*1 This matter is before this Court on Plaintiff's Motion to Compel Defendant to Provide Complete Responses to Plaintiff's Initial Discovery (“Motion”). ECF No. 35. The Honorable K. Michael Moore, Chief Judge, referred this case to the undersigned for all pretrial discovery. ECF. No. 7; see also 28 U.S.C. § 636; S.D. Fla. L.R., Mag. R. 1. Upon thorough and careful review of the record, the applicable law, and being otherwise fully advised in the premises, Plaintiff's Motion is GRANTED in part and DENIED in part for the reasons set forth below.

I. Background

This action arises from a trademark infringement dispute where Marksman Security Corporation (“Plaintiff”) accuses P.G. Security Inc. (“Defendant”) of infringing on its trademark by creating an Instagram page account that bore Plaintiff's name, as well as purchasing domain names similar to Plaintiff's that when accessed, sent consumers to Defendant's website instead of Plaintiff's. ECF No. 1. Plaintiff filed this Motion in response to Defendant's responses and objections to its initial interrogatories, requests for admission, and requests for production. ECF No. 35. Defendant filed a response to the Motion. ECF No. 36. Plaintiff filed a reply. ECF No. 37.

II. Requests for Admission

A. Parties’ Arguments

Plaintiff first argues that Defendant's responses to requests for admission (“RFAs”) 9, 20, 21, 23, and 24, are deficient because Defendant is claiming that it has made reasonable inquires but has no knowledge regarding the subject matter of the requests. Plaintiff claims it has emails, acquired in a state court action, that show otherwise. In essence, Plaintiff argues that Defendant must be withholding admitting to the requests because Plaintiff has acquired emails from third parties that show Defendant has knowledge of the subject matter of the requests.

Plaintiff argues that Defendant's response to RFA 11 is inconsistent with the facts. Plaintiff's request sought to have Defendant admit that “the Marksmansecurity Instagram account page at one time bore Marksman's word mark.”

Defendant contends that the Instagram page was nothing more than a private joke. Further, Defendant argues that it has no company policy for maintaining records or emails. Accordingly, Defendant had no records it could review to respond to RFAs 9, 20, 21, 23, and 24. Specifically, in regard to RFAs 20, 21, 23, and 24, Defendant admits that it is aware of the existence of an email due to a deposition Plaintiff conducted in another case; however, Defendant states that it does not have the email and therefore could not properly respond to the requests.

Regarding RFA 11, Defendant argues that Plaintiff's Amended Complaint states that “Plaintiff's word mark is for the word Marksman.” But the Instagram page bore the name “marksmansecurity,” which is distinct. Accordingly, Defendant admitted that the Instagram page stated “marksmansecurity” and qualified that Plaintiff's word mark is for “Marskman”, which is a different word. Thus, Defendant contends that it admitted to what was actually depicted on the Instagram page.

B. Discussion

*2 Here, the undersigned DENIES Plaintiff's Motion to Compel in regard to the RFAs. Defendant has represented to the Court that it does not have the emails, does not have an email or document retention policy, and cannot truthfully admit or deny the requests for admission. The Court has no reason to doubt Defendant's representation. However, Defendant has an ongoing obligation to supplement its responses to Plaintiff's RFAs if Defendant later discovers the emails. The Motion is also DENIED in regard to RFA 11. It appears that Defendant has answered the request to the best of its ability.

III. Interrogatories

A. Parties’ Arguments

Plaintiff next argues that Defendant purposely failed to list persons known to have knowledge of the allegations raised in the Amended Complaint, Interrogatory 2, and failed to list persons known to have engaged in online and social media marketing on its behalf, Interrogatory 3.

Defendant admits that it failed to list two individuals in response to Interrogatories 2 and 3 but claims that the failure to include them was due to an oversight. In support, Defendant states that the omitted individuals are listed in Interrogatories 4 and 5, and their knowledge or involvement in the case was fully disclosed in those responses.

B. Discussion

Here, Plaintiff's Motion to Compel in regard to Interrogatories 2 and 3 is GRANTED. The undersigned finds that the failure to include the two individuals may have occurred due to an oversight. Nevertheless, Defendant shall supplement its answers to Interrogatories 2 and 3 to include the omitted individuals.

IV. Requests for Production

A. Parties’ Arguments

Plaintiff again argues that Defendant's response that is has no documents responsive to Requests For Production (“RFP”) Nos 1-7, 9-10, and 18 is insufficient because Plaintiff is currently in possession of documents that demonstrate Defendant should have at least some documents responsive to the request. Regarding RFP No. 17, Plaintiff claims that while Defendant provided some responsive documents, it is apparent from the production that Defendant did not provide all responsive documents.

Lastly, Plaintiff argues that Defendant waived its objections to RFP Nos. 19-23 by failing to timely respond to the RFPs. Plaintiff seeks financial documents concerning Defendant's balance sheets, profit and loss statements, cash flow statements, audited financial reports, and organizational charts showing ownership interests. Even if Defendant had not waived its objections, Plaintiff claims that the requested financial information is relevant because Plaintiff seeks disgorgement of Defendant's profits. Further, Plaintiff argues that Defendant has not provided any reason as to why the documents are not relevant. In addition, Plaintiff argues that in the original response to production, Defendant claimed that the documents were irrelevant, but now Defendant claims that they are confidential. Plaintiff argues that Defendant cannot change its objection now.

Defendant responds again that it has no policy for retaining emails or documents, and thus there are no documents in Defendant's custody to provide in response to RFP Nos. 1-7, 9-10, 17, and 18. Specifically, Defendant claims it does not have any more documents to provide to RFP No. 17.

Regarding RFP Nos. 19-23, Defendant claims that the failure to timely respond did not cause any prejudice, and Plaintiff failed to articulate or provide an argument as to any prejudice it suffered caused by the delay. Defendant argues that disclosure of the financial documents sought by Plaintiff would provide it with an opportunity to gain a competitive advantage because Plaintiff would become familiar with Defendant's customer and pricing information, and other business practices. Further, Defendant argues that while Plaintiff claims it suffered harm, there is no mention of economic loss in the Amended Complaint. Defendant further requests the Court to enter a protective order if it orders production of the documents sought.

B. Discussion

*3 Here, Plaintiff's Motion to Compel in regard to RFP Nos. 1-7, 9-10, and 17-18 is DENIED. Again, Defendant has represented to the Court that it has no further documents to provide. The Court is without reason to doubt such representation. Further, Plaintiff's Motion to Compel in regard to RFP Nos. 19-23, which seek Defendant's financial documents, is DENIED without prejudice. Plaintiff has not provided the Court with any argument as to how the documents are relevant, nor has Plaintiff provided any basis that shows Defendant has improperly benefitted from either the misleading domain names or the Instagram page. Mere speculation, without more, is not enough to make this Court compel production of a party's financial documents.

V. Conclusion

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion to Compel, ECF No. 35, is GRANTED in part and DENIED in part as follows:

DONE and ORDERED at Fort Lauderdale, Florida this 8th day of April 2020.