Whotoo, Inc v. Dun & Bradstreet, Inc

Filing 127

ORDER within 14 days, D&B to file motion for attorneys' fees by Judge Richard A Jones. (RS)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WHOTOO, INC.,
Plaintiff,

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v.

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ORDER

DUN & BRADSTREET, INC.,
Defendant.

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Case No. C15-1629-RAJ

This matter comes before the Court on the status reports of the parties. Dkt. ##
124, 126. On December 29, 2016, Defendant Dun & Bradstreet, Inc. (“D&B”) filed a
motion for spoliation concerning Plaintiff WhoToo, Inc.’s (“WhoToo”) failure to produce
certain documents. Dkt. # 103. On January 19, 2017, the Court struck the trial date and
all pretrial deadlines pending the resolution of the motion. Dkt. # 118. On February 16,
2017, the Court found that further discovery was likely warranted, and thus, that it was
necessary to strike the parties’ pending summary judgment motions. Dkt. # 119. While
the court found that D&B’s motion raised serious issues concerning discovery
misconduct by WhoToo, the Court denied D&B’s requested remedies and reserved ruling

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on the appropriate scope of relief. Id. The Court ordered the parties to meet and confer

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and seek an out-of-court resolution to their dispute. Id. The parties have since engaged

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in mediation efforts, but those efforts have not been successful. Dkt. ## 122-23. On May

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3, 2017, the Court ordered the parties to submit status reports setting forth their positions

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on the remedies they believe are appropriate for WhoToo’s discovery misconduct and

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ORDER – 1

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their preferred trial date.
The Court finds that sanctions are appropriate. As discussed in the Court’s Order
on February 16, 2017, counsel for WhoToo has conceded that the documents at issue
should have been produced. Dkt. # 119. Counsel for WhoToo reaffirms this concession
in the status report under consideration. Dkt. # 124 at 2 (“As WhoToo has repeatedly
acknowledged, its failure to produce 25 e-mails in response to D&B’s discovery requests
was regrettable.”). Counsel filed documents in this Court advancing positions that he
should have known were inconsistent with those advanced in a matter pending in King
County Superior Court. Id. Further, the unproduced documents show that WhoToo’s
CEO provided testimony in this matter that squarely conflicts with testimony and other
evidence submitted in King County. Id.
Having concluded that sanctions are warranted, the Court turns to the parties’
proposed courses of action. D&B requests attorneys’ fees for preparing the spoliation
motion, attorneys’ fees for preparing the portions of its summary judgment brief that
would have materially differed had WhoToo complied with its discovery obligations, and
an opportunity to re-depose WhoToo’s CEO. As an alternative to these measures,
WhoToo offers to withdraw one of its breach of contract actions, permit its CEO to be redeposed on a narrower set of issues, and pay for the cost of a court reporter.
The Court finds that WhoToo’s proposal of withdrawing one of its breach of
contract claims is insufficient to remedy its discovery misconduct. As D&B correctly
notes in its status report, the withheld documents squarely undercut the merits of the
breach of contract action that WhoToo offers to withdraw. Those documents show that
WhoToo was experiencing significant difficulties in developing technology that was
germane to the contract at issue—this revelation undermines WhoToo’s previous
assertion that it had encountered no such difficulties. Allowing WhoToo to withdraw an
action rendered meritless by wrongfully withheld documents would not right the wrong
that WhoToo committed.
ORDER – 2

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The Court finds that D&B is entitled to attorneys’ fees for the spoliation motion
and a portion of the summary judgment briefing. The spoliation motion would not have
been necessary were it not for WhoToo’s discovery malfeasance and D&B’s approach to
the summary judgment briefing would have differed. Within fourteen (14) days from
the date of this Order, D&B is ORDERED to submit a motion for attorneys’ fees and
billing records that support its purported expenses.
The Court also finds that D&B is entitled to re-depose WhoToo’s CEO concerning
the withheld documents, as well as WhoToo’s records retention and discovery production
methods. WhoToo has placed the latter squarely at issue by failing to reliably produce all
responsive documents. WhoToo shall bear the cost of the deposition, including D&B’s
attorneys’ fees, the costs of a court reporter, and the production of a transcript. WhoToo
is not, however, required to pay for a videographer. The scope of this deposition shall be
limited to (1) the uncovered documents that prompted D&B to file its spoliation motion
and any additional documents produced thereafter; and (2) WhoToo’s document
preservation, collection, and production process.
The Court sets trial for November 6, 2017. The Court will enter a separate order
scheduling all applicable pre-trial deadlines.

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DATED this 12th day of June, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 3