L.L. BEAN, INC., Plaintiff/Defendant-in-counterclaim, v. BANK OF AMERICA CORPORATION and FIA CARD SERVICES, N.A., Defendants/Plaintiffs-in-counterclaim. FIA CARD SERVICES, N.A., Plaintiff-in-counterclaim, v. L.L. BEAN, INC., Defendant-in-counterclaim CIVIL ACTION 08-177-PH United States District Court, D. Maine, PORTLAND Signed December 17, 2009 Counsel George S. Isaacson, Matthew P. Schaefer, Brann & Isaacson, Lewiston, ME, for Plaintiff/Defendant-in-counterclaim. Allyson E. Kurker, S. Elaine McChesney, Bingham McCutchen LLP, Boston, MA, Angela H. Zimmern, Bradley R. Kutrow, Grant D. Goldenberg, McGuireWoods LLP, Charlotte, NC, Corin R. Swift, Bingham McCutchen LLP, Portland, ME, for Defendants/Plaintiffs-in-counterclaim Martin, David L., United States Magistrate Judge ORDER GRANTING IN PART DEFENDANTS' MOTION TO COMPEL *1 Before the Court is Defendants' Motion to Compel Plaintiff L.L. Bean, Inc. to Answer Interrogatories and Produce Documents with Incorporated Memorandum of Law (Doc. #178) (“Motion to Compel” or “Motion”). A hearing was held on December 14, 2009. I. Relief Sought By the Motion, Defendants Bank of America and FIA Card Services, N.A. (“Defendants”), seek to compel Plaintiff L.L. Bean, Inc. (“Bean”), to answer Defendants' Second Set of Interrogatories (the “Interrogatories”) and Defendants' Second Request for Production of Documents (the “Document Requests”) (collectively, the “Discovery Requests”). See Memorandum of Law in Support of Defendants' Motion to Compel L.L. Bean, Inc. to Answer Interrogatories and Produce Documents (“Defendants' Mem.”) at 1. The Discovery Requests seek information concerning the identity of all data, documents, and information provided by FIA/MBNA to Bean that Bean still possesses in any source, including its electronic storage systems, and any data, information, or documents that Bean has passed along to Barclays Bank Delaware or has itself used in connection with the new L.L. Bean Visa Credit Card Program (the “New Program”). See id. Defendants state that the information requested is highly relevant: to one of the central issues in connection with Defendants' Counterclaim -- whether Bean has misappropriated FIA's confidential and proprietary information, which was given to Bean to be used solely in connection with the old Bean-FIA credit card program (the “Old Program”), but for which Bean has used and disclosed to Barclays in connection with the New Program in order to compete with FIA. Id. at 2. With respect to when Bean's written responses to the Discovery Requests were due, Defendants state that although they “agreed to a brief extension of time in light of the scheduled mediation, Bean's responses are now more than 30 days overdue, and Bean has given no indication as to when it will respond.” Id. at 1. Defendants refer to this “agreed-upon extension of time” a second time in their memorandum, again without specifying the length of the extension. Id. at 4 (“After a brief, agreed-upon extension of time, Bean's responses are now more than thirty days overdue.”). The Motion also seeks an award of fees and costs pursuant to Fed. R. Civ. P. 37(a)(5). See Motion at 1. In support of this request Defendants note that the Rule: provides that the Court upon granting a motion to compel discovery, “shall ... require the party ... whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees,” unless the Court finds the movant failed to make a good faith effort to obtain the discovery without court action, the opposing party's non-disclosure “was substantially justified,” or some other circumstances “make[ ] an award of expenses unjust.” Defendants' Mem. at 4-5 (quoting Fed. R. Civ. P. 37(a)(5))(first three alterations in original). II. Bean's Response Bean responds that the Motion should be denied because Bean has “fully responded to the Defendants' discovery requests.” L.L. Bean Inc.'s Opposition to Defendants' Motion to Compel Responses to Defendant's [sic] Interrogatories and Document Requests (Doc. #187) (“Opposition”) at 1. With respect to the timeliness of Bean's responses, Bean states that in September 2009, after granting Defendants' counsel an open-ended extension of time to respond to Bean's second set of document requests and third set of interrogatories, “Bean's counsel requested, and received, a similar open-ended extension of time to serve the responses.” Id. at 2 n.1. Presumably as permitted by that extension, Bean states that it “served responses to the Defendants' interrogatories on November 20, 2009 ...,” id. at 4, and “served its formal document responses on December 4, 2009,” id. *2 With respect to Defendants' request for attorneys' fees, Bean contends that three factors warrant the denial of that request. See id. at 5. First, Bean cites the extension of time which its counsel had requested and which, it states, paralleled the extension which Bean's counsel had already granted Defendants. See id. Second, Bean notes that it served its “interrogatory responses and documents in the same time frame in which the Defendants served their document responses.” Id. Third, Bean argues that Defendants' request for fees should be viewed in context with Bean's pending motion to compel. See id.; see also L.L. Bean, Inc's Motion to Compel Defendants to Produce Documents Responsive to Bean's Requests and Certain Information Withheld on the Grounds of Privilege as to Which No Privilege Appears to Apply (Doc. #177) (“Bean's Motion to Compel”). Regarding this third factor, Bean contends that it “certainly incurred greater fees and costs in pursuing ... repeated reminders [to Defendants], and in preparing and filing its motion to compel, than the Defendants[ ] incurred in serving a motion only four days after they produced a set of outstanding discovery requests.” Id. III. Ruling A. Specific Documents In their reply memorandum, Defendants dispute that Bean has fully responded to Defendants' Discovery Requests, and they identify three categories of alleged deficiencies. See Defendants' Reply Memorandum in Support of Motion to Compel Plaintiff L.L. Bean, Inc. to Answer Interrogatories and Produce Documents (Doc. #190) (“Reply Mem.”) at 4-5. The Court considers each of these categories and rules as stated below: 1. The OAP-specific customer list given to Axciom and Barclays. To the extent that the Motion seeks production of the customer lists containing “3.7 million” and “5.4 million,” Reply Mem. at 4 n.2 (quoting Exhibit 1 (Email from Liberatore to McDevitt of 1/15/08 at 2:27 p.m.)), the Motion is GRANTED. 2. The “OAP Access Database.” Reply Mem. at 4. To the extent that the Motion seeks this information, it is GRANTED.[1] 3. Documents incorporating or embedding FIA data into Bean's own documents. At the hearing, counsel for Bean expressed his belief that all such documents have been produced. Accordingly, with respect to these documents, the Motion is granted to the extent that Bean shall confirm in writing that it has produced all responsive documents. Bean shall comply with the above rulings within twenty-one days of the date of this Order.[2] B. Attorneys' Fees Although Defendants maintain that they “never agreed to an ‘open-ended’ extension of time to respond to the Discovery Requests,” Reply Mem. at 2, they do not dispute that they agreed to an extension, see id. While Defendants apparently believed that the extension was to be “brief,” id.; see also Defendants' Mem. at 1, 4, their failure to specify in their memoranda any set period of time for the extension leads the Court to conclude that the extension had no specific ending date. Although Defendants argue that they demanded Bean's responses on multiple occasions and that they would not have made such demands if they believed they had agreed to an “open ended” extension of time, see Reply Mem. at 2, the question is not whether Defendants believed the extension was “open ended,” id., but whether the extension had a definite ending date. Defendants also argue that Bean did not respond to Defendants' demands for a response to its Discovery Requests by reminding Defendants of their agreement to an “open ended” extension of time and cite this as evidence that they had not agreed to such an extension. See id. While this argument has somewhat more persuasive force, in the final analysis it does not alter the fact that the extension to which Defendants agreed had no specific ending date. This weighs against Defendants' request for an award of attorneys' fees. *3 The Court also agrees with Bean that Defendants' request for attorneys' fees must be viewed in context, taking into consideration when Defendants served their responses to Bean's document requests and that the Court has granted in part Bean's Motion to Compel, see Order Granting in Part Bean's Motion to Compel of 12/17/09. In the Court's view, Defendants' compliance with their own discovery obligations in this action has not been markedly different from Bean's.[3] See, e.g., id. at 10 (concluding that a portion of Bean's Motion to Compel should be denied without prejudice to avoid the suggestion on the record that there was no basis for the motion or that Defendants' conduct was blameless). Moreover, Bean's suggestion that the Court could on its own motion require Defendants to pay fees and costs incurred by Bean in bringing Bean's Motion to Compel, see Opposition at 5 n.2, is not baseless, see Langton v. Johnston, 928 F.2d 1206, 1226 (1st Cir. 1991)(“it is beyond cavil that a district court, acting sua sponte under ... [Rule] 37(b) ... may require a party to assume an opponent's fees and costs”). However, after consideration, the Court concludes that the best course of action is to require each side to bear its own fees and expenses with respect to the motions heard on December 14, 2009. Accordingly, to the extent that the instant Motion seeks an award of expenses and costs, the Motion is DENIED as the Court finds that the circumstances described above make an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5). IV. Conclusion The Motion to Compel is GRANTED to the extent stated in Part III. A. of this Order. See supra at 4-6. Bean shall comply within twenty-one days of the date of this Order. In all other respects, including Defendants' request for an award of expenses and fees pursuant to Rule 37(a)(5), the Motion is DENIED. So ordered. ENTER: Footnotes [1] At the hearing, Bean's counsel indicated that he did not know how burdensome it would be for Bean to produce the “OAP Access database.” The Court then expressed its inclination to order the production of the database with the understanding that if production proved to be excessively burdensome, Bean, after first conferring with Defendants regarding the problem, could seek a reconsideration of this particular ruling. Any request for reconsideration should be supported by an affidavit explaining why the production is excessively burdensome. [2] The Court purposely allows a greater amount of time than usual because of the intervening holidays. [3] Defendants attempt to draw a distinction between their past due compliance with discovery obligations and Bean's similar conduct on the basis that “it is undisputed that Bean assented to an extension of time for the responses.” Defendants' Reply Memorandum in Support of Motion to Compel Plaintiff L.L. Bean, Inc. to Answer Interrogatories and Produce Documents (Doc. #190) (“Reply Mem.”) at 3. The Court finds this argument unpersuasive because it is also “undisputed” that Defendants agreed to an extension of time for Bean to comply. While Defendants contend that they only agreed to a brief extension, the Court has concluded that the extension had no set ending date.