as the case develops.
Xyngular and Third-Party Defendants argue that Schenkel is engaging in discovery
gamesmanship and that the three purported attempts to meet and confer were a made at
inopportune times or were disingenuous. Xyngular and Third-Party Defendants further assert
that they have “extended more than a half-dozen invitations” to discuss on the phone or in person
the status of discovery and Schenkel’s discovery concerns with no response from Schenkel.5
Schenkel contends that he also made “numerous” offers to meet and confer by email and
telephone but was repeatedly “stonewalled.”6
Under rule 26(a)(1)(A), parties are required to make initial disclosures prior to receiving
a discovery request. The rule provides, in relevant part, that parties must disclose
3
Docket no. 48 at vi.
4
Id. at vii.
5
Id. at iii.
6
Docket no. 49 at iii-iv.
4
(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;
(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;
(iii) a computation of each category of damages claimed by the disclosing
party--who must also make available for inspection and copying as under Rule 34
the documents or other evidentiary material, unless privileged or protected from
disclosure, on which each computation is based, including materials bearing on
the nature and extent of injuries suffered.
Fed. R. Civ. P. 26(a)(1)(A)(i)-(iii). Furthermore, parties are under a continuing obligation
supplement these disclosures. See Fed. R. Civ. P. 26(a)(2)(E) and 26(e). Parties are required to
make their “initial disclosures based on the information then reasonably available” and they are
“not excused from making [their] disclosures because [they have] not fully investigated the
case.” Fed. R. Civ. P. 26(a)(1)(E).
The court has reviewed the email exchanges and initial disclosures of each party. It is
obvious to the court that all of the parties and/or more likely counsel are engaged in discovery
gamesmanship, at least to some extent. As the court noted at the status conference last March,
this court will not tolerate this type of behavior from counsel or parties. The court cautions all
parties that the failure to comply with the initial disclosure requirement, and subsequent
supplementation, as well as all other discovery rules, may preclude the admission of undisclosed
witnesses and/or evidence.
To the extent they have not done so already, Xyngular and Third-Party Defendants are
ordered to supplement their initial disclosures with the specific location of documents and
5
electronically stored information. For instance, simply stating that the discovery is “located on
the server used by Xyngular, on personal computers of some of the individual third-party
defendants, and some hard copies of the documents are located in the Xyngular office in San
Jose” is not sufficient.7 Xyngular and Third-Party Defendants should specify which individual
Third-Party Defendants have documents on their personal computers. Further, to the extent it
has not done so, Xyngular is ordered to supplement its initial disclosures regarding the
computation of damages. It does not need to describe in full the amount of damages it believes it
suffered; for instance, it is presumably aware of the amount it believes it overpaid Schenkel.
Other damage computations may require further investigation and it can reserve the production
of those amounts in its supplementation(s).
Based on the foregoing, Schenkel’s motion to compel8 is GRANTED.
IT IS SO ORDERED.
DATED this 30th day of September, 2013.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
7
Docket no. 43-2.
8
See docket no. 43.
6
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