Firepower Marketing Inc v. Red Robin International Inc

Filing 57

ORDER by Judge Benjamin H Settle granting in part and denying in part 44 Motion to Compel.(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 FIREPOWER MARKETING INC., d/b/a ROYALTY REWARDS, 9 Plaintiff, 10 v. 11 RED ROBIN INTERNATIONAL, INC, 12 Defendant. 13 CASE NO. C11-5338 BHS ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL 14 This matter comes before the Court on Firepower Marketing, Inc.’s (“Firepower”) 15 motion to compel discovery and production of documents (Dkt. 44). The Court has 16 considered the pleadings filed in support of and in opposition to the motion and the 17 remainder of the file and hereby grants in part and denies in part the motion for the 18 reasons stated herein. 19 I. PROCEDURAL HISTORY 20 On August 17, 2012, Firepower filed a motion to compel discovery and production 21 of documents and seeking costs and fees associated with the motion. Dkt. 44. On 22 ORDER - 1 1 September 4, 2012, Red Robin International, Inc. (“Red Robin”) filed a response in 2 opposition to Firepower’s motion. Dkt. 54. On September 7, 2012, Firepower filed a 3 reply. Dkt. 55. 4 5 II. FACTUAL BACKGROUND This matter arises out of a lawsuit filed by Firepower alleging, in part, that the use 6 of the RED ROYALTY mark for a customer loyalty program infringes on its federally 7 registered trademark rights, and its ROYALTY REWARDS mark, also for a customer 8 loyalty program, infringes on its trademark rights in its RED ROBIN BURGER mark 9 sandwich. Dkt. 44 at 2 & 26 at 1-13. Red Robin has counterclaimed alleging violations 10 of its own trademarks against Firepower. See Dkt. 18. 11 In Firepower’s motion, it sought to compel more than thirty responses or further 12 responses to interrogatories and requests for production from Red Robin. See Dkt. 44 at 13 2. Before Firepower filed its reply brief, Red Robin supplemented the responses to 14 Firepower’s interrogatories and requests for production. Despite these supplements, 15 Firepower argues that its motion to compel is not moot because (1) Red Robin’s answer 16 to interrogatory no. 25 is still incomplete and evasive, and (2) it takes issue with 17 Firepower’s method of producing documents 1 relevant to Document Request No. 64 18 19 20 1 Firepower argues that Red Robin has also failed to respond to Request 64. Dkt. 55 at 1. However, in its reply, Firepower makes no argument or cites any legal authority to demonstrate 21 how Red Robin has failed to be responsive, except by its allegedly “strategic[]” method of “document [dump]ing.” Dkt. 55 at 5-6. Therefore, the Court focuses only on Red Robin’s 22 method of document production. ORDER - 2 1 (“Request No. 64”). 2 Dkt. 55 at 1. Therefore, this order addresses these two remaining 2 issues. 3 III. DISCUSSION 4 Pursuant to Rule 37(a), a party propounding discovery may seek an order 5 compelling disclosure when an opposing party has failed to respond or has provided 6 evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). “[A]n evasive or 7 incomplete disclosure, answer, or response must be treated as a failure to disclose, 8 answer, or respond.” Fed. R. Civ. P. 37(a)(4)). Pursuant to Fed. R. Civ. P. 37(a)(5)(A), 9 “if the motion to compel is granted, the court must … require the party… whose conduct 10 necessitated the motion, … to pay the movant’s reasonable expenses incurred in making 11 the motion….” However, the court must not order this payment, “if …(ii) the opposing 12 party’s nondisclosure, response, or objection was substantially justified, or (iii) other 13 circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii). 14 A. Interrogatory No. 25 15 Firepower argues that Red Robin’s response is evasive, and it has not 16 supplemented its response with any additional information. Interrogatory No. 5 reads “If 17 you contend a hamburger is related to a customer loyalty program, describe all facts you 18 believe support your contention.” Dkt. 56-3 at 38. 19 20 21 2 If other discovery issues remain, post Red Robin’s supplements, Firepower does not make any argument about other specific issues in its reply. The Court assumes the other issues 22 identified in Firepower’s original motion were resolved by Red Robin’s supplements. ORDER - 3 1 Red Robin’s response to this request contains the objection that the request is 2 “overly broad and burdensome” in that it seeks, without limitation, the identification of 3 “all facts” supporting the contention. Id. Red Robin’s response to the interrogatory 4 continues for two additional paragraphs but provides little in the way of an answer to the 5 relatedness query posed by the interrogatory. See id. Essentially, Firepower argues that 6 Red Robin’s response focuses on the similarity of the marks at issue in its counterclaim, 7 rather than providing an answer to Firepower’s interrogatory regarding how a hamburger 8 is related to a customer loyalty program. Dkt. 55 at 4. The Court agrees with 9 Firepower’s contention. 10 Nonetheless, the Court finds the language of the interrogatory itself, namely the 11 phrase “all facts,” overly broad. Therefore, the Court orders Firepower to narrow the 12 factual basis on which it wishes Red Robin to answer. Despite the broadness of 13 Firepower’s original request, the Court finds that Red Robin’s answer is evasive in that 14 fails to focus on the question regarding the relatedness of a hamburger to a loyalty 15 program. Assuming the new interrogatory is not overly broad, the Court orders Red 16 Robin to answer the re-phrased interrogatory directly and without evasion. 17 B. Request No. 64 18 From Firepower’s reply brief, it appears there remains one central issue regarding 19 Request No. 64: that Red Robin’s supplements, particularly its second supplement, has 20 made it more difficult for Firepower to determine whether and how it has supplemented 21 its response. Dkt. 55 at 4. Firepower alleges that Red Robin has been “strategically 22 producing information,” with its second supplement containing 11,416 pages, including ORDER - 4 1 3,358 pages of new material, which it claims is merely a “document dump.” Id. at 5. 2 Thus, Firepower takes issue with Red Robin’s method of production, implying it is 3 intentionally hindering the discovery process. See id. at 5-6. 4 Based on the briefing, it is unclear to the Court whether the supplementation 5 described by Firepower pertains only to Request 64 or not. Since that is the only 6 document request specifically discussed in Firepower’s reply, the Court addresses the 7 impact of Red Robin’s production as if it related only on Request 64. However, the 8 general rule cited below applies broadly to all document production. 9 10 According to Fed. R. Civ. P. (“Rule”) 34(b)(2)(D): 15 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. 16 Firepower’s briefing does not clearly argue that Red Robin has failed to comply 11 12 13 14 17 with the above-cited rule, though its takes issue with Red Robin’s method of document 18 production. Because Firepower has not shown a violation of Rule 34(b)(2)(D) or clearly 19 demonstrated that Red Robin’s supplements to Request 64 were produced in bad faith or 20 to thwart discovery, the Court finds no discovery violation. Plaintiffs are not entitled to 21 have Defendants produce and organize discovery documents in their preferred manner, 22 unless agreed to by the parties. ORDER - 5 1 C. 2 Expenses Because the Court finds that (1) both parties share responsibility for the failure to 3 achieve a satisfactory answer to interrogatory no. 25 and (2) Red Robin did not violate 4 any rule regarding the method of document production with respect to Request no. 64, the 5 Court concludes that an award of expenses associated with Firepower’s motion to compel 6 is not justified at this time. IV. ORDER 7 8 Therefore, it is hereby ORDERED that Firepower’s motion to compel (Dkt. 44) is 9 GRANTED with respect to interrogatory no. 25 and DENIED with respect to Request 10 No. 64. 11 Dated this 22nd day of October, 2012. A 12 13 BENJAMIN H. SETTLE United States District Judge 14 15 16 17 18 19 20 21 22 ORDER - 6

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