Steves and Sons, Inc. v. Jeld-Wen, Inc.

Filing 1644

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 06/11/2018. (smej, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

STEVES AND SONS, INC.,

Plaintiff,
Civil Action No. 3:16-cv-545

V.

JELD-WEN, INC.,
Defendant.

MEMORANDUM OPINION

This

STEVES

matter

& SON'S

FOR SANCTIONS

is

before

INC.,

the

Court

on

COUNTERCLAIM

AND

SAM

STEVES

AND

UNDER RULE

37,

INCLUDING A

EDWARD

DEFENDANT

STEVES'

MOTION

CONTINUANCE (ECF No.

1306). For the reasons set forth below, the motion was denied.
See ECF No. 1469.

BACKGROUND

The Court has described the factual background underlying

this dispute

at length

judgment

JELD-WEN,

on

counterclaims

for

in

its

Inc.'s

trade

recent opinion denying summary
("JELD-WEN")

secret

federal

misappropriation.

and

See

state

Summary

Judgment Op. (ECF No. 1424) at 2-7. However, procedural details
relevant to this motion are provided here for context.

On April 19, 2017, the Court ordered JELD-WEN to "identify

the specific trade secrets that it proposes will be the subject
of its counter claim and identify the witnesses it will use to

support those claims" ("the April 19 Order"). EOF No. 143 at 12. On April 26, JELD-WEN responded by filing; (1) a statement of
misappropriated trade secrets, EOF No. 185 (Under Seal); and (2)

a list of eleven witnesses who might "testify about facts that
relate to JELD-WEN's trade secrets counterclaims": Sam Steves,

Edward Steves, John Ambruz, Gregory Wysock, John Pierce, Robert

Merrill,

Brooks

Mallard

("Mallard"),

Kirk

Hachigian,

John

Jarosz, Jay Borrell ("Borrell"), and James Edward Reed ("Reed"),
EOF No. 182-2.

After

Steves

and

about the vagueness of

Sons,

Inc.

("Steves")^

raised

concerns

the descriptions in JELD-WEN's initial

trade secrets statement, the Court noted that the trade secrets

needed to be "specifically identified." Aug. 9, 2017 Transcript

(ECF No.

350)

at 131:17.

JELD-WEN

subsequently served Steves

with an updated trade secrets statement in response to Steves'
interrogatories.

See

moved

portions

to

strike

ECF

No.

of

357-2

the

(Under

updated

Seal).

Steves

statement

that

then

were

imprecise, and the Court granted that motion in part on October
6. ECF No. 424. The Court also urged JELD-WEN to "err . . . on

^ Steves filed this motion jointly with Sam Steves and Edward
Steves ("the Steves Brothers"). The Steves Brothers were only
permitted to intervene as counter-defendants on January 18,
2018, see ECF No. 832, so it is unclear how they could have been
affected much, if at all, by JELD-WEN's failure to comply with
orders that long preceded that date. Nevertheless, for the sake
of simplicity, the term "Steves" as used in this memorandum
refers to all three parties.

the

side of making

[the statement]

so crystal clear and so

precise that there can be no room for contention that you are
being vague and leaving the door open." Oct. 3, 2017 Transcript
(ECF No. 420) at 22:6-8. Following those instructions, JELD-WEN

filed an amended statement of misappropriated trade secrets on
October 9 ("the Amended Statement"). ECF No. 428 (Under Seal).
The

Amended

secrets,

but

Statement

some

contained

rows

included

a

number

more

of

than

rows

one

of

trade

paragraph

of

infoimiation.

Steves then relied on the Amended Statement to conduct its

Rule

30(b)(6)

depositions

of

JELD-WEN

through

JELD-WEN's

two

corporate designees. Reed and Mallard. During those depositions,
Steves'

counsel

asked

the

witnesses

whether

they

understood

certain rows to contain a single combination trade secret or
multiple trade secrets. Testifying about different rows in the
Amended Statement, Reed and Mallard both responded that JELD-WEN
considers each individual item in the row to be confidential and

a trade secret, and that the cumulative information in the whole

row is also confidential and a trade secret. Reed also explained
that JELD-WEN does not keep a list of trade secrets, considers

all its information confidential, and does not separate

that

information into items or groups.
On

November

misappropriated

2,

trade

JELD-WEN
secrets

filed

an

to

asserted

be

updated
at

statement
trial

of

(''the

Trial Statement"). ECF No. 468 (Under Seal). The Trial Statement

was filed in accordance with an earlier scheduling order, which
set a date by which JELD-WEN had to eliminate trade secrets that

it would not assert at trial. See ECF No. 374 at 2. Shortly
thereafter,

JELD-WEN

moved

for

leave

to

add

several

trade

secrets to the Trial Statement based on the declarations of two

individuals, including JELD-WEN's industry expert James Morrison
(''Morrison"),

about

other

misappropriated

trade

secrets

that

those individuals discovered while reviewing documents produced
by Steves. The Court granted the motion on November 27, ECF No.

581, and JELD-WEN filed an amended statement of misappropriated
trade

secrets

for

trial

("the

Amended

Trial

Statement")

on

November 29. ECF No. 588 (Under Seal).

At his subsequent deposition, Morrison testified about the
information in the Amended Trial Statement, having been retained
by

JELD-WEN

to

express

his

expert

opinion

on

whether

that

information was confidential, protected, and valuable to JELDWEN.

trade

When

asked

secret,

whether

Morrison

certain

said

information

that

it

was

was

a

an

individual

trade

secret

"
[s]eparately and in combination." Morrison Dep. (ECF No. 884-5)
(Under Seal) at 95:1-2. Morrison avoided answering that line of
questioning by responding that JELD-WEN had not retained him to

give an opinion on whether particular infomnation constituted a

trade secret. Id. at 96:4-13.^ Morrison then numbered the rows in

the Amended Trial Statement, showing that the document contained
28 rows of trade secrets. See Morrison Annotated Trial Statement

{ECF No. 884-6) (Under Seal).

After

expert

summary judgment

discovery
on

January

was

completed,

Steves

24,

2018,

No.

ECF

moved

885,

and

for
the

motion became ripe on March 5, ECF No. 1124. Shortly thereafter,
on

March

would

Court

15,

after

JELD-WEN's

assert only one

ordered

counsel

advised

combination trade

JELD-WEN

to

submit

an

that

JELD-WEN

secret at trial,

updated

trade

the

secrets

statement that delineated each trade secret and explained the
source

of

the

trade

secret

in

more

detail

than

in

the

Amended

Trial Statement.^ ECF No. 1199. In response, JELD-WEN filed an
updated
March

statement

21.

ECF

No.

("the

Second

1218

(Under

Amended
Seal).

Trial
That

Statement")

statement

on

removed

generalized information from several rows in the Amended Trial
Statement

and

removed

entirely

the

information

constituting

several trade secrets.

^ JELD-WEN's lay witnesses also avoided similar questions upon
instruction

from

JELD-WEN's

counsel

that

those

witnesses

could

not opine whether something was or was not a trade secret.

^ JELD-WEN had filed another trade secrets statement on February
28, 2018 in connection with a motion in limine. See ECF No. 1081
(Under Seal). That statement removed one row of information that

JELD-WEN had decided to not claim as a trade secret at trial,
but was otherwise identical to the Amended Trial Statement.

At oral argument on Steves' summary judgment motion, Steves

again expressed concern about the specificity of certain trade
secrets

in

the

Second

inability to examine
summary judgment

Amended

the

motion.

Trial

infonnation
Sharing

Statement

therein

Steves'

as

and

Steves'

part of

frustration

with

its
the

vague testimony of JELD-WEN's witnesses, the Court said:
I've never ever seen a situation where there

had been as flagrant a situation as here
where the experts and the lay witnesses say
it's both under the law without saying which
one is. It's okay to say there are six parts
and all six of them are individually and all
six

of

them

are

in

combination,

but

there

are
combinations
within
separate
trade
secrets here that are alleged, and it's
nothing but the fault of people who have not
obeyed the Court orders to do what they were
told to do. . . .

[T]he
lawyers
could
simply
have
told
Mallard,
Reed,
and
Morrison
you
can't
testify that way except as to these, and
these are the right ones, because they've
dropped the combination ones now. So they
obviously didn't have a combination claim
for

all

of

them.

And

that

could

have

been

done months ago.

Mar. 26, 2018 Transcript (ECF No. 1295) at 52:2-19. The Court
restated

its

criticism

of

JELD-WEN's

approach

later

hearing, stating that,
once you get a court order that tells you to
specify and identify the trade secret, put
the witness opposite, which is exactly what
the [April 19] [O]rder did, opposite who was
going to testify about the trade secret, and
then as we went on and on through giving you
chance after chance after chance to do it.

in

the

to

obdurately

maintain,

as

your

witnesses

did and your papers did until the telephone
call the other day, that you are proceeding
both as combinations and individuals,
impossible
for
[Steves]
to
know
actually they are ready to defend.

it's
what

Id. at 75:10-20.

Nonetheless, JELD-WEN's counsel reiterated at oral argument

that JELD-WEN would pursue at trial only one combination trade

secret.

Based

on

those

assurances,

and

recognizing

the

improvements in the Second Amended Trial Statement, the Court

declined to grant summary judgment for Steves on the grounds
that

JELD-WEN

appropriate

had

not

identified

specificity.

See

its

Summary

trade

Judgment

secrets

Op.

at

with

27-29.

However, the Court permitted Steves to move for sanctions under

Fed. R. Civ. P. 37 based on JELD-WEN's purported failure to
comply

with

the

Court's

earlier

orders

to

define

the

trade

secrets with specificity. ECF No. 1290.'^ Steves filed this motion
several

days

later,

seeking

sanctions

exclusively

under

Rule

37(b)(2)(A). ECF No. 1306.

Finally,

at

oral

argument

on

this

motion,

JELD-WEN's

counsel represented to the Court that it would rely only on the
testimony of Borrell, Mallard, and Reed at trial to establish

^ The Court also allowed Steves to separately seek a continuance
of the trial given JELD-WEN's modifications in the Second
Amended Trial Statement. See ECF No. 1290. However, Steves never

filed a continuance motion by the specified date, apparently
deciding to seek a continuance solely as a Rule 37 sanction.

the existence of its trade secrets.^ Apr. 13, 2018 Transcript
(ECF No. 1423) at 23:14-20. JELD-WEN had already disclosed all
three witnesses in response to the April 19 Order. See ECF No.
182-2. JELD-WEN committed to this position again in its surreply to Steves' motion. See JELD-WEN Sur-Reply at 2.
DISCUSSION

I.

Legal Standard

Rule 37(b) permits courts to issue any "just orders" "[i]f
a party or a party's officer, director, or managing agent—or a

witness designated under Rule 30(b)(6) . . . —fails to obey an
order

to

provide

or

permit

discovery."

Fed.

R.

Civ.

P.

37(b)(2)(A). Those orders may include: (1) directing that the
matters embraced in the order or other designated facts be taken
as established for puirposes of the action; (2) prohibiting the

disobedient party from supporting or opposing designated claims
or defenses, or from introducing designated matters in evidence;
(3) striking pleadings in whole or in part; (4) staying further

^ JELD-WEN also stated that it would rely on Morrison to testify
about his discovery of a small number of misappropriated trade
secrets in November 2017, which led to JELD-WEN's filing of the
Amended Trial Statement. JELD-WEN Sur-Reply (ECF No. 1405)
(Under Seal) at 2 n.l. JELD-WEN can hardly be faulted for
failing to disclose Morrison as a supporting witness in the
April
19
Order
given
that
it
did
not
discover
the
misappropriation of the particular trade secrets about which
Morrison
will testify until more
than six
months later.
Therefore, to the extent that Steves' motion seeks exclusion of
Morrison's fact testimony at trial, see Steves Reply (ECF No.
1366) (Under Seal) at 18, that sanction is not appropriate.
8

proceedings until the order is obeyed; (5) dismissing the action
or

proceeding

in

whole

judgment against the

or in

part;

(6)

rendering

disobedient party; or (7)

a

default

treating

the

failure to obey as contempt of court. Id. 37(b)(2)(A){i)-(vii).
For a court to impose any of these sanctions, of course,

the movant must demonstrate that the party against which the

sanctions are sought has violated a discovery order. See id.
37(b)(2)(A);

see

also

Felman

Prod.,

Inc.

v.

Indus.

Risk

Insurers, No. CIV.A. 3:09-0481, 2011 WL 4547012, at *14 (S.D.W.

Va. Sept. 29, 2011) ("[I]n order to issue sanctions pursuant to

Rule 37(b), a court must determine that a party has violated a
court order to provide or permit discovery."). If the movant can
do so, the court's determination of the proper sanctions depends
on four factors: "(1) whether the non-complying party acted in

bad faith, (2) the amount of prejudice that noncompliance caused
the

adversary,

(3)

the

need for deterrence

of

the

particular

sort of non-compliance, and (4) whether less drastic sanctions
would have been effective." Anderson v. Found, for Advancement,

Educ. & Employment of Am. Indians, 155 F.3d 500, 504

{4th Cir.

1998).

The

exact

discovery

order

or

orders

that

JELD-WEN

has

violated was not addressed in Steves' opening brief, and remains

unclear even in its reply brief.^ See Steves Reply at 3-4
(claiming

that

JELD-WEN

^^has

not

complied

with

multiple

discovery orders," but explicitly referring to only the April 19
Order). Nonetheless, Steves appears to stake its motion on JELDWEN's alleged

several

violations of

sanctions

that order:

(1)

for

the April 19 Order. Steves seeks

JELD-WEN's

an order

purported

striking

noncompliance

Morrison's

with

proposed expert

testimony; (2) leave for Steves to amend its summary judgment
motion

to address the

particular

trade

secrets

in

the Second

Amended Trial Statement; (3) a continuance of the trial to allow

for full briefing on Steves' amended summary judgment motion and
to give Steves time to prepare

with the Second Amended Trial

Statement in mind; (4) an order limiting JELD-WEN at trial to

testimony from witnesses disclosed in response to the April 19
Order for purposes of establishing that the information in the
Second

Amended

Trial

Statement

constitutes

trade

secrets;

and

(5) a jury instruction that effectively "binds" JELD-WEN to the

® JELD-WEN's counsel conceded at oral argument that an order need
not

be

written

for

its

violation

to

lead

to

Rule

37(b)

sanctions, Apr. 13, 2018 Transcript at 16:22-17:5, but Steves
does not point to any verbal discovery order that JELD-WEN may
have violated. Moreover, as discussed further below, Steves does
not explain how JELD-WEN violated any of the numerous orders
described above concerning JELD-WEN's trade secrets statements,
beyond the general assertion that JELD-WEN has repeatedly
delayed in differentiating its individual trade secrets from its
combination trade secrets.
10

individual

and

combination

trade

secrets

that

JELD-WEN

has

agreed are contained in the Second Amended Trial Statement.

II.

Discovery Order Violations

As noted, Steves does not describe how exactly JELD-WEN has
failed to comply with particular orders. As an initial matter,
Steves seems to assume, based on the Court's earlier statements,

that the Court has already decided that JELD-WEN did, in fact,

violate

one

or

more

discovery

orders.

See

Mar.

26,

2018

Transcript at 52:2-19, 75:10-20. This belief is mistaken. To the
extent that the Court commented on its previous orders, it could
only

have

done

so

in

the

context

of

whether

JELD-WEN

had

appropriately specified its trade secrets for summary judgment
purposes,

given the arguments in the parties'

briefs to that

point. Any statements about the narrower issue of whether JELDWEN's actions implicated Rule 37(b)(2)(A) would, therefore, have
been

premature

because

the

Court

lacked

the

record

at

that

hearing to be able to rule on that question. Indeed, the Court
admitted as much during oral argument on this motion. See Apr.
13, 2018 Transcript at 35:17-19 ("I have to confess that I don't
think

I

had

order.").

The

witnesses')
combination
spirit

of

a

basis
Court

failure
trade
what

for

also
to

secrets

[the

saying

there's

explained
distinguish
was

Court]

that

11

violation

JELD-WEN's

between

a ''flagrant

had

a

(and

individual

violation"

communicated"

of

in

its

of

an
its
and

"the

earlier

orders—that is, the need for trade secret specificity in light
of

problems

the

Court

encountered

in

previous

trade

secrets

cases. Id. at 35:20-36:2 (emphasis added). But, if that ''spirit"
was never reduced to an order, then JELD-WEN's failure to comply

with it could not justify Rule 37(b) sanctions.
A closer look at JELD-WEN's responses to relevant orders in
this

case

reveals

violations.

The

that

JELD-WEN

Court's

has

first

committed

order,

the

no

sanctionable

April

19

Order,

required JELD-WEN to "identify the specific trade secrets that
it

proposes

will

be

the

subject

of

its

counter

claim

and

identify the witnesses it will use to support those claims." ECF
No.

143 at 1-2.

secrets

Nos.

JELD-WEN

statement

182-2,

and

185.

corresponds

to

Statement,

list of

Much

trade

although

complied

of

witnesses

the

in

filing its trade

within

information

secrets

such

promptly,

the

a

in

Second

information

was

week.

that

See

ECF

statement

Amended

stated

Trial

in

less

particularized form given that JELD-WEN's trade secrets case had
barely begun. JELD-WEN can be forgiven for not stating its trade

secrets with the exact specificity that the Court would later
demand,

considering

meaning

and

that

the

instructions

Court

in

the

the

had

April

word

not
19

"specific"

provided
Order

for

has

JELD-WEN
stating

no

uniform

with

exact

its

trade

secrets. Similarly, although Steves makes much of the fact that
JELD-WEN's

witness

list

did

not

12

connect

its

witnesses

with

specific trade secrets about which they would testify, nothing
in the broad language of the April 19 Order required JELD-WEN to
do so. Accordingly, JELD-WEN's steps immediately after the April
19 Order did not violate the Court's directive.

JELD-WEN's
Court's

later

subsequent

orders.

actions

JELD-WEN

also

served

did

its

not

second

violate
trade

the

secrets

statement on Steves in response to an interrogatory, not any
order. ECF No. 357-2. Then, when Steves moved to strike certain

trade secrets in that statement for their lack of specificity
and

reliance

on

"expanding

references"

like

"including"

and

"among other things," ECF No. 355, the Court ordered JELD-WEN

to: (1) amend the statement to remove all expanding references;
and

(2)

"file

secrets . . . with

an

amended

specificity,"

statement

which

"shall

of

its

clearly

trade

identify

what each of those trade secrets are by setting forth explicitly
what is the ^know-how,
' ^knowledge, or ^experience' or the like
'
that is claimed to be a trade secret," ECF No. 424 at 1-2. JELD-

WEN's

subsequent

Amended

Statement

removed

the

expanding

references and, for the particular trade secrets noted in the
order, stripped away the
criticized.

the

Amended

trade

See

ECF

No.

Statement

secrets

hard

to

general descriptions that Steves had

468.

still

It

is

made

ascertain,

true

the

that

the

substance

particularly

structure

of

of

particular

when

read

in

conjunction with Mallard's and Reed's Rule 30(b)(6) deposition
13

testimony, but JELD-WEN's continued reliance on a somewhat vague
organization did not clearly disobey the Court's instructions.
JELD-WEN seems to have sincerely believed that it had made all
the

necessary

specificity"
again,

the

changes

and

to

define

"explicitly,"

rather

subjective

its

as

the

meaning

of

trade

secrets

Court

"with

demanded—given,

those

terms

in

this

context.^ JELD-WEN's next two trade secrets statements—the Trial
Statement

response
need

and

to

for

the

Amended

separate
clearer

combination

trade

Trial

Statement—were

Court orders

which

differentiation

secrets.

See

ECF

said

between

No.

374

filed

in

nothing

direct

about a

individual

at

2

and

(scheduling

order requiring JELD-WEN to "[i]dentify [tirade [s]ecrets to be
[a]sserted at [t]rial" by November 2, 2017); ECF No. 581 (order

granting

JELD-WEN's

motion

for

leave

to

amend

the

Trial

Statement, which directed JELD-WEN to "file an amended statement

of

misappropriated

trade

secrets

that

reflects

the

changes

identified in Exhibit 1 to [JELD-WEN]'s brief in support of the
motion (ECF No. 511-1)"). Thus, JELD-WEN clearly did not violate
those orders.

^ Moreover, to the extent that the Amended Statement and its
later iterations did not satisfy the Court's order, Steves is
partly to blame. Had it crystallized the individual versus
combination issue in its motion to strike (or in any other
filing) before making that topic the centerpiece of its summary
judgment motion, this issue might have been resolved long before
the eve of trial.
14

It was not until March 15, 2018 that the Court stated its

conclusion

that

the

Amended

Trial

Statement

was

^^confusing

respecting the identification of what is, and what is not, an
asserted

trade

secret

and

whether,

when

the

trade

secret

is

presented in multiple paragraphs, or clauses, or subparagraphs,
it is intended that each component is a trade secret or that the
entirety of what is listed is the trade secret." EOF No. 1199 at
1. Based on that finding, the Court ordered JELD-WEN to promptly
file

an

amended

trade

secrets

statement

"which

shall

be

presented in the format of ECF No. 1495 in the case of E.I, du
Font de Nemours and Company v. Kolon Industries, Inc., et al..

Civil Action

No.

3:09cv58

(a

redacted

copy of

which

will be

supplied to counsel by email) and as instructed by the Court
during a telephone conference on March 15." Id. at 2. The Second
Amended

Trial

Statement,

which

JELD-WEN

filed

several

days

later, made those changes and organized the trade secrets in the

requested foinnat—that is, separated by individual trade secret
rather

than

by

rows

with

similar

categories

of

information.

Compare ECF No. 1218 with ECF No. 588. In other words, once the

Court

gave

JELD-WEN

instructions

for

structuring

its

trade

secrets, it complied immediately. That JELD-WEN did not file the
precise trade secrets statement the Court requested until that

15

point is unfortunate, but is not cause for discovery sanctions.®
Even if JELD-WEN's execution was somewhat lacking at times, it
consistently complied

with each of the

Court's orders (or at

least what JELD-WEN understood the orders to require, based on

its reading of their text). See Apr. 13, 2018 Transcript at
36:6-9

C'[P]arsing the record, while I think I let J[ELD]-W[EN]

know exactly what they

were supposed to be doing, I couldn't

find anything that constituted the basis for an order that would
warrant the imposition of sanctions.").
Unable

to

demonstrate

how

JELD-WEN

Steves resorts to arguing that the
numerous

versions

of

its

trade

violated

any

orders,

need for JELD-WEN to file

secrets

statement

somehow

shows

that it violated the April 19 Order. First, Steves says, "the
Court

made

clear

that

[JELD-WEN's

initial

trade

secrets

statement] did not satisfy the April [19] Order" at the August

9,

2017

hearing,

which

necessitated

JELD-WEN's

second

trade

secrets statement. Steves Reply at 3. In Steves' view, JELD-WEN

also

violated

statement,

ordering

the

April

because

JELD-WEN

to

that

file

19

Order

statement

yet

by

serving

"resulted

another

list

of

that

in

the

alleged

second
Court

trade

® It is notable that the trade secrets statement in E.I, du Font,
which the Court provided a redacted excerpt of, was sealed and
thus not publicly available. As a result, even if the Court had
previously intended to have JELD-WEN use that statement as a
model, JELD-WEN had no way to do so before March 15, 2018.
16

secrets"

following

Steves'

motion

to

strike.

logic, each subsequent version of the
presumably

constituted

a

violation

Id.

Under

this

trade secrets statement

of

the

April

19

Order,

because none of those statements contained the specificity that
the Court had ordered at the outset.

This

argument

is

difficult

to

parse

and,

ultimately,

unconvincing. For one thing, it is not ''clear" that the Court
found any violation of the April 19 Order during the August 9
hearing.

The

Court

simply

said

that

it

was

"sorry

[Steves]

didn't file a motion to compel, because . . . . I thought I made
clear

that

[the

trade

secrets]

had

to

be

filed

with

specificity." Aug. 9, 2017 Transcript at 120:13-19. Even though
the

specificity

something

to

be

of

JELD-WEN's

desired,

the

trade
Court

secrets
expressly

statement
left

left

open

the

possibility that it had not instructed JELD-WEN clearly on that
point. Moreover, if the Court's meaning was as obvious as Steves

thinks, it is a mystery why Steves waited more than seven months
before seeking sanctions for that purported violation. As for
the remaining versions of the trade secrets statement, Steves'

rationale in effect punishes JELD-WEN for trying to do exactly
what each of the Court's orders required. Nothing in the April
19 Order created an ongoing duty for JELD-WEN—akin to Rule 26's

duty of supplementation—to continually update its trade secrets
statement

in

order

to

achieve
17

some

predetermined

level

of

specificity.

Rather,

JELD-WEN's

various

statements

must

be

measured in response to the specific orders that prompted them.
And, for the

reasons discussed above,

JELD-WEN complied

with

those orders.

Consequently,

because

Steves

cannot

show

that

JELD-WEN

violated any discovery orders, its motion must be denied.
Ill. Sanctions for Violations

Having reached that conclusion, the Court need not address

whether the four Anderson factors permit any of the sanctions
requested by Steves (or any lesser sanctions). Nonetheless, it

is worth briefly noting here that those elements do not appear
to

support

the

relatively

serious

sanctions

Steves

asks

for,

like exclusion of fact and expert testimony or a continuance of
the trial to allow for amended summary judgment briefing. First,
there

is little evidence

that JELD-WEN ever acted in bad faith.

As detailed above, the specificity required by the Court was not
susceptible to precise definition, such that JELD-WEN's failure
to

understand

the

understandable.

Thus,

disregard[]'"

the

Fin.

Int'l,

Markets

meaning

of

JELD-WEN

instructions
Inc.

Court's

v.

orders

did

not

in

any of

the

Booz

Allen

is

somewhat

'''deliberately

Court's

Hamilton,

orders.

Inc.,

No.

1:11CV1299 TSE/JFA, 2013 WL 5537817, at *3 (E.D. Va. Sept. 16,
2013), report and recommendation adopted, 2013 WL 5538341 (E.D.

Va. Oct. 7, 2013) (quoting Rabb v. Amatex Corp., 769 F.2d 996,
18

1000

{4th

Cir.

1985)). Second,

given that

Steves'

industry

expert was able to analyze the existence of trade secrets in the

Amended Trial Statement without much difficulty, it does not
appear that the confusing organization of that document caused

much, if any, prejudice to Steves. Finally, JELD-WEN has not
exhibited

the

significant

sort

deterrent

of

willful

sanctions,

noncompliance
see

Baptiste

that
v.

demands

Nat'l

R.R.

Passenger Corp., No. CV CBD-14-3279, 2015 WL 5714103, at *4 (D.

Md. Sept. 28, 2015), and any violation is better remedied by
properly instructing the jury about the substance of JELD-WEN's

trade secrets than by, for instance, limiting the testimony of
certain witnesses. As a result, even if JELD-WEN had violated a

discovery order, Steves' sanctions would be inappropriate here.
CONCLUSION

For the foregoing reasons, COUNTERCLAIM DEFENDANT STEVES &
SON'S

INC.,

AND

SAM

STEVES

AND

EDWARD

STEVES'

MOTION

FOR

SANCTIONS UNDER RULE 37, INCLUDING A CONTINUANCE (ECF No. 1306)
was denied.

It is so ORDERED.

/s/
Robert E. Payne

Senior United States District Judge

Richmond, Virginia

Date: June IL, 2018
19