CASCADE YARNS, INC. v. KNITTING FEVER, INC. et al

Filing 596

ORDER ON MOTION FOR A PROTECTIVE ORDER striking 437 Motion to Compel; denying 440 Motion for Protective Order; striking 465 Motion to Compel; striking 468 Motion to Compel; striking 471 Motion to Compel; striking 474 Motion to Compel; striking 478 Motion to Compel; striking 481 Motion to Compel ; pltf's motion to compel 526 is referred to Hon James Donohue by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CASCADE YARNS, INC.,
Plaintiff/Counterclaim
Defendant,

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v.

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KNITTING FEVER, INC., et al.,

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Defendants/Counterclaim
Plaintiffs/Third-Party
Plaintiffs,

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v.

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ROBERT DUNBABIN, SR., et al.,

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Third-Party Defendants.
CASCADE YARNS, INC.,

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Plaintiff,

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v.
EMMEPIEFFE S.R.L., a foreign limited liability
corporation,

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Defendant.
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ORDER - 1

CASE NO. C10-861RSM
ORDER ON MOTION FOR A
PROTECTIVE ORDER

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The Court, having considered a motion for a protective order and appointment of a special

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master to oversee discovery issues filed by defendant Knitting Fever, Inc., (“KFI”) (Dkt. # 440),

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together with plaintiff’s response, does now find and ORDER:

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(1) Between November 15, 2011, and December 22, 2011, plaintiff filed ten discovery motions

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pursuant to Local Rule CR 37(a)(1)(B), which authorizes the filing, by consent of the parties, of joint

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motions requesting an expedited ruling on discovery issues. Dkt. ## 362, 370, 376, 382, 385, 391, 400,

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417, 426, 433. Most of these were accompanied by separate motions to seal as required by Local Rule

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CR 5(g). However, the Rule CR 37 motions were not noted on the Court’s calendar and the Court was

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not alerted to them until the motions to seal were ready for consideration. During this period plaintiff

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also filed two additional contested motions to compel that were properly noted on the Court’s calendar.

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Dkt. ## 412, 437.

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(2) Defendants filed this motion for a protective order on December 22, 2011, asking among

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other requests that four of the CR 37 submissions be stricken because they had not agreed to the joint

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procedure for these issues. On December 23, 2011, after reviewing an associated motion to seal, the

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Court agreed and struck one of the CR 37 motions (Dkt. # 445). On December 27, 2011, plaintiff

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withdrew the other three CR 37 submissions in which defendants failed to join. Dkt. #452. The Court

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ruled on the remaining six CR 37 submissions on January 10, 2012. Dkt. ## 489, 490, 491, 492, 493,

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494. The Court also ruled on two other contested motions to compel filed by plaintiff. Dkt. ## 495,

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496.

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(3) On January 5, 2012, before the parties had the benefit of guidance from the Court’s January

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10 rulings, plaintiff filed six more contested motions to compel addressing Requests for Production.

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Dkt. ## 465, 468, 471, 474, 478, 481. On January 11, 2011, plaintiff filed a notice of withdrawal of three

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specific requests for production based on the Court’s January 10 rulings. Dkt. # 497. Defendants filed

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an omnibus response to the six motions to compel, asserting among other defenses, that many requests

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exceed the scope of discovery in this matter. Dkt. # 512. They also contend that many of the named

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defendants have already provided all responsive documents that can be found. Id. In the reply, plaintiff

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notes that one defendant produced 125 additional documents the night before her deposition, suggesting

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ORDER - 2

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that her stated excuse for not providing them earlier was invalid. Plaintiff’s Reply, Dkt. # 534, p. 2.
(4) Also on January 5, 2012, plaintiff filed a motion for leave to take additional depositions

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beyond the ten presumed by Fed.R.Civ.P. 30, and a motion for issuance of letters rogatory for the

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purpose of taking a third-party deposition in the United Kingdom. Dkt. ## 459, 462.

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(5) On January 12, 2012, defendant Knitting Fever, Inc., (“KFI”) filed a motion to extend the

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deadline for submitting expert reports and for filing discovery motions. Dkt. # 502. Plaintiff opposed

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the motion, arguing that defendant had not demonstrated “good cause” for an extension. Dkt. # 514.

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Also on January 12, 2012, defendants filed their own motion for issuance of letters rogatory for the

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purpose of obtaining documents from a third party in Italy. Dkt. # 503. This motion, which was noted

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for consideration on January 27, 2012, was not opposed by plaintiff. Both motions for issuance of

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letters rogatory were granted on January 27, 2012. Dkt. ## 556, 557.

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(6) On January 30, 2012, the Court, in ruling on KFI’s motion for an extension of time to file

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dispositive motions, found that “in light of the large number of pending motions and the Court’s current

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trial schedule,” the requested extension only to March 2 would be unrealistic. Dkt. # 561. The Court

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found that “[i]n the interest of orderly resolution of the parties’ discovery issues and to permit timely

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compliance with the Court’s orders on the pending motions, an extension of several months is

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appropriate.” Id. The list of reasons for the longer extension was not exhaustive, and the Court now

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notes that the resolution of discovery issues resulting from the issuance of letters rogatory to authorities

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in the United Kingdom and Italy may themselves take a considerable amount of time. Further,

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plaintiff’s motion for leave to take depositions beyond the presumptive limit of ten has now been

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granted (Dkt. # 589), and these depositions remain to be scheduled. As a result of these and other

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considerations, the Court exercised its inherent power to control its docket and extended the discovery

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period to July 9, 2012 and the trial date to November 5, 2012. Dkt. # 566.

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(7) Turning to the motion under consideration, namely defendant KFI’s motion for a protective

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order (Dkt. # 440), the Court finds that one aspect of the request is now moot. Defendant requested that

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the Court strike plaintiff’s CR 37 submissions in which they did not join. As noted above, the Court did

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strike one such motion after which the remaining three were withdrawn by plaintiff.

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ORDER - 3

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(8) The second part of KFI’s motion for a protective order requests that the Court appoint a

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special master to oversee the conduct of discovery. Plaintiff opposed this request on the basis that “less

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than one month remains to bring discovery motions.” Plaintiff’s Response, Dkt. # 454, p. 2. That

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objection is now moot in light of the extension of the discovery period to July 9, 2012. The Court shall

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accordingly grant defendant’s motion in part and refer certain discovery issues to a magistrate judge for

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resolution.

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(9) Plaintiff’s seven pending motions to compel responses to Requests for Production, filed

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December 22, 2011 and January 5, 2012, were all filed prior to the Court’s January 10, 2012 ruling and

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without the benefit of guidance on the “yarns at issue” ruling in this case. Further, it appears that the

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scope of discovery issues may have changed considerably since these motions were drafted.

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Specifically, the Court notes that several depositions were noticed for January and plaintiff has referred

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to additional document production that occurred prior to one deposition as a result of “newly found”

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documents. Plaintiff’s Reply on Motion to Compel, Dkt. # 534, p. 2. The Court will not speculate as to

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what extent these motions may have been rendered moot by further production of documents or

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resolution of disputes among the parties and declines to rule on them in their present form.

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Accordingly, the Court shall STRIKE plaintiff’s seven pending motions to compel (Dkt. ## 437, 465,

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468, 471, 474, 478, and 481). Plaintiff may renew these motions to reflect the current status of

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discovery, as appropriate, following a proper Rule 37 good faith effort to resolve the issues.

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(10) The Court notes that a continuing source of dispute in the discovery is the relevant starting

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date for production of documents. Defendants suggest that the appropriate date for document

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production is January 1, 2006. Defendants’ Omnibus Response to Motions to Compel, Dkt. # 512, p. 6.

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Plaintiff asserts that the Court, by its silence on the matter, has impliedly declined to so limit the date.

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Plaintiff’s Reply, Dkt. # 534, p. 3. To resolve this dispute and guide the parties in further discovery, the

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Court now finds that the relevant date for production of documents is January 1, 2006 as defendants

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contend.

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Plaintiff argues for an earlier date based on the belief that “KFI learned in the Coats case, which

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settled in 2005, that the Cashmerino yarns were mislabeled.” Plaintiff’s Reply, Dkt. # 534, p. 4 n. 5.

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ORDER - 4

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This statement refers to the case of Knitting Fever, Inc. v. Coats Holdings, Inc., et al., Cause No. 05-

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1065 (DRH)(WDW), filed in the United States District Court for the Eastern District of New York in

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2005. The case settled and was dismissed in July of 2007. The Court takes judicial notice of the court

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records in that case, which indicate that Cascade was given leave to intervene in the Coats case in order

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to seek documents regarding fiber content of yarns and documents relating to communications between

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KFI and its principals. See, Report and Recommendation, Cause No. C05-1065, Dkt. # 115. The

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motion for leave to intervene was granted on January 10, 2011, but Cascade’s subsequent motion to

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modify a protective order so that it could obtain the confidential documents was denied. Id., Dkt. # 132.

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In opposing Cascade’s motion to modify the protective order, KFI represented to the court that no fiber

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sample tests had been produced by Coats to KFI, and all documents designated as confidential were

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destroyed after settlement pursuant to the settlement agreement. Id., Dkt. # 123. It appears that it would

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be futile to now allow Cascade to request that these documents be produced in this litigation, and the

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Court will not allow Cascade to use discovery in this case to conduct a mini-trial on the Coats

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documents. Cascade is free to question defendants at deposition regarding documents which are a

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matter of public record in the Coats case. However, document production shall be limited to January 1,

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2006 and later.

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Accordingly, it is hereby ORDERED:

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(A) Defendant’s motion for a protective order regarding the Rule 37 filings is DENIED as moot;

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(B) Defendant’s motion for appointment of a special master to manage discovery is GRANTED

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IN PART, in that the Court shall refer specified discovery motions to Magistrate Judge James P.

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Donohue for hearing and decision;

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(C) Plaintiff’s pending discovery motions to compel, filed at Dkt. ## 437, 465, 468, 471, 474,

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478, and 481 are STRICKEN without prejudice to renewal to reflect the current status of discovery

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issues;

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(D) Apart from the re-filed motions to compel production of documents contemplated under

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paragraph (C), the parties must request leave from the Magistrate Judge before filing any additional

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discovery motions; and

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ORDER - 5

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(E) Plaintiff’s pending motion to compel production of documents withheld on the basis of

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privilege (Dkt. # 526) is hereby REFERRED to the Honorable James P. Donohue, pursuant to

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Fed.R.Civ.P. 72(a), for hearing and decision.

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Dated this 24th day of February 2012.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER - 6