This suit is rooted in events surrounding the bankruptcy driven foreclosure on the assets of Cohutta Water, Inc. (Cohutta). Plaintiff DS Waters of America, Inc. (DS Waters) and Defendants Fontis Water, Inc. (Fontis) and Smoky Mountain Water, Inc. (Smoky Mountain) are in the business of supplying bottled drinking water and bottled-water related equipment (e.g., water coolers) to residential and commercial customers. While DS Waters supplies bottled drinking water nationally under the trade name Crystal Springs, Fontis and Smoky Mountain are regional suppliers—both servicing the North Georgia region and Smoky Mountain additionally servicing Southeast Tennessee.

Prior to foreclosure, Cohutta was also in the bottled drinking water supply business. Cohutta filed for bankruptcy on June 29, 2009. On October 9, 2009, the Bankruptcy Court granted Stillwater Asset-backed Fund, LP (Stillwater), a Cohutta creditor, the right to repossess the Cohutta assets which had served as collateral for a loan Stillwater had extended to Cohutta in 2006. DS Waters entered into agreement with Stillwater to purchase the following Cohutta assets:

[Doc. No. 114, Ex. C]. DS Waters also acquired any claims Stillwater had related to the devaluation of any of the purchased assets [Id. at Ex. A]. Issues quickly arose as to the extent of the Cohutta assets purchased by DS Waters. For instance, it is Defendants' position that DS Waters did not acquire the trademark “Cohutta” through its agreement with Stillwater as the trademark was personally owned by Cohutta's president Steven W. Carroll. Moreover, according to Defendants, DS Waters did not acquire certain other Cohutta assets as the North Georgia National Bank's (NGNB) security interest in those assets was superior to Stillwater's. Once NGNB foreclosed on its security interest and repossessed certain Cohutta assets, it sold a number of those assets to Defendants and a third party. According to the January 4, 2010 Bill of Sale, Defendants purchased:

[Doc. No. 325-8, 3]. While Defendants began questioning the extent of assets purchased by DS Waters, DS Waters began to question Defendants' communications with Cohutta's customers. According to DS Waters, Defendants acquired Cohutta's customer list, a trade secret, and began to use them in September 2009 to solicit Cohutta customers. In reaching out to Cohutta's former customers Smoky Mountain and Fontis, allegedly, each represented that it had purchased Cohutta or purchased all or part of its assets. According to DS Waters, this representation caused customer confusion as to Cohutta's relationship with Defendants.

On February 5, 2010, DS Waters filed the instant action alleging claims under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), for false advertising and unfair competition and under Georgia law for misappropriation of trade secret, conversion of the Cohutta customer list, and tortious interference with contractual and business relations. Defendants counterclaimed, alleging that DS Waters had violated the Lanham Act by falsely advertising the scope of its purchase of Cohutta assets and by engaging in unfair competition in soliciting the business of Cohutta's former customers. Defendants also asserted a claim for interference with contractual and prospective business relations and a claim for conversion based on DS Waters's appropriation of water coolers and other equipment purchased by Defendants.

After a lengthy discovery period, the parties filed motions for summary judgment. Additionally, DS Waters filed a motion for sanctions for spoliation of evidence and Defendants filed a motion for jury trial. These motions are currently before the Court and are addressed below.

DS Waters requests that the Court levy sanctions against Fontis and Smoky Mountain for spoliation of evidence and for failure to cooperate during discovery. As a basis for seeking sanctions for spoliation, DS Waters cites to the destruction of the following categories of documents:

1) Excel spreadsheets (and all subparts of the masterfile) used to create a mailing list in September 2009 to send a postcard to Cohutta's former customers;

1) Customer lists and notes of employees Mike Ezell and Chris Allen;

Additionally, in its motion for leave to supplement its motion for sanctions, DS Waters references categories of documents, termed Missing Documents, which were the subject of its earlier filed motion to compel [Doc. No. 173] and which have also been allegedly destroyed by Defendants. According to DS Waters, at the parties' good faith conference, held at the direction of the Court after the motion to compel was filed, Defendants were asked to produce or acknowledge as missing the following documents:

Defendants' counsel advised counsel for DS Waters that the documents sought could not be produced. DS Waters contends that Defendants destroyed the Missing Document to prevent their production.[3]

To the extent the destroyed documents related to DS Waters's trade secret misappropriation claim (Fontis Documents (1)–(4)), DS Waters contends that, in recognition of the bad faith motivating the destruction, the Court should instruct the jury that Defendants did obtain and use trade secrets belonging to DS Waters to create the mailing lists and customer contact information in the GBC. To the extent the destroyed documents related to Defendants' claims for conversion, DS Waters requests the dismissal of those Counterclaim Counts. Lastly, DS Waters contends that Defendants' should face additional, unspecified sanctions for spoliation in relation to the Missing Documents.

With regard to its request for sanctions for Defendants' refusal to cooperate with discovery, DS Waters points to Defendants' “reckless delay in producing thousands of pages of documents.” According to DS Waters, although it had been asking Defendants' to turn over customer records for Cohutta's former customers since before the filing of this suit, Defendants waited until a few weeks before discovery was scheduled to close before producing more than 6,600 pages of documents relating to Cohutta's former customers. That conduct, DS Waters argues, should be the subject of sanctions under Rule 37 of Federal Rules of Civil Procedure. DS Waters requests sanctions in the form of attorneys' fee related to the filing of the motion for sanctions and an order allowing for the second deposition of Steve Carroll.

*4 The Court addresses the requests for sanctions for spoliation of evidence and for refusal to cooperate in discovery in turn.

Spoliation is “the destruction of evidence or the significant and meaningful alteration of a document or instrument.” Green Leaf Nursery v. E.I. DuPont De Nemours and Co., 341 F.3d 1292, 1308 (11th Cir. 2003) (internal quotation marks omitted). The imposition of spoliation sanctions is governed by federal law, as spoliation sanctions are considered an evidentiary matter. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). However, where applicable, courts may look to Georgia law as “[f]ederal law in this circuit does not set forth specific guidelines” regarding spoliation sanctions and as “Georgia state law on spoliation is wholly consistent with federal spoliation principles.” Id.

The burden rests with the movant to prove: (1) the evidence existed at one time; (2) the alleged spoliator was under a duty to preserve the evidence; and (3) the evidence was crucial to the movant being able to prove its prima facie case or defense. In re Delta/Air Tran Baggage Fee Antitrust Litg., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011); Southeastern Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M. D. Ga. 2009).

Under Georgia law, spoliation gives rise to the rebuttable presumption that the destroyed evidence would have been harmful to the spoliator. Baxley v. Hakiel Indus. Inc., 282 Ga. 312, 313, 647 S.E.2d 29, 30 (2007). Dismissal of a claim or a case in its entirety and exclusion of evidence are also appropriate spoliation sanction. But a successful showing of spoliation of evidence does not automatically guarantee sanctions. See Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (an adverse inference is drawn only upon a showing that the spoliation was predicated on bad faith). “To determine whether spoliation sanctions are warranted, a court must consider the [Flury] factors ....” Graff v. Baja Marine Corp., 310 Fed.Appx. 298, 301 (11th Cir. 2009) Thus, the courts consider the following factors:

Flury, 427 F.3d at 945. Since Flury, some district courts in this circuit have debated whether bad faith is a requisite to the imposition of spoliation sanctions. See, e.g., Stanfill v. Talton, 2012 WL 1035385, ___ F. Supp. 2d ____, (M.D. Ga. 2012) (discussing the district courts' interpretation of Flury as it pertains to the requirement of bad faith). At least one district court has read Flury as downgrading bad faith from a requirement to just one of the number of factors to be considered before the imposition of spoliation sanctions. Brown v. Chertoff, 583 F. Supp. 2d 1372, 1381 (S. D. Ga. 2008) (“[S]ince Flury, bad faith is only one factor to consider.”). However, “[t]o the extent that Flury creates a conflicting line of authority where bad faith is only a factor to be considered, the Court must follow the law set down in Bashir [which requires a showing of bad faith] because it is the earlier authority.” Woodard v. Wal-Mart Stores East, LP, 801 F. Supp. 2d 1363, 1372 (M.D. Ga. 2011). Thus, the movant must successfully show that the destruction of the evidence was in bad faith to obtain sanctions for spoliations.

*5 DS Waters argues that Defendants destroyed once existing, crucial documents in bad faith while they were under a duty to preserve the documents. It is conceded that the eleven categories of documents identified in the motion for sanctions existed at one time. However, the parties dispute over whether a duty to preserve existed at the time when most of the documents were destroyed, whether the documents were crucial, and whether Defendants acted in bad faith.[4]

Defendants' duty to preserve evidence relevant to DS Waters's claims arose upon their receipt of the October 23, 2009 cease and desist letter (October 23 Letter) from DS Waters. A duty to preserve arises once litigation is “pending or reasonably foreseeable.” Graff, 310 Fed.Appx. at 301. “To be reasonably foreseeable, litigation must have been contemplated—mere awareness of potential liability is insufficient to trigger a duty to preserve evidence.” Kraft Reinsurance Ireland, Ltd. v. Pallets Acquisitions, LLC, 845 F. Supp. 2d 1342, 1358 (N.D. Ga. 2011). The October 23 Letter identified DS Waters as the purchaser of all rights and claims to Cohutta's customer contracts and customer information, accused Defendants of improperly using Cohutta's confidential information, and demanded that Defendants turn over specific categories of information. The Letter notified Defendants that if they failed to comply with the demand DS Waters would “consider its potential courses of legal action” [Doc. No. 114, Exs. F, Q].[5]Fontis responded to the letter on the same day, October 23, 2009, outlining its position that DS Waters did not have the right to demand disclosure of the information listed in the cease and desist letter and that Fontis had a right to compete for Cohutta's former customers [Doc. No. 264-2, Ex. B]. While it is unclear whether Smoky Mountain also responded to the October 23 Letter, there is no indication that Smoky Mountain took a position that was any different from Fontis's. What is apparent is that as neither defendant intended to meet the demand made by DS Waters and as the October 23 Letter raised the possibility of future legal action for failure to meet the demand, Defendants should have known that litigation was reasonably foreseeable. Compare Managed Care Soluns. Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1326 (S. D. Fla. 2010) (concluding that a communication from plaintiff claiming that defendant had breached the exclusivity provision in their contract was sufficient to place the defendant under a duty to preserve documents relevant to that claim as the plaintiff had already sent an earlier demand letter threatening legal action over the breach of another provision of the contract), and Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 544, 659 S.E.2d 905, 908–09 (2008) (letter from the plaintiff's counsel seeking to settle and “avoid costly litigation” was sufficient to put the defendant on notice that litigation was contemplated), with Calixto v. Watson Bowman Acme Corp., No. 07-60077-CIV, 2009 WL 3823390, at *16 (S.D. Fla Nov. 16, 2009) (letter from the plaintiff's counsel seeking payment of royalties and reminding the defendant of prohibited sales territory insufficient to raise the duty to preserve as the letter did not suggest that litigation was imminent).

*6 The earlier communications from Stillwater did not give rise to a duty to preserve evidence. Stillwater sent Fontis a cease and desist letter on September 24, 2009. In the letter, Stillwater accused Fontis of the improper use of trade secrets and tortious interference with business relationships. The letter stated that Stillwater was a lien holder in collateral owned by Cohutta. [Doc. No. 114, Ex. E]. Fontis could have reasonably believed that litigation was not foreseeable at that point as it had identified a legitimate question over Stillwater's standing as a creditor to bring suit against a competitor of its debtor. See Calixto, 2009 WL 3823390, at *17 (letter threatening legal action did not provide notice of contemplated litigation as the recipient was not a proper party to a breach of contract action). Additionally, Stillwater claimed to be investigating its allegations and would “seek to recover any and all damages resulting from the actions of Fontis as the investigation dictates.” As it was Fontis's opinion that it had obtained Cohutta customer information from legitimate sources, it could have reasonably believed that Stillwater's investigation would fail to substantiate its allegations and that litigation was unlikely. Cf. Kitchens v. Brusman, 303 Ga. App. 703, 694 S.E.2d 667 (2010) (concluding that the defendant should have known that there was a potential for litigation where a lawyer was conducting investigations regarding a patient's diagnosis and the defendant doctor knew that he had likely misdiagnosed the patient's condition). Accordingly, the Court concludes that neither Defendant was under a duty to preserve evidence until October 23, 2009.

In September 2009, Fontis hired Cohutta's former drivers; they then started making deliveries for Fontis. Fontis claims that it gathered information that the drivers remembered about Cohutta's former customers and used that information to solicit customers; DS Waters claims that the information was obtained through the improper use Cohutta's customer list. According to DS Waters, the first destruction of evidence occurred around September 23, 2009, when Fontis's Jamie Carroll discarded the list of customers, including Cohutta's former customers, to whom he sent postcards soliciting business (Category 1 of the Fontis Documents listed above). Allegedly, the discarded list was generated using Cohutta's customer list. At that time, DS Waters had not transmitted its October 23 Letter. Thus, Fontis was not under a duty to preserve evidence, and the destruction of the Category 1 documents does not merit spoliation sanctions. Similarly, the discarding of any mail returned from the September mailing (part of Category 3 of the Fontis Documents) prior to October 23, 2009, does not merit spoliation sanctions.

With respect to Category 2 of the Fontis Documents, DS Waters provides no indication as to when the documents were destroyed. Although DS Waters cites to Fontis's 30(b)(6) deposition transcript, the cited portion only contains a discussion of the procedure used to import information into GBC.[6] Nevertheless, it is reasonable to assume that the Excel spreadsheets by which Fontis imported information into GBC were destroyed after October 23, 2009. Fontis's Jamie Carroll performed an initial import into GBC at the “end of October” [Doc. No. 342, 39:16–21] and the information in the spreadsheets was destroyed once it was imported into GBC.

As for the documents in Category 5, however, DS Waters has failed to pinpoint with enough specificity when the destruction occurred and the Court's review of the record has failed to produce the necessary evidence. While it appears that some of the handwritten and other notes regarding customer call-ins and visits were used to generate the mailing list used to send a letter soliciting business on November 6, 2009, DS Waters provides no evidence indicating when the notes were incorporated into the November mailing list or that the notes were destroyed after the duty to preserve arose. In view of DS Waters's failure to provide adequate support for its contention of spoliation with regard to Category 5 of the Fontis Documents, the Court is unwilling to conclude that their destruction occurred after the duty to preserve arose.

*7 The only documents relevant to DS Waters claims against Fontis for which there is a strong inference of destruction after October 23, 2009, are Category 2, Category 3, and part of Category 4 of Fontis Documents. Fontis used Excel spreadsheets and Word documents to create mailing labels for its November 6, 2009 mailing. It is reasonable to assume that the documents used to create the mailing labels were in existence at a time when Fontis was under a duty to preserve, and any mail returned from the November mailing would necessarily have come in after the duty to preserve arose. However, the Court concludes that the destruction of these documents does not merit spoliation sanctions. The Category 2, 4, and 5 documents are not crucial to DS Waters's prima facie case. As DS Waters itself notes, the November mailing list is one way of proving the use of trade secrets by Fontis. While, with the destruction of the November mailing list, DS Waters is unable to prove trade secret use by direct comparison of the lists, nothing prevents DS Waters from questioning on the stand those who were involved in generating the mailing list. With respect to Category 2 documents, while Excel spreadsheets Fontis created to keep track of incoming customer information could have provided DS Waters with information it could have matched to Cohutta's customer list, the spreadsheets were not definitive proof of the use of Cohutta's customer list by Fontis. Jamie Carroll testified that the spreadsheets containing customer information were compiled using information the drivers “brought back” from their delivery routes [Doc. No. 342, 41:7–15]. The information in the spreadsheets was then imported into GBC and the spreadsheets destroyed.[7] As DS Waters itself points out, the import of customer information into GBC results in the “sequential, automatic numbering of new accounts” [Doc. No. 264, 12 n.7]. This sequential numbering provides “circumstantial evidence” of Defendants' possession of the Cohutta customer list as it can indicate instances where “the names of customers were entered in before they ever became customers” [Id.; see also id. at 9, ¶2]. Additionally, Fontis sends monthly invoices to its customers and the invoice dates indicate the date of water delivery. This information would also provide a point of comparison. Lastly, the returned November mailings (Category 4) are also not crucial to DS Waters's case. First, there is a question over how many mailings were in fact returned, and, second, it is unlikely that a large enough number of mailings would have been returned as undeliverable to afford a useful comparison with the Cohutta customer list. While potentially useful, DS Waters has failed to show that this information is crucial to its prima facie case. Compare Griffin v. GMAC Commercial Finance, LLC, No. 1:05-CV-199-WBH-GGB, 2007 WL 521907 (N.D. Ga. Feb. 15, 2007) (no spoliation sanctions, in part, because although some documents may have been destroyed the plaintiff remained free to question those involved), with Flury, 427 F.3d at 945 (spoliation sanction against the plaintiff were warranted as he failed to preserve the vehicle which contained evidence “central to his case” and deprived the defendant of the opportunity to examine the vehicle's condition, which was “critically important to the case”), Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360, (N.D. Ga. 2008) (spoliation sanctions warranted where “arguably the most relevant email” destroyed), andKitchens, 303 G. App. 703, 694 S.E.2d 667 (spoliation sanctions appropriate where the defendant discarded a preserved block of tissue from a patient's first biopsy, which made it impossible to create new tissue slides and foreclosed the chance to determine whether the patient should have been diagnosed as having breast cancer at a time when her doctor determined that she was cancer free); R&R Insulation Servs., Inc. v. Royal Indem. Co., 307 Ga. App. 419, 705 S.E.2d 223 (2010) (concluding that the repairs made after a fire deprived the defendant of the opportunity to support their theory that the fire started in another location and that there existed no substitute for the actual evidence lost).

Next, the Court considers the documents (Category 6 and 7) relevant to DS Waters's defense to Fontis's counterclaim for conversion of water coolers. By January 22, 2010, Fontis had in its possession the cooler serial number lists from the Cohutta warehouse (Category 6). The data from the lists were imported into GBC and the original lists were discarded. Fontis also created additional spreadsheets containing cooler serial numbers (Category 7). The numbers were imported to an inventory list and the spreadsheets discarded. Fontis contends that it was not under a duty to preserve this information as the information was destroyed at a time it was not contemplating litigation over its claim of conversion. While Fontis was on notice that DS Waters was contemplating litigation, Fontis's communications with DS Waters do not indicate that Fontis was contemplating bringing a claim against DS Waters for conversion such that a duty to preserve arose at the time the documents were destroyed. On January 7, 2010, Fontis sent a letter to DS Waters accusing it of removing water coolers belonging to Fontis from customer locations and demanding the return of the coolers [Doc. No. 264-3, Ex. C]. Nothing in the letter indicates that Fontis was contemplating litigation over the issue. In fact, Fontis had no reason to believe that the issue would not be amicably resolved as, in its letter in response, DS Waters exhibited a willingness to reimburse Fontis for coolers that were picked up by DS Waters and to ensure that Fontis “obtain[s] precisely the property [it] claims to have purchased from the North Georgia National Bank” [Doc. No. 231-9. Ex. 8]. Once suit was filed on February 5, 2010, Fontis should have become aware that the issue relating to the water coolers removed by DS Waters would not be amicably resolved and that it would have to litigate the issue. However, the record does not indicate that Fontis contemplated litigation over that issue before suit was filed. In fact, Mary Raugh testified that Fontis was not contemplating suing DS Waters before DS Waters filed suit [Doc. No. 203, 149:8–14].[8] DS Waters has failed to show that the Category 6 and 7 documents were discarded after Fontis began contemplating litigation over the issue. Accordingly, no spoliation occurred with respect to these documents.[9]

*8 DS Waters argues that Smoky Mountain destroyed documents crucial to DS Waters's case or defenses after the duty to preserve arose. As determined above, Smoky Mountain was under a duty to preserve documents relating to DS Waters's claims as of October 23, 2009. While DS Waters argues that documents belonging to Smoky Mountain Documents Category 1, 2, and 3 were destroyed, it fails to show that the destruction occurred after the duty to preserve arose. With respect to the customer lists and notes from Mike Ezell and Chris Allen (Category 1), the testimony cited by DS Waters indicates that Smoky Mountain driver Mike Ezell started the list on September 21, 2009, and then collaborated on a subset list with Chris Allen “two to three weeks after the 21st” [Doc. No. 202, 105:3–107:2]. Mike Ezell and Chris Allen would “work through a page and complete it ... [and] cross it off” and then Melissa Allen would “review that ... everything was crossed off before it was pitched” [Id. at 106:24–107:2]. However, nothing in the record indicates that the documents were “pitched” on or after October 23, 2009. Similarly, DS Waters provides no indication of when the Category 2 documents were destroyed. Melissa Allen imported information she received from Mike Ezell into an Excel spreadsheet created after September 21, 2009, and she continued to input information into the spreadsheet for three to four weeks [Doc. No. 202, 64:2–65:9]. At some point the information from the spreadsheet was imported into GBC and the spreadsheet discarded. It is unclear when the destruction occurred; all the record shows is that the spreadsheet was in use until, at the latest, a few days before the October 23 Letter from DS Waters. It could have been destroyed either before or after the receipt of that letter.

Additionally, although DS Waters contends that, like Fontis, Smoky Mountain also destroyed cooler serial number lists recovered from the Cohutta warehouse (Category 3), DS Waters's contention of evidence spoliation on Smoky Mountain's part with respect to the list(s) fails for the same reason as its argument of spoliation with respect to Category 6 and 7 documents by Fontis. Specifically, DS Waters has failed to show that Smoky Mountain was contemplating filing a claim with regard to the coolers in dispute at the time the destruction occurred. Mary Allen's testimony indicates that the list was used to match up cooler numbers with Smoky Mountain customers, a process that took “maybe two days” in “the month of January maybe or beginning of February,” [Doc. No. 202, 109:2–9], and then shredded [Id. at 110:1–2]. Thus, the record fails to show that the list was destroyed after the duty to preserve arose. Lastly, with regard to the destroyed e-mails (Category 4), barring their listing by DS Waters as a category of documents destroyed, there is no discussion with regards to them by DS Waters.[10] Nonetheless, the Court looks to DS Waters's citation to the record in association with the e-mails. It appears that the e-mails concern negotiations between Smoky Mountain and “the bank,” presumably NGNB, over the purchase of Cohutta assets [Doc. No. 202, 94:22–95:4]. There is no indication of when, and if, the e-mails were destroyed [Id. at 95:9–21]. In as much as DS Waters has the burden to show that spoliation occurred, it has failed to meet this burden.

DS Waters has failed to show spoliation of the Missing Documents. While DS Waters, in its motion to supplement, argues generally that Defendants destroyed the Missing Documents after the duty to preserve arose, it makes no particularized showing in support of its contention. First, although DS Waters shows that Fontis driver Sean Carmichael turned in customer notes to Fontis (Category 1), it fails to show that those notes were destroyed after Fontis's duty to preserve arose on October 23, 2009. Second, DS Waters argues that Fontis destroyed e-mails to/from Sean Carmichael (and/or other Fontis employees) and its customers (Category 2). However, DS Waters has failed to meet its burden to show that the Category 2 documents existed at one time or, if they existed, were destroyed after the duty to preserve arose. The only citation DS Waters provides in support of its contention of spoliation of Category 2 documents is the deposition testimony of Sean Carmichael. Sean Carmichael testified that although he has a Fontis e-mail account and his e-mail address is on his business card, he cannot remember ever using the account to write e-mails [Doc. No. 187, 51:23–52:2]. He has received occasional e-mails from customers [Id. at 52:7–9], but the record fails to reveal when those e-mails were received or when they were deleted.

*9 Third, citing the deposition testimony of Kevin Holmes, DS Waters argues that Fontis is responsible for the spoliation of e-mails related to its blog postings (Category 5). Kevin Holmes testified that he received and responded to an e-mail from Jennifer Wilkes, the writer of the blog [Doc. No. 339-2, 185:14–17]. Even assuming that the e-mail correspondence was destroyed after the duty to preserve arose, DS Waters has not shown that the lost correspondence forms a crucial element of its case. In fact, it does not even address the blog-related e-mails beyond the point of showing that they have been destroyed. Fourth, DS Waters has shown that Mike Ezell sent an e-mail to Smoky Mountain at the end of each work day to pass along information about the customers he had visited [Doc. No. 338, 36:7–22]. Smoky Mountain does not provide an explanation for why Mike Ezell's daily e-mails have not been produced; presumably, they have been destroyed. Nonetheless, the presumed destruction does not warrant spoliation sanctions because DS Waters has failed to bear its burden of showing that the e-mails are crucial to its case; while DS Waters discusses the importance of original documents from which information was placed into GBC in general, it offers no discussion on the relevance of Mike Ezell's daily e-mails [see Doc. No. 333-1, 16–17]. As for e-mail communications with customers, with the exception of a single communication, DS Waters has not shown that Mike Ezell communicated with his customers via e-mail or vice versa. Mike Ezell testified that he only remembers sending a single e-mail to one customer and does not know of any customer having his e-mail address [Id. at 46:6–14]. DS Waters does not address the importance of Mike Ezell's single e-mail to a customer to its case.

Lastly, DS Waters contends that the original documents stored at Smoky Mountain's Calhoun facility (Category 4) have been destroyed. According to Mike Ezell, he is the only one who works out of the Calhoun location [Doc. No. 338, 55:17–19] and he stores his daily work reports and may have stored “some” hand tickets he had written when he first started working for Smoky Mountain in a two-drawer filing cabinet there [Id. at 48:7–20; 52:5–6; 53:18–21; 54:14–55:11]. According to DS Waters, Smoky Mountain did not produce these original documents and its counsel indicated that all of the Calhoun files, which were transferred to Smoky Mountain's Tennessee headquarters, were searched but no other responsive documents were found. Once again, Smoky Mountain supplies no satisfactory explanation for where Mike Ezell's work reports and any hand tickets written by him have not been produced. However, DS Waters also has failed to show that Category 4 Missing Documents are crucial to its case. According to Mike Ezell, his daily work reports are print outs he generates from the computer at the Calhoun location. While DS Waters contends that the original printouts are missing, nowhere does it mention that, to the extent the reports remain on the computer, it is foreclosed from accessing the Calhoun computer and locating the relevant files. DS Waters contends that the daily work reports could only include customer information already in GBC and so, to the extent the reports listed Cohutta's former customers before Smoky Mountain hired former Cohutta drivers, they would show that Smoky Mountain misappropriated Cohutta records. Thus, for the purpose of that showing, the relevant time period for the work reports is the time before Smoky Mountain's Melissa Allen finished importing data related to Cohutta's former customer into GBC. As discussed above, Melissa Allen generated a spreadsheet containing customer information around September 21, 2009, after Smoky Mountain hired Cohutta's driver, and she continued to input information into that spreadsheet for three to four weeks thereafter [Doc. No. 202, 64:2–65:9]. At some point she imported the information into GBC and the spreadsheet was destroyed. Thus, the relevant work reports generated in September and the earlier part of October would be relevant. But DS Waters provides no indication of when those work reports were destroyed much less that they were destroyed before a duty to preserve arose. Additionally, DS Waters does not show how “some” hand tickets which may have been stored at the Calhoun facility are crucial. Thus, DS Waters has failed to show spoliation of evidence, and its motion for sanctions [Doc. No. 231], to the extent it concerns spoliation, is DENIED.

DS Waters seeks sanctions, under Rule 37 of the Federal Rules of Civil Procedure, against Defendants for failing to produce more than 6,000 pages of documents until a few weeks before the end of discovery. According to DS Waters, it had been seeking the information since before it filed suit and had specifically requested that Defendants turn over Cohutta-related information in their possession in its Request for Productions but the relevant documents were not produced in a timely manner.

*10 This case has had a prolonged and contentious discovery period. Ultimately, the Court informed the parties that discovery would end on October 21, 2011, and no further extensions would be grated under any circumstances [Doc. No. 98]. As of the Court's order on July 21, 2011, each party was aware that it had a finite window in which to meet its discovery obligations and seek the Court's intervention in the event its opponent failed to meet its own discovery obligations. At no point following the parties' conference to attempt to resolve production issues did DS Waters bring to the Court's attention that Defendants had failed to produce relevant documents[11] DS Waters had the opportunity to do so during discovery—it did not avail itself of that opportunity before the documents were finally produced.[12]

Sanctions under Rule 37 are appropriate where a party has failed to produce the information sought. Here, DS Waters seeks Rule 37 sanctions—attorneys' fees and a second deposition of Steve Carroll—for production which occurred, albeit belatedly, during discovery. Rule 37 is not the appropriate vehicle for sanctions under this situation. Accordingly, DS Waters's motion for sanctions [Doc. No. 231], to the extent it concerns Defendants failure to cooperate during discovery, is DENIED.

Defendants move for a jury trial pursuant to Rule 39(b) of the Federal Rules of Civil Procedure. “The right of trial by jury ... is preserved to the parties inviolate.” Fed. R. Civ. Proc. 38. Nevertheless, a party may “waive this right by failing to make a timely demand upon the courts.” LaMarca v. Turner, 995 F.2d 1526, 1545 (11th Cir. 1993). Here, Defendants failed to demand a jury trial in accordance with Rule 38(b). They now seek refuge in Rule 39(b), which permits the court, upon motion, to “order a jury trial on any issue for which a jury might have been demanded.”

As a general rule, “the court should grant a jury trial in the absence of strong and compelling reasons to the contrary.” Mesa Petroleum Co. v. Conglio, 629 F.2d 1022, 1029 (5th Cir. 1980).[13] The following factors are relevant to the consideration of a Rule 39(b) motion:

Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir. 1983). First, the issues raised in this case are best tried to a jury. That is so because this case raises questions such as whether the parties made misrepresentations likely to cause customer confusion or mistake and involves fact-intensive issues, the resolution of which is ideally suited to the collective deliberations of the jury. See In re Peralman, No. 6:10-cv-181-Orl-28DAB, 2010 WL 3431825 (M.D. Fla. Aug. 27, 2010) (granting Rule 39(b) motion where case presented “many interrelated, fact-intensive issues which [were] best determined by a jury”). Second, neither the Court's nor DS Waters's schedule will be disrupted by the grant of this motion. No pre-trial order has been filed and a pre-trial conference has yet to be scheduled. No trial date has been set. Third, the degree by which DS Waters may be prejudiced by a jury trial is low. Thus far, the parties have engaged in discovery with the apparent objective of gathering all relevant information in support of their claims. If, in fact, discovery was streamlined with the intent of obtaining information merely suitable for use during a bench trial, DS Waters does not raise this contention in its opposition to the Rule 39(b) motion.[14] Furthermore, DS Waters has filed a motion for summary judgment and responded to Defendants' motions for summary judgment—it would have likely taken these steps in an attempt to narrow the issues for trial even if jury trial had been demanded. Furthermore, DS Waters itself exhibited the impression that the case would be tried to the jury. With regard to its own motion for sanctions for spoliation, DS Waters asked the Court for an adverse jury instruction.[15] To be sure, a demand for a jury trial was not made in this case. However, in view of the foregoing, the Court cannot say that DS Waters would be prejudiced to any great extent should this case be tried to a jury. Thus, the first three Parrott factors weigh in favor of Defendants request for a jury trial.

*11 The last two Parrott factors weigh against the grant of a jury trial. As DS Waters correctly points out, Defendants waited a considerable period of time before requesting a jury trial. Defendants argue that their delay in seeking a jury trial was relatively short as they filed the instant motion within less than three months from the time they could have last demanded a jury trial—up to fourteen days of their filing the answer to the first amended complaint. Defendants' interpretation of Rule 38 is inconsistent with that of the Eleventh Circuit. Under Rule 38(b), a party may demand a jury trial “no later than 14 days after the last pleading directed to the issue is served.” Where the right was previously waived, however, “[a]mendments [to the pleadings] not introducing new issues will not give rise to a demand for a jury trial.” Gujardo v. Estelle, 580 F.2d 748, 752–53 (5th Cir. 1978); see In re Financial Federated Title & Trust, Inc. 309 F.3d 1325, 1329–30 (11th Cir. 2002) (noting that a previously waived right to a jury trial is revived by an amended complaint only to the extent the amended complaint raises new issues). “New issues” means “new issues of fact.” Gujardo, 580 F.2d at 753. Although the first amended complaint contained “factual amendments” [see Doc. No. 106-1, 4], Defendants do not contend that the amendment raised any new, material issues of fact. Accordingly, Defendants' opportunities to demand a jury trial came and went in early 2010, within weeks of the filing of their answers to DS Waters's and Stillwater's complaints. Having let those chances pass by, Defendants then waited more than eighteen months to move the Court for a jury trial.

Moreover, Defendants provide no satisfactory reason for the delay. According to Defendants, the parties made a mutual mistake in that both believed that a jury trial had been requested where neither party had made a cognizable request. Defendants point to the Civil Cover Sheet accompanying the initial complaint where DS Waters answered in the affirmative to the question whether a jury demand was included in the complaint [Doc. No. 1-2, ¶ VII]. They also draw the Court's attention to the docket entry script for their answer to the first amended complaint, which indicates a jury demand [Doc. No. 150].[16] However, Rule 38(b) outlines clearly the procedure for making a jury demand. The Court has no doubt that Defendants' counsel are well aware of that procedure, and it was clear from the record that no jury demand was made in accordance with that procedure. Here, Defendants have failed to provide any better reason than inadvertence for their failure to timely demand a jury trial. However, this determination is not dispositive as “the normal practice in the district court is to balance all the factors.” Parrott, 707 F.2d at 1267.[17] Having considered the Parrott factors, the Court concludes that the balance favors Defendants' request for a jury trial. Accordingly, Defendants' motion for jury trial [Doc. No. 282] is GRANTED.

Defendants object to DS Waters's reliance on the declaration and deposition testimony of Jimmy J. Jackson—who has been engaged as an expert witness to quantify DS Waters's damages—to establish the following facts:

Defendants contend that the statements objected to are inadmissible as Mr. Jackson lacks the requisite personal knowledge and has not reviewed the record. Additionally, Defendants argue that the above listed statements are inadmissible as expert testimony concerning matters the trier of fact is well able to understand without an expert's assistance. While DS Waters argues that its citation to Mr. Jackson's declaration for the proposition that Fontis drivers could not have easily recreated the customer list is based on Mr. Jackson's “sound mathematical analysis of the sequencing of the customer account numbers in Defendants' database” [Doc. No. 284, 14], the Court remains unconvinced. Mr. Jackson's opinion that Fontis gathered customer information from the Cohutta customer list in September 2009 does not support the proposition put forward by DS Waters's.[19] Accordingly, Defendants' objection to Statement 1 is SUSTAINED.

Defendants argue that Statements 2, 3, and 4 fail to assist the trier of fact because the average juror can also review the evidence reviewed by Mr. Jackson and easily appreciate the sequential numbering of customers in the database and the date of a customer's receipt of its first invoice. The Court, however, concludes that Statements 2 and 4 are at least tangentially supported by the cited portions of Mr. Jackson's declaration and deposition testimony. As to the question of assisting the trier of fact, Mr. Jackson's testimony regarding his analysis and interpretation of the significance of the trend he has observed in Fontis's customer data will assist the trier of fact. Accordingly, Defendants' objection to Statements 2 and 4 is OVERRULED. However, their objection is SUSTAINED as to Statements 3. The Court is hard pressed to see how DS Waters's statement that customers were added into the Fontis database before the date of their contract or without a contract is supported by the cited portion of Mr. Jackson's declaration. That portion, as discussed above, merely states Mr. Jackson's opinion that Fontis entered Cohutta customer data into its database in September 2009. As to Statement 5, DS Waters admits that the proposition in Statement 5 is not supported by the cited portion of Mr. Jackson's declaration. But it argues that the statement is supported by the Amended Expert Report of Kathleen Ransome. In the interest of adjudicating the merits of the issue and as DS Waters has provided a corrected citation to the record, Defendants' objection to Statement 5 is OVERRULED. In sum, Defendants' objection to the testimony of Jimmy Jackson is SUSTAINED IN PART and OVERRULED IN PART.

*13 DS Waters created a Call Log listing the calls a team of its customer service representatives (Cohutta Team) made to Cohutta's former customers. Each member of the Cohutta Team was provided a listing of Cohutta customers to call, and the team members logged the customer responses they received in the Call Log. Some Call Log entries noted customers as recounting being told by Fontis that it had bought out Cohutta [e.g., Doc. No. 245, Call Log Entry No. 1432, 12238]. DS Waters relies on the Call Log as evidence that Fontis made misrepresentations to former customers of Cohutta. Fontis objects to DS Water's use of the Call Log; it argues that the Call Log contains multiple layers of hearsay.

As an initial matter, the Call Log contains out of court statements offered for their truth—hearsay under Rule 801(c) of the Federal Rules of Evidence. The Court will consider the Call Log at the summary judgment stage because the relevant statements of the customers, although “submitted in inadmissible form,” are “otherwise admissible” and can be readily reduced to admissible form at trial by the in-court testimony of the customers who relayed the information to the Cohutta Team. McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996); Macuba v. Deboer, 193 F.3d 1316, 1323–24 (11th Cir. 1999). The underlying statements of Fontis representatives are admissible non-hearsay as statements by a party opponent. See Fed. R. Civ. Proc. 801(d)(2). Defendants argue that as the customers did not recount the identities of the Fontis representatives DS Waters cannot show that the statements were made within the scope of the representatives' employment with Fontis as required by Rule 801(d)(2)(D). However, Defendants do not contest DS Water's assertion that there is only a small group of individuals at Fontis, three drivers and two management personnel, to whom the statements could be attributed. Further, Defendants do not contend that the statements allegedly made by Fontis representatives were outside the scope of employment of its management personnel. They do argue that DS Waters has failed to indicate that the job description of Fontis drivers “included the authority to discuss potential corporate acquisitions” [Doc. No. 301, 9]. DS Waters does cite to deposition testimony of Fontis employees indicating that Fontis drivers were going to attempt to sign-up Cohutta's former customers for Fontis. Kevin Holmes testified that as part of his water delivery route for Fontis, he went out on one of his old routes for Cohutta and solicited customers for Fontis [Doc. No. 339, 75:18–76:24]. Thus, to the extent the statements reported by Cohutta's former customers were made by Fontis drivers, the statements were made in furtherance of Fontis's solicitation of customers. Defendants do not rebut DS Waters's contention that selling to Cohutta's former customers was one of the duties of the Fontis drivers. As such, whether made by the two Fontis management personnel or by the three Fontis drivers, the statements were made within the scope of employment and are attributable to Fontis.

Additionally, while the Call Log itself recounts the statements made by customers to the Cohutta Team, the alleged statements by Fontis, as discussed above, are otherwise admissible and can be reduced to admissible form at trial by the testimony of the customers themselves.[20] Citing McMillian, Defendants argue that here there is nothing more than a suggestion that the statements could be reduced to admissible form. According to Defendants, it is unlikely that customers, if called to testify, will recall any statements made to them by Fontis more than two years ago. McMillian is inapposite. In McMillian, the plaintiff urged the trial court to consider at summary judgment the former statements of coercion by witnesses, which were contradictory to their most recent testimony, on the basis that the witnesses “might change their sworn affidavit testimony and admit to being coerced” during the trial. 88 F.3d at 1584. The court concluded that “a suggestion that admissible evidence might be found in the future is not enough to defeat a motion for summary judgment.” Id. DS Waters does not seek to introduce the Call Log for the same purposes as the McMillian plaintiff. Additionally, it cannot be said with any certainty that Cohutta's former customers will fail to recall statements made by Fontis representatives on the stand. Accordingly, Defendants' objection to DS Waters's use of its Call Log at summary judgment is OVERRULED.

*14 DS Waters has presented the declaration of K. Dillon Schickli, Co-Chief Executive Officer of DS Waters, in support of its opposition to Fontis's motion for summary judgment. Defendants object to paragraphs 4 through 7 of Mr. Schickli's declaration. Paragraph 4 of Mr. Schickli's declaration states that Cohutta customer information was not “publically available or in the public domain” [Doc. No. 263-1]. Defendants argue that this statement represents a legal conclusion, which Mr. Schickli does not have the requisite expertise to draw and which is not based on sufficient facts. A full reading of paragraph 4 indicates that Mr. Schickli's statement is sufficiently based on his interaction with Steve Carroll and Stillwater and his own personal knowledge rather than a legal conclusion. Defendants additionally contend that paragraph 4 and 6 contain inadmissible hearsay. In paragraph 4, Mr. Schickli states: “I was told by both Steve Carroll and Stillwater ...”; in paragraph 6, he states: “Neither Steve Carroll nor Stillwater made the Cohutta customer list available to DS Waters ...” [Doc. No. 263-1]. The Court will consider both statements at summary judgment. While paragraph 4 contains hearsay, the statement can be reduced to admissible from through the testimony of Steve Carroll, whom DS Waters intends to call as a witness. With regard to the paragraph 6 statement, Defendants provide no explanation as to why the omission (failure to provide the list) constitutes hearsay. Nonverbal conduct can be considered a statement under the hearsay rule if it was “intended as an assertion,” Fed. R. Evid. 801(a), but at no point do Defendants argue that the omission at issue was intended as an assertion. Thus, Defendants' objection to paragraph 4 and 6 is OVERRULED.

Paragraph 5 of Mr. Schickli's declaration states: “Based on my experience of over twenty-five (25) years working in the beverage delivery industry, I believe that recreating a customer list from route drivers' memories would be impossible, especially without speaking to each and every customer at their location” [Doc. No. 263-1]. Defendants argue that Mr. Schickli is attempting to testify as an expert although he has not been disclosed as an expert. DS Waters counters that Mr. Schickli is not prohibited from offering his opinion testimony as a lay witness. Lay witnesses are indeed permitted to offer opinion testimony. Fed. R. Evid. 701. However, this testimony must be “rationally based on the witness's perception.” Fed. R. Evid. 701(a). See U.S. v. Novaton, 271 F.3d 968 (11th Cir. 2001) (law enforcement agents could offer opinion testimony as lay witnesses regarding their understanding of the meaning of code words used by the defendants as their opinions were based on their perceptions and experience with monitoring wiretaps); Agro Air Assoc. v. Houston Cas. Co., 128 F.3d 1452 (11th Cir. 1997) (employees could offer their opinion as lay witnesses that the commingling of two insurance policies resulted in the plaintiff's difficulty in finding a new insurer as the opinions were based on the employees' perceptions of their own interactions with underwriters and their extensive experience in the aviation insurance business). DS Waters fails to lay adequate foundation to show how Mr. Schickli's many years in the beverage deliver industry have led him to form the opinion that recreating a customer list from route drivers' memories would be impossible. Unlike in Novaton and Agro, here, there is no evidence that Mr. Schickli has gained this knowledge based on his own personal observations while attempting to recreate such lists from drivers' memories or through his personal experiences and interactions with drivers. “A Rule 701 witness cannot simply assert conclusions; his testimony must rest upon an antecedent predicate and foundation.” KW Plastics v. U.S. Can Co., 131 F. Supp. 2d 1265, 1274 (M.D. Ala. 2001). Thus, Defendants' objection to paragraph 5 is SUSTAINED

With regard to the remainder of Defendants' objections, the Court concludes that Mr. Schickli may offer his opinion on the value of the Cohutta customer list (paragraph 7) as his opinion is based on his own perception and experience. However, his statement that “the list was not readily ascertainable by proper or ethical means by Cohutta's competitors” [Doc. No. 263-1, ¶ 7] shall be disregarded as it lacks the necessary factual foundation. As such, Defendants' objection to paragraph 7 is SUSTAINED IN PART and OVERRULED IN PART.

Fontis objects to the declaration of DS Waters's corporate counsel Kimberly Lerman as it introduces into evidence confidentiality agreements signed by DS Waters employees and an excerpt from DS Waters's Employee Handbook. Fontis argues that the documents should be disregarded as they are unauthenticated and as they were not only produced two months after the close of discovery but they were not referenced in DS Waters's initial disclosures or produced in response to Fontis's second request for production.

*15 Apart from the unauthenticated nature of the documents, the chief issue is whether DS Waters may rely on documents it failed to disclose during discovery in response to Fontis's request for production. The documents at issue are relevant to DS Waters's claim for misappropriation of trade secrets as the claim alleges that Defendants improperly obtained and used the Cohutta customer list. The Employee Handbook section on confidentiality and the confidentiality agreements signed by DS Waters employees are relevant to show the efforts DS Waters made to maintain the confidentiality of the Cohutta customer list. Nevertheless, DS Waters did not disclose the existence of the documents in its initial disclosures where it was required to produce a copy or description of all documents it may use to support its claims or defenses. See Fed. R. Civ. Proc. 26(a)(1)(A)(ii). During discovery, DS Waters was specifically asked to produce the personnel records of named DS Waters employees. It objected to the request as seeking confidential and proprietary information that was neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. It then waited two months after the end of discovery to produce the personnel records at issue in an effort to rebut Defendants' contention at summary judgment that DS Waters did not have its employees sign confidentiality statements. DS Waters shifts the onus onto Defendants, arguing that Defendants never challenged DS Waters objections, did not move to compel production, and did not even meet and confer over the objection. If the scenario were that a party that had failed to carry its burden to zealously pursue discovery later sought to compel the post-discovery production of documents, the Court would agree that the party would not be entitled to compel the production. However, this is an instance where the party that failed to produce the evidence during discovery seeks to rely on that evidence post-discovery. DS Waters may not now seek to rely on that which it withheld during discovery. It had the burden of producing all relevant documents sought. DS Waters's argument that the blame for its post-discovery production of relevant documents rests with Defendants is unavailing. Similarly unavailing is its position that there was ambiguity regarding the relevance of the documents at issue as “efforts to maintain the list after its purchase was never raised as an issue in such a manner—at least not as directly as Fontis did in its summary judgment motion—during the action” [Doc. No. 286, 5]. DS Waters's failure to produce during discovery was far from harmless. Defendants were prevented, at the least, from deposing DS Waters's employees regarding their understanding of the breadth of the confidentiality agreements. Accordingly, Fontis's objection to the declaration of Kimberly Lerman is SUSTAINED.[21]

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it is “a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The moving party bears the initial burden of showing the court, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party's burden is discharged merely by “showing—that is, pointing out to the district court —that there is an absence of evidence to support [an essential element of] the nonmoving party's case.” Celotex Corp., 477 U.S. at 325 (1986) (internal quotation marks omitted). In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996). Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no “genuine [dispute] for trial” when the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. (citations omitted). All reasonable doubts, however, are resolved in the favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

Defendants counterclaim under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), alleging unfair competition (Count II) and false advertising (Count III) by DS Waters. As both claims are predicated on the same set of facts—DS Waters's written and oral communications with customers—the Court analyzes them together applying the elements for a false advertising claim. U.S. Pharm. Corp. v. Trigen Labs., Inc., No. 1:10-cv-0544-WSD, 2011 WL 446148, at *6 (N.D. Ga. Jan. 27, 2011). Additionally, the Court also analyzes Defendants state-law claims for unfair competition (Count IV) and deceptive trade practices (Count I) under the same rubric as the Lanham Act claims. With regard to Defendants' Count IV, the claim adds nothing new to the inquiry and “a Georgia unfair competition claim is co-extensive with the analysis of a Lanham Act claim.” Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1248 n.11 (11th Cir. 2007). As for Defendants' Count I, the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372(a), is analogous to § 42(a) of the Lanham Act. Id. at 1247. Thus, Defendants' Counts II and III under the Lanham Act and Counts I and IV under Georgia law (Misrepresentation Claims, collectively) shall survive or fail together at summary judgment.

*16 To succeed on a claim for false advertising, the claimant must show that:

Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). With regard to the first element, the claim must show “that the statements at issue were either (1) commercial claims that are literally false as a factual matter or (2) claims that may be literally true or ambiguous but which implicitly convey a false impression, are misleading in context, or likely to deceive consumers.” Id. at 1261 (internal quotation marks omitted).

In their Counterclaim, Defendants allege that DS Waters, under the trade name Crystal Springs, began falsely telling Cohutta's former customers that it had purchased Cohutta equipment and that they were required to do business with Crystal Springs [Doc. No. 9, 17–18]. The Counterclaim also alleges that DS Waters began charging customers rent on equipment it did not own, took possession of equipment if a former Cohutta customer did decide to do business with DS Waters, demanded the return of equipment from customers who chose not to do business with DS Waters, and implied in a letter sent by Mike Williams, its Vice President, (Williams Letter) that Crystal Springs owned all of the Cohutta business [Id. at 19–24].

DS Waters seeks summary judgment on the Misrepresentation Claims to the extent those claims are based on the contention that DS Waters's made misrepresentations in the Williams Letter and told customers that they were required to do business with DS Waters. DS Waters does not seek summary judgment on the Misrepresentation Claims to the extent the claims are based on the allegation that DS Waters falsely claimed an ownership interest in former Cohutta equipment. Defendants have filed a cross-motion for summary judgment on their Counterclaim. They seek summary judgment on DS Waters's liability with regard to the Misrepresentation Claims but request that the issue of damages be reserved for trial.

DS Waters is entitled to summary judgment on the Misrepresentation Claims to the extent the claims allege liability based on the Williams Letter. While the Williams Letter contained misrepresentations, Defendants have failed to show that there are facts tending to establish that they were damages as a result of the misrepresentations. The Williams Letter, addressed to Cohutta's former customers, stated that DS Waters had “purchased the Cohutta Water Home and Office bottled water delivery business,” that DS Waters was “looking forward to providing the same great service to all of our new Cohutta customers,” and that “[b]y joining the Crystal Springs family” the customer would be “able to take advantage of several new benefits” [Doc. No. 9, 43]. The Letter also extended a special offer “[t]o welcome” the customer to the DS Waters “family” [Id.].

*17 As an initial matter, the Court notes Stillwater sold to DS Waters the following “[i]ntangible assets” of Cohutta: (1) “[c]opies of historical records for all customers purchased” and (2) “the Sellers rights and claims ... to (a) its customer contracts and equipment leases for coolers, brewers and related equipment, (b) all customers of the Business, together with the goodwill ..., and (d) all trademarks and trade names ..., domain names, URLs and telephone numbers used in connection with the Business” [Doc. No. 114, Ex. C]. However, Cohutta equipment located at the Cohutta facility and held by its former customers was acquired by NGNB based on a superior security interest. That equipment was bought from NGNB by Defendants together with a third-party [Doc. No. 325-8, 3]. Thus, Defendants argue, DS Waters's statement that it purchased the Cohutta Water Home and Office bottled water delivery business was literally false. While it appears that DS Waters did not purchase all of Cohutta's equipment, it did purchase various crucial assets of the business, including all customers of the business, the goodwill of the business, and its trademarks and trade names. Thus, DS Waters's statement was not literally false. The statement, however, was likely to mislead customers in the context it was presented. The Williams Letter welcomed Cohutta's former customers to the Crystal Springs family and noted that the Cohutta bottled water delivery business was purchased by Crystal Springs. Although the Letter did not state overtly that DS Waters had also purchased Cohutta equipment, the statement that DS Waters had purchased the Cohutta business was likely to mislead customers into concluding that it had also purchased Cohutta equipment which was held by the customers. Additionally, the Letter was also likely to confuse customers as to their standing with DS Waters; that is, whether DS Waters had taken over their accounts with Cohutta and whether that entailed an obligation to continue service with DS Waters.

Five customers, or their representatives, were deposed regarding their interactions with DS Waters. Of the five deponents, only four remembered receiving the Letter.[22] First, Mr. Brad Hobbs, an employee of Gerdeau Ameristeel, testified that he received the Williams Letter and was confused by it as he read it as saying “essentially ... that [DS Waters] had purchased Cohutta” [Doc. No. 207, 40:2–8]. Having received the letter, Mr. Hobbs was confused as to whether DS Waters “had actually purchased the equipment” [Id. at 40:5–20; 44:12–21; 46:4–11]. Second, Ms. Heather Robinson, an employee of Grasshopper Southeast, testified that upon receiving the Williams Letter, she became confused about “who we were supposed to be doing business with” and whether her company should have “rightfully signed a contract with Crystal Springs if they ... purchased the Cohutta Water Bottling System and ... their equipment” [Doc. No. 206, 58:12–59:7]. Ms. Robinson read the letter to mean that DS Waters had purchased “everything” belonging to Cohutta [Id. at 59:4–18]. Third, although Ms. Martha Messer stated in a declaration that the Williams Letter confused her, she could not pinpoint during her deposition testimony why the Williams Letter had confused her [Doc. No. 205, 37:23–38:13]. But she did testify that she the read the letter to mean that Crystal Springs had purchased all of Cohutta's property, including coolers and bottles [Id. at 53:19–55:9]. Accordingly, there is sufficient evidence from which a jury could conclude that the Letter contained misrepresentations which were likely to cause customer confusion.[23] Homes & Land Affiliates, LLC v. Homes & Loans Magazine, LLC, 598 F. Supp. 2d 1248, 1264 (M.D. Fla. 2009) (noting, in the trademark infringement context, that “[p]roof of actual confusion is not necessary to prove likelihood of confusion, but it is the most persuasive evidence in assessing the likelihood of confusion”) (internal citations and quotation marks omitted).

Proof of harm is a necessary element of a false advertising claim. Defendants have failed to establish that there is a genuine issue of material fact tending to show that they suffered, or were likely to suffer, harm as a result of the misrepresentation in the Williams Letter. Defendants have not shown that customers, other than the ones discussed above, were confused by the Letter. But even assuming that other customers were also confused upon receiving the Williams Letter, Defendants have failed to show that any customer confused by the Letter discontinued business with Defendants or elected to do business with DS Waters rather than Defendants as a result. For instance, Mr. Hobbs testified that his company elected to do business with DS Waters because he solicited bids from four bottled water delivery companies, including Fontis and DS Waters, and DS Waters's bid met the criteria important to his company in that it was a company large enough to handle the account, it was given a great reference by a colleague, and it was going to charge less for the delivery service than the other bidders [Doc. No. 207, 32:1–34:18]. There is no indication that the Letter played a role in Gerdeau Ameristeel's decision to do business with DS Waters. Similarly, Mr. Ray testified that the main reason his employer elected to switch service from Smoky Mountain to DS Waters was because “the water did taste funny”; according to Mr. Ray, “It had nothing to do with who owned what” [Doc. No. 40, 18–24]. Additionally, as noted before, Mr. Ray could not remember if he had received the Williams Letter. Thus, there is no indication that any misrepresentation by DS Waters affected Legends Hair & Skin Studio's decision to switch to DS Waters. Grasshopper Southeast, Hays Pipe Supply Co., and Martha Messer chose not to do business with DS Waters or elected to switch. Grasshopper Southeast is a Fontis customer [Doc. No. 206, 29:5–24], Hays Pipe Supply Co., switched from DS Waters to Fontis [Doc. No. 204, 22:12–23; 27:13–19],[24] and Martha Messer remained a Smoky Mountain customer [Doc. No. 205, 23:14–23]. Moreover, although Defendants' damages expert, Ms. Kathleen Ransome, evaluated the accounts lost by Defendants as potentially attributable to DS Waters and opined generally that misleading customers about the ownership of Cohutta coolers would have influenced customers to do business with DS Waters, Ms. Ransome did not attribute loss of customers to the Williams Letter with any particularity [Doc. No. 193-10, 6–9]. As there is no dispute of material fact as to a necessary element of Defendants' false Misrepresentation Claims, DS Waters is entitled to summary judgment on Defendants' Counts I through IV, to the extent the Counts are based on the Williams Letter.

*18 Neither DS Waters nor Defendants are entitled to summary judgment on Defendants' Misrepresentation Claims to the extent the Claims are based on DS Waters's oral misrepresentations to customers. DS Waters contends that it is entitled to summary judgment on the Misrepresentation Claims to the extent they are based on allegations that it made representations to customers that they were required to do business with DS Waters. Defendants contend that they should be granted summary judgment on the same issue. Defendants further argue that they should also be granted summary judgment on the Misrepresentation Claims based on DS Waters representations to customers that it owned Cohutta equipment.

Defendants contend that as part of their customer solicitation strategy, Cohutta Team members told customers that DS Waters had purchased Cohutta and represented to customers that if they choose not to do business with DS Waters their Cohutta equipment would have to be surrendered to DS Waters.[25] The Cohutta Team was given two versions of a script (the Call Script) with facts they could use to convey information to Cohutta's former customers they were seeking to solicit for DS Waters. One Call Script stated that DS Waters had purchased the customer assets of Cohutta and the other stated that it had purchased the Cohutta Waters Home and Office bottled water delivery business [Doc. No. 193-3, 1, 3]. Along with the Call Scripts, the Cohutta Team was given a document outlining additional information; that document noted that the Cohutta customers “should still have all bottles and equipment delivered by Cohutta, which we have purchased” and that “[i]f the customer does not want to have service with us we should make arrangements to pick up bottles and the cooler” [Id. at 2, 4].

A dispute of fact exists as to the information that was imparted to customers. While the Call Script was provided to the Cohutta Team, they were not required to read from it verbatim and, rather, used it as a guideline [Doc. No. 318, 42:12–23; Doc. No. 75:11–10; 54:3–55:7]. According to the Cohutta Team Supervisor, the Team was told to welcome customers to DS Waters, provide them with a promotional offer, and “let them know that we would be welcome to start servicing them and see if they would be interested in it” [Doc. No. 41:23–42:4]. The Cohutta Team was not told that Cohutta's former customers had an obligation to continue doing business with DS Waters [Doc. No. 317, 265–8]. According to a member of the Cohutta Team, however, the information that was passed on to the Cohutta's former customers was that DS Waters had purchased Cohutta's business [Id. at 102:3–8]. Thus, there remains a material dispute concerning the information that was passed along by the Cohutta Team.

Moreover, while it is not apparent that DS Waters made an overt representation, the question remains whether it implied that customers were required to continue business with DS Waters.[26] Defendants argue that DS Waters communications confused customers into thinking that they were required to do business with DS Waters because DS Waters had taken over Cohutta. In support of that argument, Defendants allege that DS Waters represented to customers that it had acquired Cohutta's assets and that their Cohutta equipment would have to be surrendered if they did elect to do business with DS Waters. Additionally, DS Waters started charging rent on the Cohutta equipment held by customers. There exists a dispute of fact as to whether DS Waters made oral representations that it acquired Cohutta's assets or that they were required to surrender Cohutta equipment if they elected not to do business with DS Waters. The Cohutta Team Supervisor testified that she “would have [told the Team] that we've acquired a customer base” [Doc. No. 318, 34:19–22] and a Team member testified that she told customers that DS Waters “purchased the customer base” [Doc. No. 311, 49:13–16]. Although the document supplied with the Call Script indicated that DS Waters had purchased Cohutta bottles and coolers, the Team members were not told so by their supervisor [Doc. No. 317, 104:1–5]. According to one of the Cohutta Team members, she did not pass along to customers the information in the document provided along with the Call Script [Id. at 149:18–21] and she did not tell any of Cohutta's former customers that they owed DS Waters rent on any of their equipment [Id. at 71, 6–18]. Further, the Cohutta Team member stated that rental charges would only apply if a customer agreed to start service with DS Waters and only after the Cohutta equipment was exchanged for DS Waters's [Id. at 71, 6–18]. In contrast, DS Waters's Call Log entries appear to indicate that customers were told that DS Waters would have to pick up their equipment if they decided to select another delivery company [Doc. No. 193-4]. For example, the Call Log appears to indicate that a Cohutta Team member told a customer who had decided to do business with Fontis that the cooler would have to be picked up [Id., Cust. No. 4342043].[27] Another entry indicates that a Cohutta Team member told a customer who had elected Fontis that “Fontis had no rights to the customers of Cohutta” and that DS Waters would have to pick up the Cohutta cooler [Id., Cust. No. 4342102]. There are several entries in the Call Log indicating that customers were told that DS Waters would have to pick up the Cohutta equipment if they were being serviced by another delivery company or that DS Waters had purchased Cohutta's assets [See e.g. Doc. No. 193-4, Cust. Nos. 4342681, 4344162, 4339755, 4342788, and 4343967].[28] In view of these and other similar Call Log entries, Defendants argue that the deposition testimony of DS Waters employees fails to create a genuine issue of fact. The Court disagrees. At summary judgment, the Court is not called to make a determination on whether “some evidence is more compelling that other evidence.” Strickland v. Norfolk Southern Railway Co., ___ F.3d ____, 2012 WL 3640999, at *7 (11th Cir. Aug. 27, 2012). “While some testimony may be subject to credibility determinations, such credibility determinations are for the fact finder ....” Id.

*19 A dispute of fact also exists as to whether DS Waters's oral representations caused Defendants harm. Defendants contend that customers became confused by DS Waters's statement that they would have to surrender their Cohutta equipment if they choose another bottled water delivery company or that it had purchased Cohutta's assets. As examples, Defendants point to entries on DS Waters's Call Log which indicate that upon being told that DS Waters would pick up their coolers some customers who had elected either Fontis or Smoky Mountain changed their minds and decided to do business with DS Waters [See e.g. Doc. No. 193-4, Cust. No. 4342416, 4342043, 4344162, 4342788]. The Call Log entries indicate that customers decided to reconsider their decision to do business with Fontis or Smoky Mountain. But a question remains as to whether those customers in fact discontinued business with either Fontis or Smoky Mountain.

Defendants also contend that DS Waters charged rent on Cohutta equipment it did not own. Allegedly, this practice resulted in customer confusion. Defendants do no explain how this practice serves as a basis for a Lanham Act claim. Even assuming that the charging of rent by DS Waters on equipment it had not purchased is considered unfair competition under § 1125(a)(1)(A),[29] Defendants fail to present evidence indicating that customers who were confused by DS Waters charging them rent had decided to do business with DS Waters, at the Defendants' expense, because it was charging them rent on Cohutta equipment. Thus, to the extent Defendants' Misrepresentation Claims are based on the allegation that DS Waters's charging of rent on Cohutta equipment confused customers, Defendants are not entitled to summary judgment on the Claims.[30]

In seeking summary judgment as to liability on the Misrepresentations Claims, Defendants allege that DS Waters issued a false press release,[31] placed deceptive and misleading content on its website, and sent a cease and desist letter containing false statements to Defendants rather than customers. There is no indication that any statement in the cease and desist letter caused customer confusion as the cease and desist letter was sent to Defendants, presumably through their council. Defendants provide no evidence to show that any customer had access to the cease and desist letter. Accordingly, the Court will not engage in an analysis of the statements made in that letter. With regard to DS Waters's press release, Defendants note that the press release stated that DS Waters “acquired” Cohutta [Doc. No. 194-1, 11]. They argue that the statement is deceptively overbroad as DS Waters did not buy, among other things, the Cohutta business from bankruptcy, Cohutta stock, and all of Cohutta's personalty. Moreover, Defendants argue that DS Waters's statement on its website that “Cohutta® Water is now Crystal Springs®!” [Doc. No. 193-5] is false. Even assuming that the above statements are false, Defendants have failed to present evidence to indicate that the statements had a material effect on the customers' decision to do business with DS Waters or that Defendants were harmed by any customer confusion resulting from the statements. Defendants merely contend that some customers read the press release.[32] While Defendants generally state that they were harmed by DS Waters's misrepresentations and falsehoods as confused customers choose to do business with DS Waters rather then Defendants, they fail to pin point specific evidence indicating that the customers choose DS Waters over either Smoky Mountain or Fontis due to the statements in the press release and/or the DS Waters website. As such, Defendants are not entitled to summary judgment on the Misrepresentation Claims to the extent the Claims are based on the allegation that DS Waters's press release, statements on its website, and cease and desist letter caused customer confusion.[33]

*20 Both sides seek summary judgment on Defendants' claim against DS Waters for conversion of Cohutta equipment purchased by Defendants. Defendants allege that DS Waters removed or charged rent on Cohutta equipment which was held on the premises of Cohutta's former customers and which Defendants had bought.

Georgia law defines conversion as “an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” Williams v. Natl. Auto Sales, Inc., 287 Ga. App. 283, 285, 651 S.E.2d 194, 196 (2007) (quoting Corbin v. Regions Bank, 258 Ga. App. 490, 495, 574 S.E.2d 616, 621 (2002)). A claim for conversion lies where a party wrongfully exercises “any distinct act of dominion and control ... over another's personal property, in denial of his right or inconsistent with his right.” Id. (quoting Taylor v. Powertel, Inc., 250 Ga. App. 356, 358, 551 S.E.2d 765, 769 (2001)). Conversion may be proved by showing that a party who lawfully came into possession of the property, i.e., where the party found it and retained it for the true owner or where possession was obtained with the permission or consent of the owner, unlawfully refused to return the property upon demand. Williams, 287 Ga. App. at 285, 651 S.E.2d at 198–97. But “[w]here ... an actual conversion is shown, no demand is necessary.” Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 700, 140 S.E.2d 83, 86 (1964). Thus, “[d]emand and refusal is necessary only when the defendant comes into possession of the property lawfully.” Id.

DS Waters did not come into lawful possession of the Cohutta equipment purchased by Defendants. DS Waters argues that its possession was lawful as it had purchased Cohutta's equipment from Stillwater. According to the Bill of Sale, DS Waters purchased “[a]ll electric and non-electric water dispensers used in connection with the Business, together with all bottles and racks to the extent these items are, in fact, owned by [Stillwater]” [Doc. No. 114, Ex. C]. DS Waters argues that it was under the impression that it had purchased that equipment at issue. It is immaterial that DS Waters may have thought that it owned the equipment as “it makes no difference” as to liability for conversion that the exercise of dominion was in good faith. Lovinger, 110 Ga. App. at 699, 140 S.E.2d at 85. In actuality, it appears that NGNB owned the Cohutta water coolers and other equipment and assets “that were previously owned by Cohutta ... at the facility formerly operated by Cohutta ... or any business or residence of any former Cohutta customer” (the equipment at issue) [Doc. No. 325-8, 3]. DS Waters does not provide any record citation raising doubts to the contrary.[34] There is nothing to suggest that DS Waters “found” the equipment at issue and retained it for its true owner or that it obtained that equipment with NGNB's permission; and Defendants did not give DS Waters permission to remove coolers.

*21 On January 4, 2010, NGNB sold all of its “rights and powers” in the equipment at issue, with exceptions not applicable here, to Defendants [see Doc. No. 256-1, Defs.' Resp. to Pl.'s Statement of Undisputed Material Fact (“PSUMF”) ¶ 4]. But DS Waters argues that Defendants only acquired those pieces of equipment “that were formerly owned by Cohutta and located at the residence or business of former Cohutta customers as of January 4, 2010” [Doc. No. 265, 13 (emphasis in original) ]. Therefore, DS Waters contends, Defendants did not acquire rights in any equipment that DS Waters removed from the businesses or residences of Cohutta's former customers prior to January 4, 2010. DS Waters puts forward a narrow reading of the Bill of Sale for the equipment at issue, which is not supported by the terms of the Bill of Sale.[35] While the sale took place on January 4, 2010, the Bill of Sale does not limit the property conveyed to only that which remained on the premises of Cohutta's former customers as of January 4, 2010. It contemplates the transfer of all rights that NGNB had in certain Cohutta equipment, identified by the location where it could be found. To the extent DS Waters removed the equipment at issue from customers' premises or charged rent on that equipment, either before or after January 4, 2010, it exercised dominion over the equipment that was inconsistent with Defendants' right to the equipment. See Levenson v. Word, 286 Ga. 114, 116, 686 S.E.2d 236, 238 (2009). Thus, Defendants are not required to show that they made a specific demand and that DS Waters refused to comply with the demand. The record indicates that DS Waters picked up Cohutta equipment from customers' premises [See Doc. No. 256-1, Defs.' Resp. to PSUMF ¶ 15; Doc. No. 204, 28:19–29:8]. It is undisputed that DS Waters retained possession of ninety-nine of Defendants' coolers until after suit was filed [Doc. No. 188-15] and that some of the coolers at issue were destroyed rather than returned [Doc. No. 188-1, 20]. This establishes DS Waters's liability for conversion.

Disputes of facts abound over the issue of Defendants' damages. The number of coolers DS Waters picked up is subject to dispute. Some coolers at issue that DS Waters picked up were discarded and some were “put back into circulation” [Doc. No. 188-1, 20]. Ninety-nine coolers have been returned thus far. Whether this number represents all of the Cohutta coolers picked up by DS Waters is a question that remains. As for coolers that remained with Cohutta's former customers, it is alleged that DS Waters charged the customers rent on those coolers [Doc. No. 178, 124:7–126:12]. It is disputed how long the practice of charging rent to customers continued and how many customers were charged rent. More relevant to Defendants' claim, it is also disputed whether DS Waters continued to charge customers rent after Defendants purchased the equipment at issue. Likewise, whether DS Waters remains in possession of any of the equipment at issue and whether it has retained proceeds from any of the equipment which was disposed is also subject to dispute. Defendants contend that their analysis of DS Waters's Cohutta customer equipment list shows that DS Waters took possession of least 185 Cohutta coolers—these coolers have not been accounted for or returned to Defendants.[36] DS Waters, however, states emphatically that it has confirmed that no other Cohutta coolers remain in its possession. Overall, Defendants are entitled to summary judgment as to liability on their claim for conversion (Count V).

Defendants seek summary judgment as to DS Waters's liability on their claims for interference with contractual and prospective business relations (Counterclaim Count VI). While DS Waters has not moved for summary judgment on that claim, in its opposition to Defendants' motion, it argues that it is entitled to summary judgment on the claim. Defendants allege that DS Waters interfered with relations between customers and Defendants by claiming to own Cohutta equipment it did not own, by taking possession of Cohutta equipment when customers elected to do business with Defendants, and by charging rent on the equipment.

To succeed on claims of interference, whether with contractual relations or potential business relations, the plaintiff must establish:

*22 Kirkland v. Tamplin, 285 Ga. App. 241, 243, 645 S.E.2d 653, 655–56 (2007) (quoting Disaster Servs. v. ERC Partnership, 228 GA. App. 739, 740, 492 S.E.2d 526, 528 (1997)). Assuming that Defendants had valid contracts with customers who were charged rent on equipment by DS Waters,[37] Defendants present no evidence that the rental charges caused customers to breach those contractual obligations or caused them to discontinue business with Defendants. Also, Defendants have failed to establish that the undisputed facts show that DS Waters's claim of owning equipment it did not own and its taking possession of equipment of customers who elected to do business with Defendants interfered with contractual relations between Defendants and customers. Defendants present no evidence to indicate that DS Waters's representation that it owned the equipment on the customers' premises caused those customers to breach their contracts with Defendants, and there is a dispute as to whether that representation caused customers to discontinue business with Defendants.[38] Defendants' allegation that DS Waters took possession of equipment from customers who elected to do business with Defendants cannot support their claim for interference—those customers continued to do business with Defendants despite DS Waters's alleged actions. Thus, Defendants are not entitled to summary judgment on their interference with contractual relations claim.

Likewise, Defendants are also not entitled to summary judgment on their interference with prospective business relations. Defendants have failed to show that it is beyond factual dispute that customers would have likely entered into a business relationship with Defendants had DS Waters's not charged them rental on equipment or represented to them that it owned the equipment the customers held.

DS Waters is also not entitled to summary judgment on the interference claims. DS Waters argues that its actions were privileged because it was not a “stranger to the business relationships with the customers it purchased” [Doc. No. 252, 23]. While DS Waters purchased Cohutta's “customer contracts and equipment leases for coolers, brewers and related equipment” [Doc. No. 114, Ex. C] from Stillwater, indications are that DS Waters did not acquire all the rights to all the equipment in this category as the equipment was subject to NGNB's superior security interest. Thus, it is unclear whether the customer contracts and leases acquired by DS Waters encompassed the (unidentified) contracts at issue. Accordingly, it is not entitled to summary judgment on Defendants claim of interference (Count VI).

To summarize, DS Waters' motion for partial summary judgment is GRANTED on Defendants' Counts I through IV to the extent the Counts are based on the Williams Letter. DS Waters's and Defendants' motions for partial summary judgment are DENIED on Defendants' Counts I through IV to the extent the Counts are based on DS Waters's oral misrepresentations to customers. Defendants' motion for partial summary judgment is DENIED to the extent Defendants' Counts I through IV are based on the allegation that DS Waters's charging of rent on Cohutta equipment confused customers. Defendants' motion for partial summary judgment on Counts I through IV is DENIED to the extent the Counts are based on the allegation that DS Waters's press release, statements on its website, and cease and desist letter caused customer confusion. DS Waters's motion for summary judgment on Defendants' conversion claim (Count V) is DENIED and Defendants' motions for summary judgment as to that Count is GRANTED. Lastly, neither DS Waters nor Defendants are entitled to summary judgment on Defendants' interference with contractual and prospective business relations claims (Count VI). Overall, Defendants' motion for partial summary judgment on its Counterclaim is DENIED IN PART and GRANTED IN PART and DS Waters's cross-motion for partial summary judgment is GRANTED IN PART and DENIED IN PART.

*23 DS Waters alleges that Fontis as well as Smoky Mountain engaged in false advertising and unfair competition in violation of section 43(a) of the Lanham Act. Counts I and II of the complaint address Fontis's conduct while Counts III and IV address Smoky Mountain's conduct. Specifically, Count I alleges that on November 6, 2009, Fontis sent a letter (November 6 Letter) to Cohutta's former customers which misrepresented the nature of contractual relationships the customers had with DS Waters, causing customer confusion. Allegedly, Fontis also made oral misrepresentations to customers and posted misleading blog entries regarding the affiliation of Fontis with Cohutta, thereby causing additional customer confusion. In Count II, DS Waters alleges that Fontis is liable for false advertising as it misrepresented the nature of the contractual relationships of Cohutta's former customers and misrepresented the nature, characteristic, qualities, or geographic origin of its own goods, services, and commercial abilities. Count III of the complaint alleges that Smoky Mountain sent misleading letters to customers, including Cohutta's former customers. According to DS Waters, on September 22, 2009, Smoky Mountain sent a letter to Cohutta's former customers (September 22 Letter) suggesting falsely that Smoky Mountain would be continuing Cohutta's business and, in November 2009, Smoky Mountain sent a letter (Dear Neighbor Letter) with a false description of DS Waters. Lastly, Count IV alleges that Smoky Mountain falsely advertised itself, particularly, by holding itself out as a locally owned business to customers in the region of Calhoun, Georgia.

Both Fontis and Smoky Mountain filed motions for summary judgment. Smoky Mountain seeks summary judgment as to Counts III and IV. Smoky Mountain argues that DS Waters lacks standing to sue under the Lanham Act as, chiefly, any causal link between its alleged misrepresentations and DS Water's injury is tenuous and none of its communications to customers were false or likely to mislead. Furthermore, Smoky Mountain argues that DS Waters's claims should be dismissed as the doctrine of unclean hands bars DS Waters from recovering monetary damages under 15 U.S.C. § 1117(a).

DS Waters has prudential standing to assert the Lanham Act claims. Initially, in its motion for summary judgment, Smoky Mountain argues that DS Waters lacks prudential standing because any causal link between Smoky Mountain's alleged misrepresentations and DS Waters's injury is “tenuous at best,” DS Waters's damages are speculative, and there is a possibility of DS Waters obtaining duplicative damages.[39] Subsequently, in its reply, Smoky Mountain argues that DS Waters is attempting to assert interests other than its own and is asking the Court to decide abstract questions.[40]

“Under certain circumstances, prudential, as opposed to constitutional, standing considerations limit a plaintiff's ability to bring suit.” Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 225 (3d Cir. 1998). The requirements governing prudential standing are “judge-made rules” and are aimed at determining “whether the plaintiff is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.” Id. (internal quotation marks omitted). Courts in the Eleventh Circuit weigh the following factors in determining questions of prudential standing in Lanham Act claims:

Phoenix of Broward, Inc. v. McDonald's Corp., 489 F.3d 1156, 1163–64 (11th Cir. 2007). Here, it is alleged that DS Waters's commercial interests have been allegedly harmed by Smoky Mountain's misrepresentations. The “focus of the Lanham Act is on anticompetitive conduct in a commercial context.” Phoenix, 489 F.3d at 1163. Thus, DS Waters's alleged injury is of a type sought to be redressed under the Lanham Act. It is likely that DS Waters's injury can be traced to Smoky Mountain's alleged misrepresentations. DS Waters indicates that Smoky Mountain reached out to Cohutta's former customers and made misrepresentations regarding its association with Cohutta. DS Waters alleges that the resulting confusion caused customers to choose Smoky Mountain over DS Waters—who was also competing for those customers. As a result, DS Waters contends, it succeeded in acquiring only a small number of Cohutta's former customers. Furthermore, the damages are not speculative as Smoky Mountain's statements were targeted to a distinct group, Cohutta's former customers, and as it can be determined whether a new customer acquired by Smoky Mountain during the relevant period was a former customer of Cohutta. Lastly, the risk of duplicative damages is not high as Fontis and Smoky Mountain allegedly divided up Cohutta's territory to avoid competition and DS Waters seeks damages from each defendant only to the extent it acquired Cohutta's former customers.

*24 As for Smoky Mountain's contention that DS Waters is attempting to assert a third-party's legal interest and that its claim involves abstract questions, the Court is unpersuaded. Generally, it is required “(1) that a litigant “assert his [or her] own legal interests rather than those of third parties,” [and] (2) that courts “refrain from adjudicating abstract questions of wide public significance which amount to generalized grievances.” Conte Bros., 165 F.3d at 226. Smoky Mountain contends that DS Waters is asserting rights of a third-party in its Lanham Act claim because DS Waters “did not own the Cohutta customer list at the time [it] alleges that Defendants stole and first used the lists. Said list was an asset of the bankruptcy court” [Doc. No. 266, 3]. First, although the customer list may have been an asset of the Bankruptcy Court, Stillwater allegedly had a security interest in that asset and it sold that asset to DS Waters; DS Waters alleges harm resulting from the use of the lists. Second, even if DS Waters could not claim an interest in the Cohutta customer list while it was an asset of the Bankruptcy Court, Smoky Mountain's point still misses the mark. DS Waters does allege that Smoky Mountain contacted Cohutta's former customers using Cohutta's confidential customer list but the use of the list is not the basis for its Lanham Act claims; those claims are grounded in Smoky Mountain's alleged misrepresentations to Cohutta's former customers. The Court also disagrees with Smoky Mountain's contention that DS Waters's Lanham Act claims raise abstract questions of wide public significance because the Court is asked to determine whether Smoky Mountain is a “locally-oriented” business and whether DS Waters is a national company owned by a “Wall-Street investment bank.” Those questions are pertinent to the resolution of DS Waters's allegations of false advertising and do not amount to generalized grievances. Accordingly, DS Waters has prudential standing to assert its Lanham Act claims.

Smoky Mountain contends that DS Waters's Lanham Act claims should be dismissed as its unclean hands is a bar to the recovery of damages under 15 U.S.C. § 1117(a). According to Smoky Mountain, DS Waters represented to customers that it had purchased Cohutta although it did not own the Cohutta trademark.[41] “Application of the equitable doctrine of unclean hands lies within the sound discretion of the district court.” Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F.2d 1352, 1355 (11th Cir. 1983). The defense of unclear hands applies to a Lanham Act claim and is established by a showing that “the plaintiff's conduct is inequitable and that the conduct relates to the subject matter of its claim.” Campagnolo S.R.L. v. Full Speed Ahead, Inc., 258 F.R.D. 663, 665–66 (W.D. Wash. 2009). Additionally, the defendant must show that it was personally injured by the conduct at issue. Inmuno Vital, Inc. v. Golden Sun, Inc., 49 F. Supp. 2d 1344, 1358 (S.D. Fla. 1997). The courts also consider the culpability of the conduct. Shatel Corp., 49 F. Supp. 2d 1344 (concluding that defense of unclean hands did not apply where mistake was inadvertent); Ford Motor Co. v. O.E. Wheel Distribs, LLC, ___ F. Supp. 2d ____, (M.D. Fla. 2012) (“[I]n trademark infringement actions, courts have required clear, convincing evidence of egregious misconduct before invoking the doctrine of unclean hands.”) (internal quotation marks omitted); Pedinol Pharmacal, Inc. v. Rising Pharm., Inc., 570 F. Supp. 2d 498, 505 (E.D.N.Y. 2008) (requiring “truly unconscionable and brazen behavior”) (internal quotation marks omitted). Here, DS Waters's alleged conduct does not rise to a level requiring the dismissal of its claims. To the extent DS Waters used the Cohutta trademark in reaching out to Cohutta's former customers, its actions were not egregious much less brazen or unconscionable. Under the terms of its acquisition of Cohutta's assets from Stillwater, it appeared that DS Waters had indeed purchased the Cohutta trademark. Considering the circumstances, the Court cannot conclude that DS Waters's actions rose to a level that requires that it be barred from recovering damages under its Lanham Act claims.

The elements of the Lanham Act false advertising and unfair competition claims are recited above in the summary judgment analysis of Defendants' counterclaims[42] and they apply equally to DS Waters's claims. DS Waters has failed to show that Smoky Mountain's letters contained materially false statements or statements that were likely to mislead customers. However, DS Waters has sufficiently shown that there is evidence from which a jury could reasonably determine that Smoky Mountain made oral misrepresentations which caused customer confusion.

*25 DS Waters has failed to show that the statements at issue in the September 22 Letter were materially false or misleading. The September 22 Letter stated: “On September the 11th the bankruptcy court ordered Cohutta Water to cease operation” [Doc. No. 114, Ex. N]. Rather than ordering Cohutta to cease operations, the Bankruptcy Judge instructed Steve Carroll not to spend any more funds on Cohutta's operation [Doc. No. 255-1, 49:3–50:21]. Thus, while Smoky Mountain's statement that the Bankruptcy Court had ordered Cohutta to cease operations was false, it was not materially. The net outcome of the Bankruptcy Court directive was that “[o]n that particular day, the company could not operate without funds, so [Steve Carroll] had no choice but to stop all things with the business” [Id. at 50:1–50:3]. Even if the statement was materially false, DS Waters has failed to show that it swayed customers in Smoky Mountain's direction at the expense of DS Waters. DS Waters does point to the statement of a customer who decided to start service with Smoky Mountain because the “letter,” presumably the September 22 Letter, said that Smoky Mountain had purchased Cohutta [Doc. no. 250, 4]. However, the September 22 Letter does not expressly say so nor does it imply it. In addition to stating that Cohutta had ceased operations, the Letter notes that Smoky Mountain had hired Mike Ezell, a Cohutta driver, “to continu[e] servicing his customers” and that the Cohutta customers had “the opportunity to continue [their] service uninterrupted” with Smoky Mountain [Doc. No. 114, Ex. N]. That language is not false, and, when read in context, the statement that Cohutta customers could enjoy uninterrupted service does not imply that Smoky Mountain had taken over Cohutta—it is a reference to the benefit Cohutta customers could gain by choosing Smoky Mountain as it had hired one of the Cohutta drivers.

Similarly, the statements at issue in the Dear Neighbor Letter are neither materially false nor misleading. That letter states that Smoky Mountain “is a small, locally-oriented business established in your area much like Cohutta” and describes DS Waters as “a national corporation owned by a Wall Street Investment bank” [Doc. No. 114, Ex. O]. It is uncontested that Smoky Mountain is a small business with a limited range in which operates. But DS Waters argues that the Dear Neighbor Letter falsely describes Smoky Mountain as a “local[,] family-owned business” [Doc. No. 250, 9] to customers in the Calhoun, Georgia area when it is based in Athens, Tennessee, approximately ninety-three miles away from Calhoun. The statement “small, locally-oriented business” is used early in the context of describing Smoky Mountain and the statement “local, family-owned business” appears later in the Letter in the following context: “We are working hard to continue the excellent customer service and high product standards that you have to come to expect and rightfully deserve from a local, family-owned business” [Doc. No. 114, Ex. O]. The former statement appears to accurately describe Smoky Mountain. DS Waters takes issue with Smoky Mountains's use of the word “local” in the latter statement. It is uncontested that Smoky Mountain is headquartered in Tennessee and not in Calhoun, Georgia. DS Waters argues that no reasonable interpretation can stretch the term “local” to include an area almost one-hundred miles away. The Court disagrees. The term can be aptly used to describe a business serving a particular region as opposed to a national or far-flung enterprise. See Merriam-Webster's Collegiate Dictionary 730 (11th ed. 2003); Oxford English Dictionary 1077–78 (2nd ed. Vol. III 1989). As such, the use of the word “local” does not render the statement false or misleading. DS Waters also points out that Smoky Mountain compares itself to Cohutta, but it fails to indicate why such a comparison is inaccurate. The Dear Neighbor Letter also states that DS Waters purchased certain Cohutta assets and further notes that Smoky Mountain has never claimed to have purchased any of Cohutta's assets “or attempted to advantage of [Cohutta's bankruptcy] in any way” [Doc. No. 114, Ex. O]. DS Waters argues that those statements imply that DS Waters “took advantage” of Cohutta's bankruptcy. Any such implication is attenuated at best and is unsupported by a reasonable reading of the Letter. And even if the statements can be reasonably read as raising that implication, DS Waters has failed to show that any such implication caused customers to turn away from DS Waters and choose Smoky Mountain instead. Finally, DS Waters contends that the Dear Neighbor Letter falsely states that DS Waters is a Wall Street investment bank-owned corporation. In actuality, Kelso & Company, a New York based private equity fund owned 70 percent of the holding company which owned DS Waters [Doc. No. 314, 12:16–13:9, 14:1–15:20]. Thus, Smoky Mountain's statement regarding DS Waters's ownership was false. The falsehood, however, was immaterial. Not only is there no indication that customers gravitated toward Smoky Mountain based on that representation, but, even if the statement did affect customer choice, there is no indication that the customer decision would have been different had Smoky Mountain correctly represented DS Waters as a company owned, in large part, by a New York-based equity fund. Thus, the Court concludes that the letters cannot serve as a basis for DS Waters's Lanham Act claims.

*26 With regard to Fontis, DS Waters has failed to show that Fontis's written communications, with the exception of one statement, contained materially false or misleading statements which affected customer choice. Fontis's November 6 Letter stated that “the bankruptcy courts shut down” Cohutta. As noted above, while the Bankruptcy Court did not shut down Cohutta, the practical effect of its directive was that Cohutta could no longer operate. Thus, the statement is not materially false. The Letter additionally stated that customers “were under no obligation to [DS Waters] as [their] 30 day service agreement[s] with Cohutta Water expired weeks before [DS Waters] purchased Cohutta assets” [Doc. No. 114, Ex. H]. According to Fontis, this statement is true as Cohutta customers had thirty-day contracts that expired after they experienced a lapse in service upon Cohutta's closure in September 2009 and as DS Waters employees understood that Cohutta's former customers were not contractually obligated to DS Waters. Referencing the terms of a Cohutta service agreement, DS Waters contends that Fontis's statement is false as the customer contracts could be terminated only if one party gave the other a thirty-day notice of an intention to terminate the agreement. DS Waters additionally argues that due to its purchase of certain Cohutta assets it was a valid assignee of the customer contracts. Based on this showing, there is sufficient evidence from which a jury could reasonably conclude that Fontis's statement was false. Additionally, a jury could reasonably conclude that the statement was material as it was in regards to customers' contractual obligations, which DS Waters had allegedly acquired. Considering that the Letter was sent to many, if not all, of Cohutta's former customers and Fontis acquired a large number of those customers, a jury could reasonably conclude that the statement played a role in the customers' decision to do business with Fontis rather than DS Waters.

Next, turning to the issue of Fontis's blog postings, DS Waters has failed to establish a genuine dispute of fact tending to sustain its false advertising claim based on those postings. In a blog posting in January 2010, Fontis claimed that it had purchased “all of the rental assets and other equipment of the former Cohutta Water from North Georgia National Bank” and that it would contact “all customers with equipment” to collect it or begin charging rent [Doc. No. 114, Ex. M]. Another Fontis posting, in April 2010, allegedly stated: “Fontis Water has purchased the equipment and assets of Cohutta Water, including cooler, bottles, racks and coffee makers” [Doc. No. 251, 12]. DS Waters argues that Fontis did not purchase all of Cohutta's equipment only its bottling equipment. The statements in Fontis's January 2010 blog are not false or misleading; DS Waters provides no explanation for its contention that they are. While Fontis's statement in its April 2010 blog that it purchased the equipment and assets of Cohutta could be misleading, DS Waters has presented no evidence indicating that Cohutta's former customers accessed the blog, were confused by the misrepresentation, and decided to do business with Fontis based on that misrepresentation.

However, there is evidence from which a reasonable jury could conclude that Defendants made oral misrepresentations regarding their affiliation with Cohutta, which caused customer confusion. DS Waters's Call Log entries indicate that some customers reported that they elected to do business with Smoky Mountain because they were told by Smoky Mountain that it had purchased Cohutta.[43] Several Call Log entries also indicate that Fontis reportedly told customers that it had acquired Cohutta. Accordingly, neither Smoky Mountain nor Fontis is entitled to summary judgment on DS Waters's Lanham Act claims to the extent the claims are based on allegations of oral misrepresentations.[44] Accordingly, Fontis's motion for summary judgment as to Counts I and II and Smoky Mountain's motion for summary judgment as to Counts III and IV are GRANTED IN PART and DENIED IN PART.

Following the filing of Defendants' motions for summary judgment on all claims in the complaint, DS Waters filed a notice of withdrawal of its claim for conversion (Count V). Defendants objects to DS Waters's notice of withdrawal, contending that the notice was procedurally improper under Federal Rules of Civil Procedure 15(a)(2) and 41(a). According to Defendants, DS Waters may not withdraw its claim without obtaining Defendants' consent or leave of court. Defendants urge the Court to disregard the notice of withdrawal and to grant their motion for summary judgment as to Count V and dismiss the claim with prejudice.

*27 DS Waters provides no authority as the basis for its notice of withdrawal of Count V, filed long after the August 22, 2011 deadline for amendments to the pleadings. Defendants contend that the DS Waters's attempt to unilaterally withdraw its claim at this stage of the litigation is barred under Rule 15(a)(2) and 41(a). Rule 41(a) is inapplicable as it addresses the dismissal of entire actions. Exxon Corp. v. Maryland Cas. Co., 599 F.2d 659, 662 (5th Cir. 1979). Rule 15(a) does apply as, through its notice of withdrawal of Count V, DS Waters seeks to amend its pleadings. At this stage of the action, DS Waters is foreclosed from amending as a matter of course and may only amend upon Defendants' written consent or the leave of court. As DS Waters has sought neither, its notice of withdrawal is improper and the Court shall disregard it.

Defendants are entitled to summary judgment on Count V. The Georgia Supreme Court's decision in Robbins v. Supermarket Equip. Sales, LLC, 290 Ga. 462 (2012), makes clear that the Georgia Trade Secrets Act (GTSA), O.C.G.A. § 10-1-767(b)(2), preempts any claim that is based on the same factual allegations as the GTSA claim but seeks relief independent of the GTSA. Here, DS Waters's claim for conversion is based on the same allegations of misappropriation as its claim for misappropriation of trade secrets under Georgia law. DS Waters concedes as much in seeking to withdraw its conversion claim in view of Robbins. Accordingly, Defendants' motions for summary judgment are GRANTED as to Count V of the complaint.

Defendants are not entitled to summary judgment on DS Waters's misappropriation of trade secrets claim (Count VI). Lists containing the identities of and information regarding the customers of a business are considered a trade secret under O.C.G.A. § 10-1-761(4) as long as (1) they are not readily ascertainable by proper means and (2) reasonable efforts have been made to ensure their secrecy. Avnet, Inc. v. Wyle Labs., Inc., 263 Ga. 615, 616, 473 S.E.2d 302, 303 (1993). Defendants maintain that Cohutta's customer list was not a trade secret as it was readily ascertainable by proper means and neither Cohutta nor Stillwater, and later DS Waters, made an effort to secure the list. Additionally, they dispute the existence of the list and emphatically deny that they accessed and misused the list. As disputes of material facts abound, disposition of DS Waters's trade secret misappropriation claim upon summary judgment is unwarranted.

First, although the information in Cohutta's customer list could have been ascertained by proper means—for example, the memories of Cohutta's former drivers—DS Waters has alleged the misappropriation of the tangible list. It is not clear that the documents comprising the customer list could have been acquired through proper means. Second, DS Waters points to record evidence indicating that Cohutta and later Stillwater and DS Waters took steps to maintain the confidentiality of customer information [Doc. No. 250, 4-7]. While Defendants may disagree with DS Waters as to whether the methods employed were reasonable, “the determination [of reasonableness] ordinarily represents a question for the jury.” Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 301 (6th Cir. 2008). “[O]nly in an extreme case can what is a reasonable precaution be determined as a matter of law, because the answer depends on a balancing of costs and benefits that will vary from case to case.” Learning Curve Toys, Inc. v. Playwood Toys, Inc., 342 F.3d 714, 725 (7th Cir. 2008) (quoting Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 925 F.2d 174, 179 (7th Cir. 1991) (internal quotation marks omitted)). Third, as to the existence and acquisition of the customer list, Defendants contend that DS Waters has failed to show that a tangible customer list existed and they cite to employee testimony indicating that they did not acquire Cohutta's customer list. DS Waters cites to the deposition testimony of Fontis's Jamie Carroll and Smoky Mountain's Richard Flanigan indicating that they acquired “fairly comprehensive lists” containing customer names, addresses, and the serial numbers of any Cohutta equipment residing with each customer [Doc. No. 342, 105:6-105:16; Doc. No. 117:3-117:18]. This evidences a dispute of material fact. Fourth, DS Waters has presented sufficient circumstantial evidence from which a jury could reasonably infer Defendants use of Cohutta's customer list. DS Waters points Smoky Mountain invoices with non-sequential customer ID numbers, which could suggest that Smoky Mountain had access to customer information before the former Cohutta driver it had hired began signing up customers. There is also evidence in the form of the sequential numbering of customers in Fontis's GBC records and its monthly invoices from which a jury could reasonably infer Fontis's use of Cohutta's customer list. This additional circumstantial evidence is discussed above in the Court's analysis of DS Waters's motion for sanctions. Additionally, DS Waters points to the sheer number of customers signed up by Defendants in a relatively short period of time. There is sufficient evidence for DS Waters to present to the jury to substantiate its claim of trade secretes misuse. Thus, Defendants' motions for summary judgment on Count VI are DENIED.

*28 DS Waters's claim for tortuous interference with contractual relations survives summary judgment. The elements of a claim for tortuous interference with contractual relations are recited above in the Court's analysis of Defendants' counterclaim[45] and the Court does not reiterate them. There exists a dispute of fact as to whether DS Waters had rights to the customer contracts at issue. Defendants contend that the customer contracts at issue were subject to NGNB's superior security interest and DS Waters maintains that these contracts were not a part of NGNB's security interest and were not included in its Bill of Sale. Thus, the issue is one for the determination of the jury. Additionally, DS Waters has sufficiently answered Defendants' contention that it was not harmed by their alleged interference by pointing to evidence—in the form of its Call Log and other, circumstantial evidence—indicating that customers terminated their contractual obligations that DS Waters may have acquired from Cohutta.

Defendants are entitled to summary judgment on DS Waters's claim for interference with business relations. The elements of a tortuous interference with contractual relations apply to a claim for tortuous interference with business relations. See Dalton Diversified, Inc. v. AmSouth Bank, 270 Ga. App. 203, 208-209, 605 S.E.2d 892, 897-898 (2004). However, a plaintiff must show that the defendant interfered with a business relationship that was “reasonably likely to develop in fact” by presenting direct rather than circumstantial evidence. Trilink Saw Chair, LLC v. Blount, Inc., 583 F. Supp. 2d 1293, 1324 (N.D. Ga. 2008) (quoting Hayer v. Irwin, 541 F. Supp. 397, 429 (N.D. Ga. 1982)). DS Waters has presented no direct evidence; it merely contends that business relationships with Cohutta's former customers were likely to develop because it had purchased Cohutta's goodwill, its trade name, and its customer relationships and it was offering the customers the same pricing. A jury may “hypothesize as to the likelihood of future business relationships,” but “evidence that only allows the jury to speculate that a business relationship was likely to develop is an insufficient basis for a tortious interference claim.” Trilink, 583 F. Supp. 2d at 1325. Accordingly, DS Waters's claim of tortuous interference with business relationships does not survive summary judgment.

In Count VIII of its complaint, DS Waters claims that it is entitled to attorneys' fee under O.C.G.A. § 13-6-11 because Defendants' conduct in destroying documents before the start of litigation and their refusal to return documents belonging to DS Waters demonstrates bad faith and stubborn litigiousness and has caused DS Waters unnecessary trouble and expense. The requisite bad faith is “bad faith connected with the transaction and dealings out of which the cause of action arose, rather than bad faith in defending or resisting the claim after the cause of action has already arisen.” Monterrey Mexican Rest. Of Wise, Inc. v. Leon, 282 Ga. App. 439, 451, 638 S.E.2d 879, 890 (2006). Here, DS Waters has alleged bad faith with relation to Defendants' conduct after its causes of action under the Lanham Act and the GTSA arose. Thus, Defendants' alleged destruction of documents speaks more to bad faith in defending or resisting DS Waters' claims rather than to bad faith in the transactions giving rise to DS Waters's causes of action. Thus, DS Waters has failed to allege facts evidencing Defendants' bad faith, which, if proved, would permit a recovery of attorneys' fees. Similarly, DS Waters cannot recover attorneys' fees based being subjected to unnecessary trouble and expense or on Defendants' stubborn litigiousness. “A recovery of attorney fees under O.C.G.A. § 13 6 11 for stubborn litigiousness or for causing the plaintiff unnecessary trouble and expense is authorized where the evidence reveals no bona fide controversy or dispute with regard to the defendant's liability.” Steel Magnolias Realty, LLC v. Bleakley, 276 Ga. App. 155, 157, 622 S.E.2d 481, 483 (2005). Here, as explored above, there is a bona fide controversy. Thus, “there can be no stubborn litigiousness as a matter of law.” Id. Defendants are entitled to summary judgment on Count VIII.

*29 As discussed above, Defendants' motions for summary judgment are GRANTED IN PART and DENIED IN PART. Specifically, Fontis is entitled to summary judgment on Counts I and II to the extent the Counts are based on the statements contained in Fontis's blog postings. Fontis is not entitled to summary judgment on Counts I and II to the extent the Counts are based on the above identified statement in the November 6 Letter and its alleged oral misrepresentations. Smoky Mountain is entitled to summary judgment on Counts III and IV to the extent the Counts are based on allegations related to Smoky Mountain's letters but is not entitled to summary judgment on these Counts to the extent they are based on its alleged oral misrepresentations. Defendants are entitled to summary judgment as to Count V. Defendants are not entitled to summary judgment on Count VI. Defendants are entitled to summary judgment on Count VII to the extent it is based on the claim for tortuous interference with business relations but are not entitled to summary judgment on this Count to the extent it is based on the claim of tortuous interference with contractual relations. Defendants are entitled to summary judgment as to Count VIII.

For the foregoing reasons:

SO ORDERED, this 12th day of September, 2012.

Fork lift trucks located at the Calhoun Facility and water coolers and related equipment and other property located at the Cohutta facility in Ellijay, Georgia, were exempted from the sale. These items are not at issue here.

DS Waters provides no details regarding the content of the e-mails allegedly destroyed and their recipients or senders.

As DS Waters did not become definitively aware that the documents categorized in its motion for leave to supplement would not be forthcoming until the parties' conference in April 2012, a few months after DS Waters filed its motion for sanctions, its motion for leave to supplement [Doc. No. 333] is GRANTED.

Defendants filed a “preliminary” response in opposition to the motion for spoliation sanctions arguing that the motion should be denied as it was untimely and filed with out an effort to engage in a good faith conference over the issues. Defendants reserved their right to respond to the merits of the motion if the Court did not promptly deny the motion; they later filed a second response arguing the merits of the claims raised in the motion. The Court is aware of no authority allowing a party to oppose a motion in the manner employed by Defendants. Nevertheless, in the interest of ruling on the merits of the motion the Court considers both responses filed by Defendants. DS Waters has replied to both responses. In considering the Defendants preliminary response, the Court concludes that there is no merit to Defendants' argument that the motion for spoliation sanctions should be denied in its entirety as it was untimely and as a good faith conference between the parties was a prerequisite.

DS Waters takes the position that Smoky Mountain did not receive its first notice of the litigation until November 4, 2009, when Stillwater sent a cease and desist letter to Smoky Mountain [Doc. No. 231-1, 15; Stillwater Letter at Doc. No. 24, Ex. H]. However, Smoky Mountain was already in receipt of DS Waters's demand letter at this time as DS Waters had transmitted its demand letter to both Defendants on October 23, 2009 [Letter to Smoky Mountain at Doc. No. 114, Ex. Q]. Thus, the Court considers the October 23 Letter in its analysis of Smoky Mountain's duty to preserve.

Two individuals, Jamie Carroll and Mary Raugh have testified as Fontis's representatives. The Court assumes that the citation to pages 166 through 168 of the Fontis 30(b)(6) deposition references the deposition of Jamie Carroll in his capacity as the representative for Fontis, because the 30(b)(6) deposition of Fontis through Mary Raugh ends on page 114.

There is no indication that the spreadsheet data were not imported into GBC. While DS Waters cites to the deposition transcript of GBC Systems, Inc. as support for the proposition that GBC Systems' support would have been necessary to import data and that GBC Systems did not assist with such an import, when read in context, the testimony indicates that while GBC Systems' assistance may be necessary to import data in bulk, GBC users can import data as individual entries without the assistance of GBC Systems [Doc. No. 337, 25:6–22, 29:22–30:5].

Although Mary Raugh was also later deposed in her capacity as a corporate representative of Fontis, it does not appear that testimony regarding Fontis's contemplation of filing claims against DS Waters was elucidated during that deposition.

Fontis had the cooler serial number information by January 22, 2010, and Mary Raugh testified that it took her “a good two weeks” to input serial number information from the spreadsheets to GBC [Doc. No. 203, 148:15–19]; during the process she was throwing away sheets as she went through them [Id. at 149:1–4]. Thus, it is likely that the spreadsheets were discarded before suit was filed.

The only other time the e-mails are addressed by DS Waters is in its reply brief, where it notes that the e-mails were not mentioned in Smoky Mountain's opposition.

Initially, DS Waters had moved to compel discovery from Defendants but the Court denied the motion without prejudice for the parties' failure to confer in good faith [Doc. No. 243]. Thereafter, the parties held a good faith conference in an attempt to resolve their discovery disputes.

Although the Court discusses DS Waters's failure as it is the party that bears the burden of showing that sanctions are warranted, the Court by no means condones such a belated production of a large amount of discovery by Defendants.

Fifth Circuit decisions handed down on or before September 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

DS Waters does argue that it did not conduct a customer survey to assist it in addressing a potential theme Defendants may present at trial—that of the inequity of a large company seeking to engage a small, locally owned business in litigation—because the cost of conducting the survey, when there had been no demand for a jury trail, outweighed the survey's potential benefits. However, the Court is not convinced that the absence of the survey would prejudice DS Waters to any great extent.

DS Waters's counsel now disavows the request for jury instruction as a “personal misstatement” [Doc. No. 293-1, ¶ 4]. However, this “personal misstatement” appears not only at multiple points in its motion for sanctions and brief in support but also in its reply brief, filed more than a month later.

The docket entry script is generated based on the selections made by the party in the process of filing a document on the docket and not by the Court clerk.

DS Waters argues that courts give considerable weight to the fifth Parrott factor. But it is only the appellate court that gives “considerable weight” to that factor and, generally, does not reverse a decision denying the request for jury trial if the “failure is due to mere inadvertence on the movant's part.” Parrott, 707 F.2d at 1267.

Smoky Mountain has adopted and incorporated by reference all arguments and objections set forth in Fontis's Objections [Doc. Nos. 274–277].

Fontis also appears to object to Mr. Jackson's own testimony that he did not believe it was plausible for the former Cohutta drivers to have recreated the Cohutta customer list from memory. However, Fontis concedes that that proposition is not “expressly cited by DS Waters” [Doc. No. 298]. As Fontis's objections are based on the evidence relied upon by DS Waters at the summary judgment stage, the Court does not address Mr. Jackson's testimony not cited by DS Waters.

Defendants contend that the customer statements were “rephrased” by the Cohutta Team. However, the testimony cited, when read in context, reveals that the Cohutta Team was instructed to summarize whatever the customers said [Doc. No. 318, 45:16—46:11]. Defendants provide no indication that the recorded statements are materially different from the customers' accounts.

However, as Fontis's supposition that DS Waters did not have confidentiality agreements with its employees finds no support in the record, the Court will not consider that supposition in its analysis at summary judgment.

Mr. Brandon Ray, an employee of Legends Hair & Skin Studio, did not remember whether he had received the Williams Letter or not [Doc. No. 201, 61:13–16].

Although Lisa Buchko of Hayes Pipes Supply Co., Inc., stated that she was confused upon receiving the Williams Letter, it is not apparent that her confusion resulted from the representations in the Letter itself. She recalls that she was confused upon receiving the Letter because she had also received information from Fontis that “it had purchased the [Cohutta] bottled water and equipment [Doc. No. 204, 45:7–16].”

Lisa Buchko testified that DS Waters delivered water to one her employer's office locations after Cohutta closed its business but she does not remember the exact point in time [Doc. No. 204, 43:13–18]. She did not provide a reason for the initial acceptance of service with DS Waters.

With specific regard to Defendants' false advertising claim (Count III), the representations at issue “must be commercial speech by a defendant in commercial competition with plaintiff for the purpose of influencing consumers to purchase the defendant's goods and must be disseminated sufficiently to the relevant purchasing public in such a way as to constitute advertising or promotion.” Wilchcombe v. Teevee Toons, Inc., 515 F. Supp. 2d 1297, 1305 (N.D. Ga. 2007). Here, DS Waters's oral representations meet these elements as the representations dealt with DS Waters's business, they were made to prospective customers with the view of soliciting business, were allegedly made to numerous Cohutta's former customers contacted by DS Waters, and DS Waters's and Defendants are competitors in the bottled water delivery business.

DS Waters argues that its statements regarding the ownership of coolers are not statements regarding the “nature, characteristic, or qualities” of services and, thus, cannot serve as a basis for a Lanham Act claim. This argument is raised for the first time in DS Waters's reply brief to is motion for partial summary judgment. As such, the Court is not bound to consider DS Waters's new argument. See Reliance Ins. Co. of Ill., Inc. v. Richfiled Hospitality Servs., Inc., 92 F. Supp. 2d 1329, 1332 (N.D. Ga. 2000). Moreover, the argument fails to persuade as it is not developed fully. False or misleading representation of facts which are likely to deceive or confuse as to the “affiliation, connection, or association” of the person making the representation also give rise to a Lanham Act claim under § 1125(a)(1)(A). Here, DS Waters's statements regarding the ownership of equipment could arguably be viewed as likely to cause confusion regarding its affiliation or association with Cohutta. DS Waters does not address this aspect of the issue.

The Call Log entry states: “COHUTTA OUTBOUND CALL SPOKE TO LAURA WHO STATE THEY HAD GONE W FONTIS BUT WHEN I MENTIONED CLR P U SHE SAID SHE WANTED TO REVIEW OUR INFO AND IF THEY WERE SUPPOSED TO BE W US THEY WILL XFER SERV” [Doc. No. 193-4, Cust. No. 4342043].

DS Waters asserts that the P U or Pick Up notations in the Call Log merely served as a shorthand method to keep track of Cohutta's former customers who retained Cohutta equipment and not an indication of an actual pick up or rental charge [Doc. No. 252, 6 n.2].

There is no indication that the charging of rent was “commercial advertising or promotion” under § 1125(a)(1)(B).

DS Waters has not argued that summary judgment in its favor is warranted on this issue.

The press release is not attached as an exhibit to Defendants' motion nor is it located at the citations provided by Defendants [Doc. No. 193-1, 11 n.47].

Defendants cite the testimony of the Cohutta Team Supervisor who received an e-mail communication from a team member indicating that a customer had mentioned reading the press release [Doc. No. 318, 182:17–183:18]. The customer is not identified in the e-mail and it is not apparent that the customer choose to do business with DS Waters or, if the customer choose DS Waters, what motivated the customer's decision.

DS Waters has not argued that it is entitled summary judgment on these issues.

DS Waters asserts that “it is still uncertain as to the true ownership of the coolers that were located with customers as it is unclear whether [NGNB's] security interest in the coolers was in fact superior to Stillwater's interest” [Doc. No. 188-1, n.7]. However, it provides no evidence to substantiate its claim that the order of the security interests has yet to be clarified. Its citation to the deposition of NGNB's corporate representative, Matthew Robbins, does not support its claim. Rather, Mr. Robbins's testified that “we knew all along who owned the coolers. We knew that we had security interest in the coolers” but he did not recall if there was ever “a question as to whose interest was superior” [Doc. No. 325, 51:1–8].

DS Waters also does not provide authority for the proposition that a buyer fails to acquire rights in property upon a sale if that property is converted prior to the sale.

A number of Cohutta coolers may have been taken by a third party [Doc. No. 188-20]. While the letter by the buyer of those coolers explicitly states that the buyer “has never removed any property from Cohutta Springs premises or from its customers,” it indicates that the coolers were bought from a third party who allegedly foreclosed on a mechanics lien on the coolers [Id.].

Defendants assert a claim for interference with contractual relations but supply no record citation for the proposition that they had contracts with customers who were charged rent by DS Waters. See Atlanta Mkt. Ctr. Mgmt., Co. v. McLane, 269 Ga. 604, 608, 503 S.E.2d 278, 282 (1998) (“In order to prevail on a claim alleging tortious interference with contract, a plaintiff must establish the existence of a valid contract ....”).

See supra Part II.D.2.a(1)(b).

Smoky Mountain does not provide an analysis of its position to any significant extent; for the most part, it provides little more than conclusory assertions.

As noted above, the Court is not bound to consider arguments raised for the first time in a reply brief. However, the Court does address the merits of Defendants' new argument here.

Smoky Mountain's citation to ¶¶ 23–24 of the Def's Statement of Undisputed Material Facts does not support its contention that DS Waters “represented itself as ‘Cohutta’ ” [Doc. No. 191-1, 12]. The statements cited only indicate that DS Waters representative told customers that DS Waters had purchased Cohutta and/or all of its assets.

Supra Part II.D.2.a(1).

The Court considers the Call Log evidence as it can be reduced to admissible form at trial. See supra Part II.C.2.

Arguably, the oral misrepresentations may serve as a basis for DS Waters's unfair competition claim as the alleged misrepresentations are likely to cause confusion as to Defendants' “affiliation, connection, or association” with Cohutta. 15 U.S.C. § 1125(a)(1)(A).

Supra Part II.D.2.a(3).