ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’/COUNTERCLAIM DEFENDANTS’ MOTION TO COMPEL DISCOVERY (DOC. 67)

*1 THIS MATTER is before the Court on Plaintiffs’/Counterclaim Defendants’ “Motion to Compel Discovery” filed November 25, 2019. Doc. 67. Defendants filed a Response on December 9, 2020. Doc. 69. Plaintiffs filed a Reply on December 18, 2019. Doc. 70. Having reviewed the parties’ submissions and the relevant law, the Court finds that Plaintiffs’ Motion is well taken in part and is GRANTED IN PART.

The background facts in this case were recently summarized in the January 3, 2020, Memorandum Opinion and Order, and therefore, will not be repeated in great detail here. See Doc. 75. Allegations relevant to this motion to compel include Plaintiffs’ theory of the case, which posits that Plaintiffs made a $350,000 investment in several of Defendants’ cordial business entities in exchange for the transfer of certain copyright and trademark rights, which did not go as planned. The copyright at issue is the “Royal Logo” that Defendant Mr. Rusch designed for the CORDIALS V.I.P. Drinks brand, which he has marketed in Europe since 2005.[1] Doc. 40 ¶¶ 11-18. The parties entered into agreements in May 2013 concerning Defendants’ cordials business in the United States, which included plans to reestablish the business from Florida to New Mexico. See id. ¶¶ 30-45, 57-58, 67-74. Defendants ultimately removed Plaintiff Mr. Strobel as CEO of one of the independent subsidiaries involved, and then Defendants registered the Royal Logo copyright in the United States (without Plaintiffs) on March 1, 2019. See id. ¶¶ 100-01 and Doc. 75 at 4. The parties allege a variety of tort and contract claims against each other.[2]

Plaintiffs claim that Defendants refused to assign their trademark and copyright interests according to the parties’ agreements, and that Defendants took unlawful control of the businesses, denying Plaintiffs’ access to critical business records and breaching fiduciary duties by seeking other business opportunities and engaging with other businesses that unlawfully competed with and/or caused harm to the cordial businesses that Defendants agreed to operate in partnership with Plaintiffs. See Doc. 67 at 4-5, Doc. 70 at 4-5, 8 & n.2. The parties’ briefs convey their vastly different perspectives about their agreements. More notably, however, is the acrimony displayed between the parties’ counsel. Specifically, the Court notes more than a dozen unnecessary vitriolic barbs from Defendants’ out-of-state counsel to Plaintiffs’ counsel, all of which fit the stonewalling Defendants appear to have engaged in as a discovery tactic.

*2 The Court will deny Plaintiffs’ request for sanctions at this stage of the litigation because the disputes are of the garden-variety type; however, the Court advises counsel, particularly Mr. Menhart, to forthwith confer in the spirit required by this Court's Local Rules, and the Federal Rules of Civil Procedure. See D.N.M.LR-CIV 7.1(a); Fed. R. Civ. P. 37(a)(1). Should counsel continue to engage in similarly obstructionist behaviors in the future, sanctions may very well issue.

Standard of Review Regarding Discovery

The proper scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). The factors that bear upon proportionality are: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. The Federal Rules of Evidence define relevant evidence as that which has “any tendency to make a fact more or less probable than it would be without the evidence,” where “the fact is of consequence in determining the action.” Fed. R. Evid. 401.

The scope of discovery under the federal rules is broad. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004) (“The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve full disclosure of all potentially relevant information.”). The federal discovery rules reflect the courts’ and Congress's recognition that mutual knowledge of all the relevant facts gathered by all parties is essential to proper litigation. Hickman v. Taylor, 329 U.S. 495, 507 (1947). As a result, Rule 26 “contemplates discovery into any matter that bears on or that reasonably could lead to other matter[s] that could bear on any issue that is or may be raised in a case.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 649 (D.N.M. 2007) (internal quotation marks omitted) (brackets in original). “[B]road discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.” Gomez, 50 F.3d at 1520 (internal quotation marks omitted).

When discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.

Johnson v. Kraft Foods N. Am., Inc. 237 F.R.D. 648, 653 (D. Kan. 2006). “Conversely, when the request is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.” Id.

While it is true that relevance in discovery is broader than that required for admissibility at trial, “the object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue.” Zenith Elec. Corp. v. Exzec, Inc., No. 93 C 5041, 1998 WL 9181, at *2 (N.D. Ill. Jan. 5, 1998) (unpublished) (internal quotation marks omitted). A district court, however, is not “required to permit [a party] to engage in a ‘fishing expedition’ in the hope of supporting his claim.” McGee v. Hayes, 2002 WL 1608456, 43 F. App'x 214, 217 (10th Cir. July 22, 2002); see Tottenham v. Trans World Gaming Corp., No. 00 Civ. 7697(WK), 2002 WL 1967023, at *2 (S.D.N.Y. June 21, 2002) (unpublished) (“Discovery, however, is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support.” (internal quotation marks omitted)); Hardrick v. Legal Servs. Corp., 96 F.R.D. 617, 618 (D.D.C. 1983) (noting that courts do, and should, remain “concerned about fishing expeditions, discovery abuse[,] and inordinate expense involved in overbroad and far-ranging discovery requests” (internal quotation marks omitted)).

Disputed Requests for Production of Documents, Interrogatories and General Discovery Objections

*3 Plaintiffs move to compel four Requests for Production (“RFP”) to Defendant Dr. Rusch (RFP Nos. 1-4), nine RFPs to Defendant Mr. Rusch (RFP Nos. 4-7, 11-12, 16, 19 and 20), and five Interrogatories to Defendant Mr. Rusch (Interrogatory Nos. 3, 6, 10, 13 and 16). Plaintiffs also take issue with general insufficiencies with Defendants’ discovery responses, including: (1) a lack of organization in violation of Rule 34(b)(2)(e)(i); (2) the failure to verify the discovery responses in violation of Rule 33(b)(5);[3] (3) the failure to distinguish which Plaintiff possessed certain documents already disclosed; and (4) a refusal to produce documents on the grounds that “Plaintiffs already possess them.” Plaintiffs also seek costs and fees in connection with their motion pursuant to Rule 37(a)(5).[4]

While Defendants strongly object to the discovery and sanctions Plaintiffs request, they cite no law in support of their position outside of the undisputed legal standards, relying instead upon broad accusations that Plaintiffs’ requests are “onerous ... irrelevant ... nitpicking ... incessant [and] completely disingenuous demands ... a fishing expedition ... a whim ... wildly overreaching ... frankly, completely absurd ... unrelated to this litigation ... [and] very, very difficult to take seriously.” See Doc. 69. The Court disagrees and finds Defendants’ characterizations of Plaintiffs’ requests overly flippant and disrespectful. The Court urges Defendants’ counsel to treat their discovery obligations in this District more seriously in the future.

The Court first considers Plaintiffs’ arguments about the general sufficiency of Defendants’ discovery responses.

Defendants’ Lack of Organization in Violation of Rule 34(b)(2)(E)(i)

The parties disagree about documents Defendants produced, as well as documents they did not produce. At issue with produced documents is the degree to which Defendants organized, or failed to organize as Plaintiffs allege, their disclosures. Plaintiffs describe the 1400 pages they received as an impermissible “document dump” because Defendants neglected to indicate which documents were responsive to which requests, or otherwise organize or label their disclosures in any manner. According to Plaintiffs, one of the problems with the mass cluster of disclosures is that Plaintiffs are unable to determine which Defendant retained (or produced) each record, which may be critical to determining which person rightly retains the ownership or use of the contested trademark and copyright.

*4 Plaintiffs served separate sets of written interrogatories and RFPs on each of the two Defendants, placing importance on the distinction because Defendants assert that “Dr. Rusch is the owner of the trademark rights registration at issue here,” a claim the parties apparently still debate.[5] Defendants assert that Mr. Rusch has the “sole ownership in the copyright of the design logo” at issue, and that he registered the international trademark, but later transferred ownership of the trademark to his wife, Dr. Rusch. Doc. 40 ¶¶ 11-14, 24-25. He also granted his wife “a non-exclusive license to ... use the Royal Logo copyright ....” Id. ¶ 21. Because trademark and copyright ownerships and rights are critical to both parties’ claims, the Court finds that precisely which Defendant kept or possessed which records could be relevant to the parties’ many tort and contract claims. The Court orders Defendants to forthwith indicate which Defendant possessed documents previously (and subsequently) disclosed, or if possession of such material was jointly held. This discovery disclosure obligation is set forth more fully below.

Next, Plaintiffs argue that Defendants should have either produced their records as maintained in the usual course of business, or in a manner that indicated the discovery requests to which the documents were responsive. Doc. 67 at 17. Instead, Plaintiffs received 1400 pages, with Bates Stamps, but otherwise uncategorized or labeled. Defendants’ response brief makes some effort to match Bates Stamps with categories of discovery requests. Defendants also state that Plaintiffs requested that Defendants Bates Stamp their documents, and that is precisely what Defendants did, so Plaintiffs should not be permitted to complain about the very manner of production they requested. Doc. 69 at 13.

The Court looks to the text of the applicable federal rule, which states that documents must be produced “as they are kept in the usual course of business.” Fed. R. Civ. P. 34(b)(2)(E)(i). Alternatively, parties “must organize and label them to correspond to the categories in the request.” Id.; see Valeo Electrical Systems, Inc. v. Cleveland Die & Mfg. Co., No. 08-cv-12486, 2009 WL 1803216 at *2 (E.D. Mich. 2009) (“A party demonstrates that it has produced documents in the usual course by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files. A party produces emails in the usual course when it arranges the responsive emails by custodian, in chronological order and with attachments, if any.”) (internal citations omitted); see also Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 541 (D. Kan. 2006) (producing party failed to carry its burden of demonstrating that documents were produced as they were maintained where production provided no information regarding where the documents were maintained, the identity of the custodian, and whether they were from a single source or multiple sources of files); MGA Entm't, Inc. v. Nat'l Prod. Ltd., No. CV 10-07083 JAK(SSX), 2012 WL 12884021, at *4 (C.D. Cal. Jan. 20, 2012) (“If a party claims that documents were kept in the usual course of business, however, it bears the burden of demonstrating that fact.”).

Defendants have not argued, nor have they presented evidence suggesting, that they produced the documents as kept in the usual course of business.[6] See Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 334 (N.D.N.Y.2008) (citations omitted) (noting that a party selecting to produce documents as they are maintained in the usual course of business “bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate.”). Therefore, Defendants were required to organize and label the documents to correspond to each request. Defendants have not done so. Because the documents have already been provided, within twenty (20) days of this Order, each Defendant shall serve amended discovery responses identifying the Bates Stamps that are responsive to each discovery request. If a Defendant does not have any documents responsive to a request, that Defendant shall provide a sworn statement that despite a diligent search, no responsive documents were found. Alternatively, if documents have been produced in response to a request, each Defendant shall provide a sworn statement that after a diligent search, all responsive documents have been produced. See Vazquez–Fernandez v. Cambridge College, Inc., 269 F.R.D. 150, 154 (D.P.R. 2010) (supplemental response to request for production, which stated that all documents had been produced, was “an answer” that required signature under oath by party); accord In re Mentor Corp. Obtape Transobturator Sling Prods. Liability Litig., No. 4:08-MD-2004, 2009 WL 152495, at *2 (M.D. Ga. Jan. 22, 2009) (“It is clear, however, that simply producing a mass of documents with the assurance that they are produced in the same manner as they are kept in the ordinary course of business does not automatically satisfy a party's obligation under Rule 34(b)(2)(E)(i).”). This resolution should moot the problem Plaintiffs identified regarding Defendants’ failure to indicate which Defendant maintained possession or control of each document.

Defendants’ Refusal To Produce Documents That Plaintiffs Already Possess

*5 There appear to be two types of documents that Defendants refuse to produce on grounds that Plaintiffs already have them. The first are documents that Defendants claim Plaintiffs are “withholding” from Defendants in violation of Plaintiffs’ fiduciary duties. Doc. 69 at 9. Those include financial documents that Plaintiff Mr. Strobel has allegedly maintained on his personal laptop, to which Defendants claim they do not have access. Doc. 69 at 8. Defendants state that “even if they could produce these materials,” they have not done so because Plaintiffs would already have them. Id. at 9. The other type of documents that Defendants refuse to produce include those they believe Plaintiffs must have access to because Plaintiff Strobel managed the accounting and finances for two of the affiliates at issue. Id. at 3. However, Plaintiffs allege “that since April 2018 [they] have not had access to information about the cordial beverage business conducted through UNM-NM or V.I.P Drinks Bottling, LLC,” i.e., two of the primary entities at the heart of this dispute. Defendants also balk at Plaintiffs’ request for banking information because the Strobel parties “have equal access to the banking information for the entities for which they were members and therefore, they can access the banking information as easily as Defendants.” Doc. 69 at 10.[7] At the same time, Defendants assert they “have provided the information in their possession that was responsive to the requests.” Id. It is, therefore, somewhat unclear whether Defendants have documents they are not producing because they believe Plaintiffs already have them or have equal or easier access to those documents than Defendants.

Because Defendants repeatedly state they are not obliged to produce such records, the Court will disabuse them of that notion and order Defendants to produce all responsive documents in their possession or control, regardless of whether they believe Plaintiffs already have them or that Plaintiffs can access them as easily or more readily than Defendants. The fact that Plaintiffs may already have some of the documents they are seeking does not relieve Defendants of their discovery obligations. See Cook v. Rockwell Int'l Corp., 161 F.R.D. 103, 104 (D. Colo. 1995) (“The fact that the moving party is already in possession of documents it seeks to obtain by inspection, is not necessarily a sufficient reason for denying discovery”); Gomez v. Tyson Foods, Inc., No. 8:08CV21, 2012 WL 3111897, *4 (D. Neb. July 31, 2012) (“a party is required to produce documents in its possession, custody or control, regardless of whether it believes the requesting party already has those documents”); Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal.1996) (“[Defendant] is required to produce documents he has in his possession, custody or control, regardless of whether he believes plaintiff already has those documents.”); Fort Washington Resources, Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa.1994) (“[I]t is not a bar to the discovery of relevant material that the same material may be in the possession of the requesting party or obtainable from another source.”); DuFour v. City of Las Vegas, No. CIV. 09-0802 JB/LFG, 2010 WL 965951, at *1 (D.N.M. Jan. 28, 2010) (“The Court also orders that, although Defendants may already be in possession of documents responsive to the requests for production, DuFour must still produce all documents in his possession, custody, or control, which fall within the scope of the requests.”); see also 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2014 (3d ed. 2019) (“the purpose of the discovery rules is not only to elicit unknown facts, but also to narrow and define the issues, and for this purpose it is often necessary to use discovery about known facts.”). The Court will not parse through all the subsets of documents the parties argue about possessing, and instead orders Defendants to produce all requested, responsive documents forthwith in the manner set forth above regardless of whether they believe Plaintiffs have those documents, or access to those documents.

RFPs and Interrogatories

Next, the Court considers the specific discovery requests raised in Plaintiffs’ motion to compel, which the parties categorize into three types: (1) documents related to Defendants’ dealings with others in the beverage industry; (2) documents related to the finances and business formation of cordial businesses that may support either party's claims; and (3) communications and identifying information related to the formation of various cordial businesses. See Doc. 67 at 5 and 16, Doc. 69 at 13-14. Some of Defendants’ objections to the specific discovery requests at issue overlap with the general objections resolved above. To the extent there are remaining objections from Defendants, the Court will examine them according to the following categories:

Documents Related to Defendants’ Dealings with Others in the Beverage Industry

*6 This category incorporates Plaintiffs’ RFP No. 4 to Defendant Mr. Rusch (corporate records for competing beverage businesses in which Defendants have invested or are entitled to royalty or license fees), No. 6 (evidence of beverage sales for those entities disclosed in RFP No. 4) and No. 20 (bank records for Defendants’ cordial businesses). Defendants incorrectly conclude their cordial business dealings with others “are unrelated to the disputed intellectual property rights at issue in this dispute.” Doc. 69 at 8. The Court has already explained that because Plaintiffs allege that all such competing businesses in which Defendants invested or benefitted financially (via royalties or license fees) impact the merits of Plaintiffs’ claims, as well as their damages, this discovery is relevant. Therefore, the Court finds these discovery requests are valid, and orders Defendants to provide responsive documents within twenty (20) days of this Order.

Documents Related to the Finances and Business Formation of Cordial Businesses

This category includes Plaintiff's RFP No. 5 to Defendant Mr. Rusch (beverage sales), No. 7 (licensing agreements),[8] No. 11 (communications with Victor O. Mejia),8 Nos. 12 and 16 (formation, operation and finances for Empire Spirits GmbH),[9] and No. 19 (bank records for any affiliated companies).8 Many of Defendants’ objections in this category are resolved by the Court's other rulings herein, i.e., documents already in Plaintiffs’ possession (see supra) and the relevancy of “other” cordial businesses in which Defendants invested or otherwise benefitted financially (see infra). Defendants’ recent identification of certain Bates Stamps responsive to these areas of discovery (see Doc. 69 at 9-10) should also be helpful to Plaintiffs and should have accompanied Defendants’ original productions.

Communications and Identifying Information Related to the Formation of Cordial Businesses

This category includes Plaintiffs’ Interrogatory Nos. 3, 6, 10, 13 and 16 to Defendant Mr. Rusch, as well as Plaintiffs’ RFP Nos. 1-4 to Defendant Dr. Rusch.

In response to the Interrogatory requests, Defendant Mr. Rusch provided some relevant names but refused to provide requested contact information.[10] Regarding Interrogatory Nos. 13 and 16, Defendant Mr. Rusch also objected to these requests as overbroad, irrelevant and unduly burdensome. The Court finds that Defendants take an overly narrow view toward relevancy, proportionality and the applicable timeline in this case. As noted above, Plaintiffs’ allegations broadly accuse Defendants of breaching their fiduciary duties by engaging in competing cordial businesses with other individuals and entities in violation of the parties’ agreements, rendering such discovery requests valid. Contrary to Defendants’ position, this case is not “narrowly focused on the rights of the parties related to the UNC-NM entities” (Doc. 69 at 6), because Plaintiffs allege that Defendants’ cordial business dealings with third-parties directly impacts Plaintiffs’ damages and goes to the heart of any breach of fiduciary obligations Defendants may have owed to Plaintiffs. Moreover, the party's negotiations with each other began in 2013. Therefore, the Court finds that Plaintiffs’ requests in this category are relevant and proportional to the claims herein, and five years is a reasonable timeframe limiting these requests.

*7 Finally, with respect to disputed document requests to Defendant Dr. Rusch (her RFP Nos. 1-4), most of the objections are resolved with the Court's order regarding the manner of production required by Defendants. In their response brief, Defendants have also designated certain Bates Stamps associated with Defendant Dr. Rusch's trademark involvement and communications concerning the trademark, including her correspondence with governmental entities. See Doc. 69 at 2. The Court has also overruled Defendants’ objections based on documents already in Plaintiffs’ possession, which was another aspect of Defendant Dr. Rusch's refusal to produce documents responsive to RFP Nos. 1-4. Accordingly, Defendants shall also produce documents responsive to these four document requests to Defendant Dr. Rusch to the extent any such materials remain outstanding.

CONCLUSION

For all of the foregoing reasons, the Court finds that Plaintiffs’/Counterclaim Defendants’ Motion is well taken in part and GRANTS the motion regarding Defendants’ obligation to respond to the existing discovery requests. Plaintiffs’ motion is denied with respect to their request for costs and fees.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion (Doc. 67) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Defendants produce the documents as described herein within twenty (20) calendar days.

Footnotes

[1]

Defendants characterize the primary legal issue as “which party has the right to use the trademark and copyright for “Cordials V.I.P.” Doc. 69 at 12.

[2]

Defendants asserted 22 affirmative defenses and 14 counterclaims against Plaintiffs. Doc. 40. The Court struck five affirmative defenses and dismissed six counterclaims (Doc. 75), despite Defendants’ accusation that “most experienced counsel would forego” such filings (see Doc. 69). Defendants’ Motion to Amend the Answer/Counterclaims is pending. Doc. 79.

[3]

Defendants are ordered to verify their discovery forthwith; this issue warrants no further attention from the Court. Fed. R. Civ. P. 33(b)(5).

[4]

Plaintiffs do not specifically raise Defendants’ reliance on boilerplate objections, but the Court admonishes Defendants from using such blanket assertions, which are replete in their objections. Cf. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (the party resisting discovery “must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive”). Generalized objections that a discovery request is vague, overly broad or unduly burdensome are not acceptable and should be overruled. American Rock Salt Co., LLC v. Norfolk Southern Corp., 228 F.R.D. 426, 432 (W.D.N.Y. 2004); Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190-91 (D.D.C. 1998) (holding that general boilerplate objections are ineffective); NNJ Dev., LLC v. Duty Free World, Inc., No. CV 08-535 MV/RLP, 2009 WL 10670917, at *2 (D.N.M. July 28, 2009); Oleson v. K-mart Corp., 175 F.R.D. 570, 571 (D. Kan. 1997) (“The objecting party has the burden to substantiate its objections.... [and] must specifically show how each discovery request is overly broad, burdensome or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”) (citations omitted). A proper objection is one that is tailored to the individual discovery request, not a conclusory objection such as “vague,” “ambiguous,” “overly broad” or “unduly burdensome” which neglects to say why the discovery request is subject to that objection.

[5]

This Court previously took judicial notice of the trademark's registration record that reflects ownership by Dr. Rusch, and the copyright's registration record reflecting ownership by Mr. Rusch. Doc. 75 at 8 & n.3 (citing Doc. 40-1).

[6]

Defendants do state that certain English translations of German documents were provided “in separate files, as they were kept,” (Doc. 69 at 13); however, Plaintiffs’ representation, and Defendants own admission, belies that such production occurred regarding all 1400 pages of documents Defendants produced (see Doc. 70 at 3 (noting scattered nature of documents Defendants produced as admitted in their response brief), Doc. 67 at 6, 18-19 (describing manner of production)).

[7]

Defendants do not address limitations on Plaintiffs’ access to banking records since Defendants unilaterally removed Mr. Strobel from his position as CEO.

[8]

By identifying the Bates Stamps that correspond to this discovery request, Defendants may have satisfied RFP Nos. 7, 11 and 19. Doc. 69 at 9-10. To the extent any remaining responsive documents exist, Defendants shall produce them forthwith.

[9]

Defendant Mr. Rusch's assertion that his company Empire Spirits GmbH is not manufacturing, selling or distributing cordials “at this time,” does not relieve him of the obligation to produce documents responsive to Plaintiffs’ requests. See Doc. 69 at 10.

[10]

Defendants incorrectly state that Plaintiffs made “no request for contact information in the interrogator[ies]” because Plaintiffs expressly requested that information in their Interrogatory instructions at Doc. 67-4 pp. 3-4.

Strobel v. Rusch

Citation: 2020 WL 8079786 (D.N.M. 2020)

Summary: The court ordered Defendants to produce documents related to ESI, including documents related to Defendants' dealings with others in the beverage industry, documents related to the finances and business formation of cordial businesses, and communications and identifying information related to the formation of various cordial businesses. The court also ordered Defendants to verify their discovery forthwith and to produce any remaining responsive documents, as well as to identify the Bates Stamps that correspond to the discovery request.

Court: United States District Court, D. New Mexico

Date decided: January 23, 2020

Judge: Robbenhaar, John F.

VOLKER STROBEL, et al., Plaintiffs, v. UWE RUSCH, et al., Defendants Civ. No. 18-656 RB/JFR United States District Court, D. New Mexico Filed January 23, 2020 Counsel Jeffrey L. Squires, Peacock Law P.C., Albuquerque, NM, for Plaintiffs. Eric James Menhart, Lexero Law, Washington, DC, for Defendants. Uwe Rusch, Cape Coral, FL, pro se. Mabel Rusch, Cape Coral, FL, pro se. Robbenhaar, John F., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’/COUNTERCLAIM DEFENDANTS’ MOTION TO COMPEL DISCOVERY (DOC. 67) *1 THIS MATTER is before the Court on Plaintiffs’/Counterclaim Defendants’ “Motion to Compel Discovery” filed November 25, 2019. Doc. 67. Defendants filed a Response on December 9, 2020. Doc. 69. Plaintiffs filed a Reply on December 18, 2019. Doc. 70. Having reviewed the parties’ submissions and the relevant law, the Court finds that Plaintiffs’ Motion is well taken in part and is GRANTED IN PART. The background facts in this case were recently summarized in the January 3, 2020, Memorandum Opinion and Order, and therefore, will not be repeated in great detail here. See Doc. 75. Allegations relevant to this motion to compel include Plaintiffs’ theory of the case, which posits that Plaintiffs made a $350,000 investment in several of Defendants’ cordial business entities in exchange for the transfer of certain copyright and trademark rights, which did not go as planned. The copyright at issue is the “Royal Logo” that Defendant Mr. Rusch designed for the CORDIALS V.I.P. Drinks brand, which he has marketed in Europe since 2005.[1] Doc. 40 ¶¶ 11-18. The parties entered into agreements in May 2013 concerning Defendants’ cordials business in the United States, which included plans to reestablish the business from Florida to New Mexico. See id. ¶¶ 30-45, 57-58, 67-74. Defendants ultimately removed Plaintiff Mr. Strobel as CEO of one of the independent subsidiaries involved, and then Defendants registered the Royal Logo copyright in the United States (without Plaintiffs) on March 1, 2019. See id. ¶¶ 100-01 and Doc. 75 at 4. The parties allege a variety of tort and contract claims against each other.[2] Plaintiffs claim that Defendants refused to assign their trademark and copyright interests according to the parties’ agreements, and that Defendants took unlawful control of the businesses, denying Plaintiffs’ access to critical business records and breaching fiduciary duties by seeking other business opportunities and engaging with other businesses that unlawfully competed with and/or caused harm to the cordial businesses that Defendants agreed to operate in partnership with Plaintiffs. See Doc. 67 at 4-5, Doc. 70 at 4-5, 8 & n.2. The parties’ briefs convey their vastly different perspectives about their agreements. More notably, however, is the acrimony displayed between the parties’ counsel. Specifically, the Court notes more than a dozen unnecessary vitriolic barbs from Defendants’ out-of-state counsel to Plaintiffs’ counsel, all of which fit the stonewalling Defendants appear to have engaged in as a discovery tactic. *2 The Court will deny Plaintiffs’ request for sanctions at this stage of the litigation because the disputes are of the garden-variety type; however, the Court advises counsel, particularly Mr. Menhart, to forthwith confer in the spirit required by this Court's Local Rules, and the Federal Rules of Civil Procedure. See D.N.M.LR-CIV 7.1(a); Fed. R. Civ. P. 37(a)(1). Should counsel continue to engage in similarly obstructionist behaviors in the future, sanctions may very well issue. Standard of Review Regarding Discovery The proper scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). The factors that bear upon proportionality are: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. The Federal Rules of Evidence define relevant evidence as that which has “any tendency to make a fact more or less probable than it would be without the evidence,” where “the fact is of consequence in determining the action.” Fed. R. Evid. 401. The scope of discovery under the federal rules is broad. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004) (“The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve full disclosure of all potentially relevant information.”). The federal discovery rules reflect the courts’ and Congress's recognition that mutual knowledge of all the relevant facts gathered by all parties is essential to proper litigation. Hickman v. Taylor, 329 U.S. 495, 507 (1947). As a result, Rule 26 “contemplates discovery into any matter that bears on or that reasonably could lead to other matter[s] that could bear on any issue that is or may be raised in a case.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 649 (D.N.M. 2007) (internal quotation marks omitted) (brackets in original). “[B]road discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.” Gomez, 50 F.3d at 1520 (internal quotation marks omitted). When discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Johnson v. Kraft Foods N. Am., Inc. 237 F.R.D. 648, 653 (D. Kan. 2006). “Conversely, when the request is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.” Id. While it is true that relevance in discovery is broader than that required for admissibility at trial, “the object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue.” Zenith Elec. Corp. v. Exzec, Inc., No. 93 C 5041, 1998 WL 9181, at *2 (N.D. Ill. Jan. 5, 1998) (unpublished) (internal quotation marks omitted). A district court, however, is not “required to permit [a party] to engage in a ‘fishing expedition’ in the hope of supporting his claim.” McGee v. Hayes, 2002 WL 1608456, 43 F. App'x 214, 217 (10th Cir. July 22, 2002); see Tottenham v. Trans World Gaming Corp., No. 00 Civ. 7697(WK), 2002 WL 1967023, at *2 (S.D.N.Y. June 21, 2002) (unpublished) (“Discovery, however, is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support.” (internal quotation marks omitted)); Hardrick v. Legal Servs. Corp., 96 F.R.D. 617, 618 (D.D.C. 1983) (noting that courts do, and should, remain “concerned about fishing expeditions, discovery abuse[,] and inordinate expense involved in overbroad and far-ranging discovery requests” (internal quotation marks omitted)). Disputed Requests for Production of Documents, Interrogatories and General Discovery Objections *3 Plaintiffs move to compel four Requests for Production (“RFP”) to Defendant Dr. Rusch (RFP Nos. 1-4), nine RFPs to Defendant Mr. Rusch (RFP Nos. 4-7, 11-12, 16, 19 and 20), and five Interrogatories to Defendant Mr. Rusch (Interrogatory Nos. 3, 6, 10, 13 and 16). Plaintiffs also take issue with general insufficiencies with Defendants’ discovery responses, including: (1) a lack of organization in violation of Rule 34(b)(2)(e)(i); (2) the failure to verify the discovery responses in violation of Rule 33(b)(5);[3] (3) the failure to distinguish which Plaintiff possessed certain documents already disclosed; and (4) a refusal to produce documents on the grounds that “Plaintiffs already possess them.” Plaintiffs also seek costs and fees in connection with their motion pursuant to Rule 37(a)(5).[4] While Defendants strongly object to the discovery and sanctions Plaintiffs request, they cite no law in support of their position outside of the undisputed legal standards, relying instead upon broad accusations that Plaintiffs’ requests are “onerous ... irrelevant ... nitpicking ... incessant [and] completely disingenuous demands ... a fishing expedition ... a whim ... wildly overreaching ... frankly, completely absurd ... unrelated to this litigation ... [and] very, very difficult to take seriously.” See Doc. 69. The Court disagrees and finds Defendants’ characterizations of Plaintiffs’ requests overly flippant and disrespectful. The Court urges Defendants’ counsel to treat their discovery obligations in this District more seriously in the future. The Court first considers Plaintiffs’ arguments about the general sufficiency of Defendants’ discovery responses. Defendants’ Lack of Organization in Violation of Rule 34(b)(2)(E)(i) The parties disagree about documents Defendants produced, as well as documents they did not produce. At issue with produced documents is the degree to which Defendants organized, or failed to organize as Plaintiffs allege, their disclosures. Plaintiffs describe the 1400 pages they received as an impermissible “document dump” because Defendants neglected to indicate which documents were responsive to which requests, or otherwise organize or label their disclosures in any manner. According to Plaintiffs, one of the problems with the mass cluster of disclosures is that Plaintiffs are unable to determine which Defendant retained (or produced) each record, which may be critical to determining which person rightly retains the ownership or use of the contested trademark and copyright. *4 Plaintiffs served separate sets of written interrogatories and RFPs on each of the two Defendants, placing importance on the distinction because Defendants assert that “Dr. Rusch is the owner of the trademark rights registration at issue here,” a claim the parties apparently still debate.[5] Defendants assert that Mr. Rusch has the “sole ownership in the copyright of the design logo” at issue, and that he registered the international trademark, but later transferred ownership of the trademark to his wife, Dr. Rusch. Doc. 40 ¶¶ 11-14, 24-25. He also granted his wife “a non-exclusive license to ... use the Royal Logo copyright ....” Id. ¶ 21. Because trademark and copyright ownerships and rights are critical to both parties’ claims, the Court finds that precisely which Defendant kept or possessed which records could be relevant to the parties’ many tort and contract claims. The Court orders Defendants to forthwith indicate which Defendant possessed documents previously (and subsequently) disclosed, or if possession of such material was jointly held. This discovery disclosure obligation is set forth more fully below. Next, Plaintiffs argue that Defendants should have either produced their records as maintained in the usual course of business, or in a manner that indicated the discovery requests to which the documents were responsive. Doc. 67 at 17. Instead, Plaintiffs received 1400 pages, with Bates Stamps, but otherwise uncategorized or labeled. Defendants’ response brief makes some effort to match Bates Stamps with categories of discovery requests. Defendants also state that Plaintiffs requested that Defendants Bates Stamp their documents, and that is precisely what Defendants did, so Plaintiffs should not be permitted to complain about the very manner of production they requested. Doc. 69 at 13. The Court looks to the text of the applicable federal rule, which states that documents must be produced “as they are kept in the usual course of business.” Fed. R. Civ. P. 34(b)(2)(E)(i). Alternatively, parties “must organize and label them to correspond to the categories in the request.” Id.; see Valeo Electrical Systems, Inc. v. Cleveland Die & Mfg. Co., No. 08-cv-12486, 2009 WL 1803216 at *2 (E.D. Mich. 2009) (“A party demonstrates that it has produced documents in the usual course by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files. A party produces emails in the usual course when it arranges the responsive emails by custodian, in chronological order and with attachments, if any.”) (internal citations omitted); see also Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 541 (D. Kan. 2006) (producing party failed to carry its burden of demonstrating that documents were produced as they were maintained where production provided no information regarding where the documents were maintained, the identity of the custodian, and whether they were from a single source or multiple sources of files); MGA Entm't, Inc. v. Nat'l Prod. Ltd., No. CV 10-07083 JAK(SSX), 2012 WL 12884021, at *4 (C.D. Cal. Jan. 20, 2012) (“If a party claims that documents were kept in the usual course of business, however, it bears the burden of demonstrating that fact.”). Defendants have not argued, nor have they presented evidence suggesting, that they produced the documents as kept in the usual course of business.[6] See Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 334 (N.D.N.Y.2008) (citations omitted) (noting that a party selecting to produce documents as they are maintained in the usual course of business “bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate.”). Therefore, Defendants were required to organize and label the documents to correspond to each request. Defendants have not done so. Because the documents have already been provided, within twenty (20) days of this Order, each Defendant shall serve amended discovery responses identifying the Bates Stamps that are responsive to each discovery request. If a Defendant does not have any documents responsive to a request, that Defendant shall provide a sworn statement that despite a diligent search, no responsive documents were found. Alternatively, if documents have been produced in response to a request, each Defendant shall provide a sworn statement that after a diligent search, all responsive documents have been produced. See Vazquez–Fernandez v. Cambridge College, Inc., 269 F.R.D. 150, 154 (D.P.R. 2010) (supplemental response to request for production, which stated that all documents had been produced, was “an answer” that required signature under oath by party); accord In re Mentor Corp. Obtape Transobturator Sling Prods. Liability Litig., No. 4:08-MD-2004, 2009 WL 152495, at *2 (M.D. Ga. Jan. 22, 2009) (“It is clear, however, that simply producing a mass of documents with the assurance that they are produced in the same manner as they are kept in the ordinary course of business does not automatically satisfy a party's obligation under Rule 34(b)(2)(E)(i).”). This resolution should moot the problem Plaintiffs identified regarding Defendants’ failure to indicate which Defendant maintained possession or control of each document. Defendants’ Refusal To Produce Documents That Plaintiffs Already Possess *5 There appear to be two types of documents that Defendants refuse to produce on grounds that Plaintiffs already have them. The first are documents that Defendants claim Plaintiffs are “withholding” from Defendants in violation of Plaintiffs’ fiduciary duties. Doc. 69 at 9. Those include financial documents that Plaintiff Mr. Strobel has allegedly maintained on his personal laptop, to which Defendants claim they do not have access. Doc. 69 at 8. Defendants state that “even if they could produce these materials,” they have not done so because Plaintiffs would already have them. Id. at 9. The other type of documents that Defendants refuse to produce include those they believe Plaintiffs must have access to because Plaintiff Strobel managed the accounting and finances for two of the affiliates at issue. Id. at 3. However, Plaintiffs allege “that since April 2018 [they] have not had access to information about the cordial beverage business conducted through UNM-NM or V.I.P Drinks Bottling, LLC,” i.e., two of the primary entities at the heart of this dispute. Defendants also balk at Plaintiffs’ request for banking information because the Strobel parties “have equal access to the banking information for the entities for which they were members and therefore, they can access the banking information as easily as Defendants.” Doc. 69 at 10.[7] At the same time, Defendants assert they “have provided the information in their possession that was responsive to the requests.” Id. It is, therefore, somewhat unclear whether Defendants have documents they are not producing because they believe Plaintiffs already have them or have equal or easier access to those documents than Defendants. Because Defendants repeatedly state they are not obliged to produce such records, the Court will disabuse them of that notion and order Defendants to produce all responsive documents in their possession or control, regardless of whether they believe Plaintiffs already have them or that Plaintiffs can access them as easily or more readily than Defendants. The fact that Plaintiffs may already have some of the documents they are seeking does not relieve Defendants of their discovery obligations. See Cook v. Rockwell Int'l Corp., 161 F.R.D. 103, 104 (D. Colo. 1995) (“The fact that the moving party is already in possession of documents it seeks to obtain by inspection, is not necessarily a sufficient reason for denying discovery”); Gomez v. Tyson Foods, Inc., No. 8:08CV21, 2012 WL 3111897, *4 (D. Neb. July 31, 2012) (“a party is required to produce documents in its possession, custody or control, regardless of whether it believes the requesting party already has those documents”); Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal.1996) (“[Defendant] is required to produce documents he has in his possession, custody or control, regardless of whether he believes plaintiff already has those documents.”); Fort Washington Resources, Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa.1994) (“[I]t is not a bar to the discovery of relevant material that the same material may be in the possession of the requesting party or obtainable from another source.”); DuFour v. City of Las Vegas, No. CIV. 09-0802 JB/LFG, 2010 WL 965951, at *1 (D.N.M. Jan. 28, 2010) (“The Court also orders that, although Defendants may already be in possession of documents responsive to the requests for production, DuFour must still produce all documents in his possession, custody, or control, which fall within the scope of the requests.”); see also 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2014 (3d ed. 2019) (“the purpose of the discovery rules is not only to elicit unknown facts, but also to narrow and define the issues, and for this purpose it is often necessary to use discovery about known facts.”). The Court will not parse through all the subsets of documents the parties argue about possessing, and instead orders Defendants to produce all requested, responsive documents forthwith in the manner set forth above regardless of whether they believe Plaintiffs have those documents, or access to those documents. RFPs and Interrogatories Next, the Court considers the specific discovery requests raised in Plaintiffs’ motion to compel, which the parties categorize into three types: (1) documents related to Defendants’ dealings with others in the beverage industry; (2) documents related to the finances and business formation of cordial businesses that may support either party's claims; and (3) communications and identifying information related to the formation of various cordial businesses. See Doc. 67 at 5 and 16, Doc. 69 at 13-14. Some of Defendants’ objections to the specific discovery requests at issue overlap with the general objections resolved above. To the extent there are remaining objections from Defendants, the Court will examine them according to the following categories: Documents Related to Defendants’ Dealings with Others in the Beverage Industry *6 This category incorporates Plaintiffs’ RFP No. 4 to Defendant Mr. Rusch (corporate records for competing beverage businesses in which Defendants have invested or are entitled to royalty or license fees), No. 6 (evidence of beverage sales for those entities disclosed in RFP No. 4) and No. 20 (bank records for Defendants’ cordial businesses). Defendants incorrectly conclude their cordial business dealings with others “are unrelated to the disputed intellectual property rights at issue in this dispute.” Doc. 69 at 8. The Court has already explained that because Plaintiffs allege that all such competing businesses in which Defendants invested or benefitted financially (via royalties or license fees) impact the merits of Plaintiffs’ claims, as well as their damages, this discovery is relevant. Therefore, the Court finds these discovery requests are valid, and orders Defendants to provide responsive documents within twenty (20) days of this Order. Documents Related to the Finances and Business Formation of Cordial Businesses This category includes Plaintiff's RFP No. 5 to Defendant Mr. Rusch (beverage sales), No. 7 (licensing agreements),[8] No. 11 (communications with Victor O. Mejia),8 Nos. 12 and 16 (formation, operation and finances for Empire Spirits GmbH),[9] and No. 19 (bank records for any affiliated companies).8 Many of Defendants’ objections in this category are resolved by the Court's other rulings herein, i.e., documents already in Plaintiffs’ possession (see supra) and the relevancy of “other” cordial businesses in which Defendants invested or otherwise benefitted financially (see infra). Defendants’ recent identification of certain Bates Stamps responsive to these areas of discovery (see Doc. 69 at 9-10) should also be helpful to Plaintiffs and should have accompanied Defendants’ original productions. Communications and Identifying Information Related to the Formation of Cordial Businesses This category includes Plaintiffs’ Interrogatory Nos. 3, 6, 10, 13 and 16 to Defendant Mr. Rusch, as well as Plaintiffs’ RFP Nos. 1-4 to Defendant Dr. Rusch. In response to the Interrogatory requests, Defendant Mr. Rusch provided some relevant names but refused to provide requested contact information.[10] Regarding Interrogatory Nos. 13 and 16, Defendant Mr. Rusch also objected to these requests as overbroad, irrelevant and unduly burdensome. The Court finds that Defendants take an overly narrow view toward relevancy, proportionality and the applicable timeline in this case. As noted above, Plaintiffs’ allegations broadly accuse Defendants of breaching their fiduciary duties by engaging in competing cordial businesses with other individuals and entities in violation of the parties’ agreements, rendering such discovery requests valid. Contrary to Defendants’ position, this case is not “narrowly focused on the rights of the parties related to the UNC-NM entities” (Doc. 69 at 6), because Plaintiffs allege that Defendants’ cordial business dealings with third-parties directly impacts Plaintiffs’ damages and goes to the heart of any breach of fiduciary obligations Defendants may have owed to Plaintiffs. Moreover, the party's negotiations with each other began in 2013. Therefore, the Court finds that Plaintiffs’ requests in this category are relevant and proportional to the claims herein, and five years is a reasonable timeframe limiting these requests. *7 Finally, with respect to disputed document requests to Defendant Dr. Rusch (her RFP Nos. 1-4), most of the objections are resolved with the Court's order regarding the manner of production required by Defendants. In their response brief, Defendants have also designated certain Bates Stamps associated with Defendant Dr. Rusch's trademark involvement and communications concerning the trademark, including her correspondence with governmental entities. See Doc. 69 at 2. The Court has also overruled Defendants’ objections based on documents already in Plaintiffs’ possession, which was another aspect of Defendant Dr. Rusch's refusal to produce documents responsive to RFP Nos. 1-4. Accordingly, Defendants shall also produce documents responsive to these four document requests to Defendant Dr. Rusch to the extent any such materials remain outstanding. CONCLUSION For all of the foregoing reasons, the Court finds that Plaintiffs’/Counterclaim Defendants’ Motion is well taken in part and GRANTS the motion regarding Defendants’ obligation to respond to the existing discovery requests. Plaintiffs’ motion is denied with respect to their request for costs and fees. IT IS THEREFORE ORDERED that Plaintiffs’ Motion (Doc. 67) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Defendants produce the documents as described herein within twenty (20) calendar days. Footnotes [1] Defendants characterize the primary legal issue as “which party has the right to use the trademark and copyright for “Cordials V.I.P.” Doc. 69 at 12. [2] Defendants asserted 22 affirmative defenses and 14 counterclaims against Plaintiffs. Doc. 40. The Court struck five affirmative defenses and dismissed six counterclaims (Doc. 75), despite Defendants’ accusation that “most experienced counsel would forego” such filings (see Doc. 69). Defendants’ Motion to Amend the Answer/Counterclaims is pending. Doc. 79. [3] Defendants are ordered to verify their discovery forthwith; this issue warrants no further attention from the Court. Fed. R. Civ. P. 33(b)(5). [4] Plaintiffs do not specifically raise Defendants’ reliance on boilerplate objections, but the Court admonishes Defendants from using such blanket assertions, which are replete in their objections. Cf. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (the party resisting discovery “must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive”). Generalized objections that a discovery request is vague, overly broad or unduly burdensome are not acceptable and should be overruled. American Rock Salt Co., LLC v. Norfolk Southern Corp., 228 F.R.D. 426, 432 (W.D.N.Y. 2004); Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190-91 (D.D.C. 1998) (holding that general boilerplate objections are ineffective); NNJ Dev., LLC v. Duty Free World, Inc., No. CV 08-535 MV/RLP, 2009 WL 10670917, at *2 (D.N.M. July 28, 2009); Oleson v. K-mart Corp., 175 F.R.D. 570, 571 (D. Kan. 1997) (“The objecting party has the burden to substantiate its objections.... [and] must specifically show how each discovery request is overly broad, burdensome or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”) (citations omitted). A proper objection is one that is tailored to the individual discovery request, not a conclusory objection such as “vague,” “ambiguous,” “overly broad” or “unduly burdensome” which neglects to say why the discovery request is subject to that objection. [5] This Court previously took judicial notice of the trademark's registration record that reflects ownership by Dr. Rusch, and the copyright's registration record reflecting ownership by Mr. Rusch. Doc. 75 at 8 & n.3 (citing Doc. 40-1). [6] Defendants do state that certain English translations of German documents were provided “in separate files, as they were kept,” (Doc. 69 at 13); however, Plaintiffs’ representation, and Defendants own admission, belies that such production occurred regarding all 1400 pages of documents Defendants produced (see Doc. 70 at 3 (noting scattered nature of documents Defendants produced as admitted in their response brief), Doc. 67 at 6, 18-19 (describing manner of production)). [7] Defendants do not address limitations on Plaintiffs’ access to banking records since Defendants unilaterally removed Mr. Strobel from his position as CEO. [8] By identifying the Bates Stamps that correspond to this discovery request, Defendants may have satisfied RFP Nos. 7, 11 and 19. Doc. 69 at 9-10. To the extent any remaining responsive documents exist, Defendants shall produce them forthwith. [9] Defendant Mr. Rusch's assertion that his company Empire Spirits GmbH is not manufacturing, selling or distributing cordials “at this time,” does not relieve him of the obligation to produce documents responsive to Plaintiffs’ requests. See Doc. 69 at 10. [10] Defendants incorrectly state that Plaintiffs made “no request for contact information in the interrogator[ies]” because Plaintiffs expressly requested that information in their Interrogatory instructions at Doc. 67-4 pp. 3-4.