*1 Pending before the Court are a motion for summary judgment and a motion for partial summary judgment. Also pending are 4 motions to exclude or supplement evidence in the summary judgment motions. The motions for summary judgment are fully briefed. Nonetheless, the parties seek to preclude evidence (or add evidence) that is relied on and discussed throughout the summary judgment motions. Thus, if any motion to preclude is granted, it would be extremely difficult to identify where each item of precluded evidence currently resides in the pending motions, responses and replies. Further, if a motion to supplement were granted, it would fall to the Court to identify where to insert this evidence within the pending briefing.

The Court will discuss the motions to preclude or supplement as follows.

1. Vapor Delight

A. Issue

Plaintiff seeks an order “(1) precluding Defendant Skunk, Inc. and Defendant Vatra, Inc. (“Defendants”) from offering any evidence or argument concerning any alleged sales of products using Defendants’ SKUNK Word Mark or SKUNK Word+Design Mark (“Defendants’ SKUNK Marks”) to an entity called Vapor Delight (or anyone associated therewith) and (2) excluding the declaration of Seif Ascar (Dkt. 304-3, pages 84-87).” (Doc. 316 at 2). This presents an excellent example of the issue identified in paragraph one herein. The Court has no idea where Vapor Delight (or Vapor Delight associated) sales are referenced in the currently pending 2,870 pages of briefing on summary judgment.[1]

The heart of the parties’ dispute lies in whether Defendants’ disclosures were adequate. The parties paint a starkly different picture of what was actually disclosed. Plaintiff complains that Defendant “hid” Mr. Ascar and Vapor Delight by not ever connecting the dots that they were among the “select retailers” who (allegedly) purchased Skunk products in 2014. (Doc. 325). Conversely, Defendants claim they disclosed Mr. Ascar and Vapor Delight numerous times (Doc. 323 at 5) with sufficient specificity that Plaintiff should have deduced they were customers/retailers of Defendants. Plaintiff disagrees because, while Plaintiff concedes that both names were disclosed (and Plaintiff itself listed the names in its disclosures (Doc. 325 at 2 n.1)), Plaintiff claims the “facts” were withheld. Plaintiff further complains that when Defendants’ representatives were asked (at deposition) specifically who were the select retailers, the response was “I don't know”. (Id.). Yet, by summary judgment, those same deponents had refreshed their recollection to where they could make avowals about these sales to Vapor Delight specifically. Defendants claim this was merely, “…not initially having perfect knowledge of remembering….” (Doc. 323 at 3).

*2 At bottom, Plaintiff appears to be arguing that it defies believability that someone Defendants claim to have disclosed six separate times from June 27, 2019 to June 1, 2020 (Doc. 323 at 4-5) is someone they did not perfectly remember was the “select retailer” because if they did not remember that, why were they disclosing Mr. Ascar and Vapor Delight as relevant? Defendants provide no direct response to this, instead arguing that the disclosures were adequate.

B. Resolution

This case is subject to General Order 17-08, which is the Mandatory Initial Discovery Pilot Project (“MIDP”). (See generally Doc. 4). The MIDP requires:

(Doc. 4 at 7) (emphasis added).

In the Response (Doc. 323) to the pending motion to exclude, Defendants did not identify a specific place wherein they identified Mr. Ascar or Vapor Delight as a customer/retailer. Instead, Defendants left to the Court the task of going through 40 pages of discovery in this case to determine on its own whether Mr. Ascar/Vapor Delight was disclosed as a customer/retailer. The Court has reviewed these 40 pages; nowhere in this discovery is Mr. Ascar or Vapor Delight identified as a customer or retailer. (Doc. 323 at 23-63).

Further, the only place that Defendants claim there was a description of Mr. Ascar's testimony is from another case. Disclosures in other cases do not “count” as disclosures in this case. Moreover, the description in the other case still did not identify Mr. Ascar/Vapor Delight as a customer/retailer at any point, including 2014. Specifically, the description from the other case stated: “Mr. Ascar is a shop owner who is likely to have discoverable information about [Defendant's] use of its SKUNK and SKUNK & Design marks and the absence of confusion between [ ] the parties’ respective marks as used on the respective goods.” (Doc. 323 at 20). This description no where suggests Mr. Ascar is a retailer of Defendants’ products currently or dating back to 2014.

Finally, the fact that Plaintiff knew of Mr. Ascar in general is insufficient to “provide a fair description of the information [the] person is believed to possess.” (See MIDP Order). In other words, all of Defendants descriptions of Mr. Ascar in this case merely say he has information relevant to this case. (Doc. 323 at 23-63). Such a description could be used for every witness in every case ever filed in federal court. This obviously is not a “fair description” as required by the MIDP.

The fact that Defendants disclosed that they allegedly sold to “select retailers” (Doc. 323 at 63) does not cure the problem because Defendants never disclosed Mr. Ascar was the “select retailer” in question until the day before the close of discovery. The fact that Defendants possessed Mr. Ascar's name as of October 14, 2019 (Doc. 323 at 26) as a relevant witness placed a duty on Defendants to explain why he was a relevant witness.

Thus, because Defendants’ disclosures we inadequate under the MIDP, all evidence of sales to or by Mr. Ascar and/or Vapor Delight is precluded.

2. Lock N Load

A. Issue

*3 Plaintiff also moves to preclude all Lock N Load sales data, which Defendants presented at summary judgment by way of a summary exhibit, because Defendants did not disclose voluntarily or at Plaintiff's request, the documentation underlying the summary exhibit. (Doc. 315). Defendants argue the motion is untimely for two reasons, and that the summary is nonetheless admissible because Plaintiff “agreed” to let Defendants produce it in discovery. Plaintiff responds and argues that the motion is timely, and that Plaintiff never agreed to admissibility. (Doc. 326).

The Court finds the motion is timely because it was filed within the appropriate time period based on when the document was materially relied on in the summary judgment briefing. The Court also finds it timely because it does not seek to compel production of the underlying data (which would have been due within the discovery deadline); instead it seeks to preclude an exhibit on summary judgment that does not comply with the rules of evidence.

Finally, as to the heart of the dispute, the parties agreed (during discovery) after several disputes and meet and confers, that Defendants would produce a summary of sales data, rather than underlying sales data itself. It is undisputed that the underlying data is relevant. There appears to be a dispute as to whether accessing the underlying data is overly burdensome. In agreeing to this summary production, Plaintiff claims it was merely forgoing a motion to compel the underlying data; Plaintiff was never agreeing that the summary was affirmatively admissible by Defendants. (Doc. 315 at 2, citing Fed. R. Evid. 1006). If Defendants wanted to rely on the summary, Defendants had to produce the underlying data. Further, Plaintiff claims the summary (received late in the discovery process) contradicts Defendants earlier representations in discovery regarding sales.

B. Resolution

The Court agrees with Plaintiff that Defendants cannot use a summary in lieu of the underlying data to prove a fact under Federal Rule of Evidence 1006 if all underlying data is not available to the other parties (and, at trial, the Court and the jury). Further, the Court agrees with Plaintiff that producing something in discovery, even at the request of the other party, is not effectively a stipulation that whatever is produced is admissible.[2] Defendants decision (apparently due to an unduly burdensome objection) to not produce the Lock N Load sales data, as was their affirmative obligation under the Federal Rules of Evidence and the MIDP Order if they intended to use it, precludes them from relying on it now. Accordingly, the motion to preclude the Lock N Load sales data summary is granted.

3. Skunkguard.com

A. Issue

Plaintiff seeks to preclude Defendants from, “from introducing any evidence, or making any argument, that any sales of products using Defendants’ SKUNK Word Mark or SKUNK Word+ Design Mark (“Defendants’ SKUNK Marks”) were made on Defendants’ website “skunkguard.com” prior to July 15, 2015.” (Doc. 317 at 2) (emphasis added). This again presents the same problem noted in paragraph one, meaning the Court does not know where this evidence is to be found in the 2,870 pages of summary judgment briefing. Further, the parties are again having their ships passing in the night discovery problem which the Court has noted many times before in this case, in that Defendants argue they have not offered any evidence of sales on the website. Instead they offer evidence that the website was up and running prior to July 15, 2015 and that customers viewed the website as a catalog to thereafter make phone orders. Thus, Defendants argue there is no evidence that falls within the category of “sales on” the website, which Defendants say is all Plaintiff seeks to preclude. In sum, Defendants argue that no evidence in the record falls within the scope of what Plaintiff's move to preclude.

*4 This dispute stems back to Plaintiff's attempts in discovery to obtain evidence regarding the Skunkguard.com website. Initially, such discovery was propounded on Defendants who claimed that any such information was not in Defendants’ possession, custody or control. Then Plaintiff propounded discovery on GoDaddy who hosts the website. Defendants then claimed the discovery on GoDaddy was overly broad for a variety of reasons. The Court ruled on this issue and narrowed the subpoena mostly consistent with Defendants’ objections. (Doc. 236).

The Court then learned that notwithstanding this Court's order compelling GoDaddy's compliance with the subpoena, Defendants continued to object to the subpoena to prevent GoDaddy from complying. The parties, as always, tell vastly different versions of what occurred. Plaintiff states:

(Doc. 317 at 2-6).

Defendants state:

(Doc. 327 at 8-9).

Plaintiff replies and alleges:

(Doc. 328 at 3-4).

The Court, recognizing that Defendants may have evidence on which they wish to rely that was not properly disclosed, gave Defendants the opportunity cure and disclose such evidence even at this late date. Specifically, on August 14, 2020, the Court ordered,

*7 (Doc. 314 at 2).

Defendants completely ignored the Order at 314. Instead, Defendants argue that they have evidence other than Mr. Jusic's declaration to show the Skunkguard.com website was operational in 2014. It is undisputed that at least with respect to GoDaddy's “partial production” these documents were in Defendants possession, custody, and control as of May 22, 2020. Under the MIDP, Defendants has a duty to affirmatively disclose them as soon as they received them. (Doc. 4 at 6 (“The duty to provide mandatory initial discovery responses set forth in this order is a continuing duty, and each party must serve supplemental responses when new or additional information is discovered or revealed.”)). This alone is a basis for precluding Mr. Jusic's testimony regarding the Skunkguard.com website.

Plaintiff also argue that Defendants assertion that they have “other evidence” that the Skunkguard.com website was operational in 2014 is false. (Doc. 328 at 5-6). First, Plaintiff claims that the “Wayback view” shows the Skunkguard.com website was operational in 2016, not 2014, and that Defendants and their counsel are knowingly and intentionally lying to the Court in representing the Wayback view shows 2014. Second, Plaintiff claims Defendants falsely represent that Exhibit M (Doc. 304-2, pp. 113-115) shows the website was operational in 2014. (Doc. 328 at 6). Plaintiff also argues that it has moved to strike this evidence for evidentiary reasons. (Id.) Next, Plaintiff argues Defendants mischaracterize the testimony of Plaintiff's employee Mr. Marquardt. (Id.)

B. Resolution

The MIDP requires:

(Doc. 4 at 7) (emphasis added).

When Defendants filed their initial mandatory discovery responses, they were required to disclose GoDaddy as the entity with possession, custody and control of the Skunkguard.com website. Those responses were due June 27, 2019. All of the discussion of whose fault it was that Plaintiff did not serve the subpoena sooner, or whether Defendants interfered with compliance, or whether GoDaddy rightly or wrongly delayed in responding is ultimately irrelevant. It was Defendants affirmative obligation to disclose both the existence of these documents, and the “facts” underlying their theory that the Skunkguard.com website was in use in 2014, with their initial MIDP responses.

Moreover, the Court finds that Defendants’ continued objections to the subpoena after the Court ruled it could be served were baseless. First, the Court agrees with Plaintiff that the fact that the subpoena was returning information that was not relevant to this case because Defendants commingled various websites is not a basis to oppose a subpoena after the Court approves it. If Defendants had this objection, they needed to raise it in their motion to quash. Further, the fact that discovery returns ultimately irrelevant documents is not a basis to oppose discovery of the relevant documents as well.

*8 Additionally, Defendants (unconfirmed) allegation that GoDaddy was producing discovery outside the scope of the subpoena may be a reason to seek litigation against GoDaddy, but it is not a basis to interfere with Plaintiff subpoena and block production of even the documents that undisputedly fell within the subpoena. Thus, Defendants’ bases for interfering with the subpoena are without merit.

Had Plaintiff been successful with its subpoena, Defendants might be able to argue that their initial-disclosure failures did not prejudice anyone. But for reasons that are attributable to Defendants, Plaintiff was denied discovery on this topic; a topic on which Defendants now offer evidence at summary judgment. It was Defendants’ affirmative obligation to disclose the existence evidence initially under the MIDP, and the actual evidence at least as of May 22, 2020. Defendants failed to do so. The motion to exclude will be granted. Defendants will be precluded from offering any evidence of sales via the Skunkguard.com website before March 2016 (when Plaintiff admits it received a disclosure of relevant supporting documentation). This preclusion includes sales on the website and sales stemming from an unidentified, hypothetical purchaser viewing the website and placing a telephone order. This preclusion further includes arguing the website was operational via any testimony of Defendants’ witnesses because Defendants cannot cure, by self-serving testimony, the absence of ESI evidence due to Defendants’ failure to disclose such evidence.

However, it appears that Plaintiff does not dispute that the Wayback exhibit, Exhibit M to Doc. 304, and Mr. Marquardt's testimony were all properly disclosed. Plaintiff merely takes issue with the content and meaning of these pieces of evidence. This exceeds the scope of a motion to preclude for non-disclosure as Plaintiff makes no argument of non-disclosure.[3]

4. Motion to Supplement

Because the Court will grant the motions to preclude, the Court will deny the motion to supplement as moot.

5. Summary Judgment Filings

As the Court has stated above, the Court does not know where in the summary judgment briefing the precluded evidence lies. Accordingly, the Court will make the parties re-file as specified below. In the re-filings, the prior page limits will control. Further, the Court will not permit any deviations from Local Rule 7.2(m). In the re-filings, Defendants cannot rely on any evidence precluded herein either in the filings themselves or the exhibits.

Conclusion

IT IS ORDERED that the Motion to Preclude the Lock N Load Summary (Doc.

*9 315) is granted as specified above.

IT IS FURTHER ORDERED that the Motion to Preclude the Alleged Sales to Vapor Delight and Seif Ascar declaration as it relates to Vapor Delight (Doc. 316) is granted as specified above.

IT IS FURTHER ORDERED that Motion to Preclude Evidence or Argument concerning the Skunkguard.com website prior to July 2015 (Doc. 317) is granted as specified above.

IT IS FURTHER ORDERED that the Motion to Supplement (Doc. 321) is denied as moot. The sealed, lodged response (Doc. 330) shall remain lodged under seal.

IT IS FURTHER ORDERED that the Motion to Seal (Doc. 277); the Motion for Partial Summary Judgment (Doc. 280) and the Motion to File Non-Electronic Exhibits (Doc. 289) remain pending.

IT IS FURTHER ORDERED that the response at Doc. 304 and reply at Doc. 320 are stricken. Defendants shall refile their response without any precluded evidence or argument within 7 days. Plaintiff shall refile its reply within 7 days of the response being filed.

IT IS FURTHER ORDERED that the related motions to seal (Docs. 307 and 308) are denied as moot without prejudice. The filings lodged under seal (Docs. 293, 294 and 305) shall remain lodged under seal.

IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (Doc. 281), the response (Doc. 291 and 302) and the reply (Doc. 322) are stricken. Defendants shall refile their motion within 14 days, the response is due in 7 days and the reply is due in 7 days. These re-filings shall not include any precluded evidence.

IT IS FURTHER ORDERED that the related motions to seal (Docs. 283 and 295) are denied as moot without prejudice. The filings lodged under seal (Docs. 282, 296, 297, 298, 299, and 300) shall remain lodged under seal.

Dated this 2nd day of September, 2020.