I. Background

The parties and the Court are intimately familiar with the allegations and claims in this trademark infringement action and they need not be repeated in this order. The Court will instead focus on the narrow issues before it – whether Defendant The NOCO Company (“NOCO”) violated the Court's July 7, 2020 discovery order (“Order”) and, if so, whether a finding of civil contempt and/or the imposition of other sanctions is warranted.

The present matter arises from Plaintiff Deltona Transformer Corporation's (“Deltona”) attempt to compel production in response to its ninety first and ninety second requests for production, which read:

(Doc. 77). NOCO objected to these requests on various grounds, including overbreadth, but also stated that it previously produced responsive documents. (Id.). Deltona claimed NOCO's production was insufficient and moved to compel NOCO to produce all responsive documents. (Id.). The Court held a hearing on the motion to compel, as well as several other motions, on July 6, 2020. (Docs. 101; 136).

The hearing proceeded as scheduled, with counsel for all parties present. (Doc. 136). The Court began with requests for production 91 and 92, and considered argument from Attorneys Patricia Flanagan and Alex Braunstein, who represent Deltona, and Attorney Devika Persaud, who represents NOCO. (Doc. 140 at 4-5, 10). The Court sustained NOCO's overbreadth objection and overruled all other objections. (Id. at 4-19). Accordingly, the Court then narrowed the scope of the requests for production, resulting in the following discussion:

(Id. at 19-23).

Before the Court moved onto the next motion, Deltona requested that NOCO also be required to produce a document – the BatteryTenderAdsData.xlsx document (“Battery Tender Spreadsheet”) – that Deltona believed would be responsive to requests for production 91 and 92. (Id. at 24). This resulted in the following discussion:

(Id. at 24-25, 55-56).

The day after the hearing, the Court entered an order memorializing its rulings. (Doc. 138 (“Order”)). With respect to requests for production 91 and 92, the Court ordered NOCO to “produce all sales data for battery chargers from January 1, 2014 through the present” by July 20, 2020. (Id. at 4). The Court further ordered that “[t]he sales data ... be produced in the form in which it is internally maintained by [NOCO].” (Id.). As for the Battery Tender Spreadsheet, the Court ordered as follows:

(Id. (emphasis in original)). The parties were warned that “[f]ailure to comply with any aspect of th[e] Order may result in the imposition of sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2)(A).” (Id. at 7). The parties have not challenged the Order and it remains in full force and effect.

On July 20, 2020, NOCO produced a single-page PDF document containing “exported data of all of its battery charger sales broken out by model number and year, and separating Amazon.com advertisements from ‘all other’ advertisements.” (Doc. 192-1 at 5, ¶ 13 (Sealed); see Doc. 182 at 16 (Sealed)). That same day, NOCO also produced a supplemental privilege log claiming that the Battery Tender Spreadsheet is protected by the attorney-client and work product privileges. (Doc. 180-3 at 2, 6). Specifically, the July 20, 2020 supplemental privilege log lists the NOCO Document ID as “REV-NOCO-0275334,” with a date of January 10, 2019, lists the title of the document as “Battery Tender Ads Data.xlsx,” states the purpose of the document as “Spreadsheet created in anticipation of litigation and for the purpose of preparing litigation strategy and seeking legal advice from counsel. Contains attorney-client privileged information and attorney work product,” and provides a subject matter description of “NOCO's claims and defenses against Deltona relating to the purported mark BATTERY TENDER.” (Doc. 180-3 at 6). Based on its claim of privilege, NOCO has not produced the Battery Tender Spreadsheet.

*5 On July 23, 2020, NOCO produced an amended version of the PDF document detailing its sales data for battery chargers. (Doc. 192-1 at 5, ¶ 13 (Sealed); see Doc. 182 at 17 (Sealed)). And on July 29, 2020, NOCO produced the third and final iteration of its sales data “in Excel format with all battery charger sales broken out by model number and year in one tab, and Amazon.com sales broken out by model number and year in a second tab.” (Doc. 192-1 at 5, ¶ 13 (Sealed); see Doc. 182 at 18-19 (Sealed)). NOCO also produced on July 29, 2020 a second version of its supplemental privilege log, which lists the same Battery Tender Ads Data.xlsx spreadsheet. (Doc. 189-9 at 6). The July 29, 2020 version is virtually identical to the July 20, 2020 version with one minor difference. The July 20, 2020 version contains a description of the purpose for preparing the document in part as “Spreadsheet created in anticipation of litigation...,” whereas the July 29, 2020 version describes the purpose as “Three-page spreadsheet regarding potential litigation exposure created in anticipation of litigation ....” (Compare Doc. 180-3 at 6 with Doc. 189-9 at 6).

Unsatisfied with NOCO's production, on August 11, 2020, Deltona filed the present motion requesting that NOCO be held in civil contempt for violating the Order and sanctioned pursuant to Federal Rule of Civil Procedure 37(b)(2). (Doc. 180 (“Motion”)). In addition to seeking monetary sanctions, Deltona argues that NOCO should, at the very least, be “precluded from introducing any purported evidence regarding apportionment or other deductions from its gross sales.” (Id. at 19). Deltona further requests that “liability be established against NOCO and in favor of [Deltona] and/or that a default judgment [be] entered against NOCO.” (Id. at 20). In support of its Motion, Deltona attached: 1) a declaration from Philip Green, a certified public accountant and Deltona's expert witness on damages (Doc. 180-1); 2) excerpts from and exhibits to Jeffery Weiner's August 4, 2020 deposition (Docs. 180-2; 182 (Sealed));[1] 3) NOCO's supplemental privilege log from July 20, 2020 (Doc. 180-3); 4) internal communications from NOCO regarding the Battery Tender Spreadsheet (Doc. 182-1 (Sealed)); and 5) emails between the parties discussing production of sales data and the Battery Tender Spreadsheet (Docs. 180-5; 180-6).

NOCO filed a timely response to the Motion, arguing that it complied with the July 7, 2020 Order. (Doc. 189). NOCO therefore argues that there is no basis to hold it in civil contempt or award sanctions pursuant to Rule 37(b)(2). (Id.). In support, NOCO attached: 1) a complete copy of the July 6, 2020 hearing transcript (Doc. 189-1); 2) a declaration from Mr. Weiner (Docs. 189-2 (Redacted); 192-1 (Sealed)); 3) a declaration from Carrie Distler, NOCO's expert witness on damages (Docs. 189-3 (Redacted); 192-2 (Sealed)); 4) Deltona's first set of requests for production (Doc. 189-4); 5) a declaration from one of NOCO's attorneys, Lida Rodriguez-Taseff (Doc. 189-5); 6) internal communications from NOCO regarding the Battery Tender Spreadsheet (Doc. 192-3 (Sealed)); 7) a declaration from Jonathan Nook, NOCO's president and chief visionary officer (Doc. 189-7); 8) a privilege log that NOCO served on Deltona on December 20, 2019 (Doc. 189-8); and 9) NOCO's supplemental privilege log from July 29, 2020 (Doc. 189-9).

The Motion is fully briefed and ripe for review.

II. Applicable Standards

A. Civil Contempt

District courts have inherent power to enforce compliance with their orders through civil contempt. E.g. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-65 (1980) A party seeking an order of civil contempt has the initial burden of demonstrating by clear and convincing evidence that: “(1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order.” Georgia Power Co. v. N.L.R.B., 484 F.3d 1288, 1291 (11th Cir. 2007) (emphasis in original and citation omitted). Once this initial burden is met, the burden of production shifts to the non-moving party “to show a present inability to comply that goes beyond a mere assertion of inability.” Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990) (internal quotation marks and citations omitted). “Therefore, the focus of the court's inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue.” Id.

B. Sanctions under Rule 37(b)(2)

*6 The Federal Rules of Civil Procedure provide the Court with authority to impose a variety of sanctions on a party who fails to comply with a discovery order. Fed. R. Civ. P. 37(b)(2)(A). Specifically, the Court may impose one or more of the following sanctions:

Id. The Court enjoys “broad discretion to fashion appropriate sanctions for violation of discovery orders[.]” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). However, “in fashioning sanctions, courts should ensure that the sanctions are just and proportionate to the offense.” Wallace v. Superclubs Props., Ltd., No. 08-61437-CIV, 2009 WL 2461775, at *5 (S.D. Fla. Aug. 10, 2009) (internal quotation marks and citations omitted). “Generally, misconduct that results from negligence, misunderstanding, or the party's inability to comply with an order or rule warrants a less severe sanction. In contrast, the most severe sanction of dismissal with prejudice is appropriate only when the sanctioned conduct was willful and in bad faith, and less drastic sanctions would not ensure compliance with the court's orders.” Rodriguez v. Am. K-9 Detection Servs., LLC, No. 6:15-cv-23-Orl-37KRS, 2016 WL 1475080, at *5 (M.D. Fla. Apr. 15, 2016) (internal quotation marks omitted) (citing Harris v. Warden, 498 F. App'x 962, 964 (11th Cir. 2012) and Smith v. Buster, 424 F. App'x 912, 914 (11th Cir. 2011)).

Further, “[i]nstead of or in addition to” the sanctions listed in Rule 37(b)(2)(A), once the Court finds that a party has failed to comply with its order it “must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

III. Discussion

The Motion presents two issues: 1) did NOCO violate the Order (Doc. 138); and 2) if so, should it be held in contempt and/or sanctioned pursuant to Rule 37(b)(2). The Court will address these issues in the context of each alleged violation: the failure to produce adequate sales data for all battery charges, and the failure to produce the Battery Tender Spreadsheet.

A. Battery Charger Sales Data

Deltona contends that NOCO's limited provision of annual sales figures for each battery charger model is insufficient because the “sales data” that it was ordered to provide should have, at minimum, consisted of a list showing “what sales were made, to whom, of what, for how much, and when.” (Doc. 180 at 11 (citing Badia Spice, Inc. v. Gel Spice Co., Inc., No. 15-Civ-24391-COOKE/TORRES, 2016 WL 10586296, at *4 (S.D. Fla. Oct. 24, 2016); Doc. 180-1 at ¶ 4 (declaration from Mr. Green stating that a report containing sales data generally includes information about: the invoice number; invoice date; customer name and ID; product name and number; quantity sold; price per unit; shipping charges; and total invoice)). Without such detailed information, which NOCO is purportedly able to produce at the “push of a button,” Deltona argues that it will be unable to rebut any argument by NOCO claiming that certain sales are not attributable to their infringement. (Id. at 11-13). Deltona therefore argues that NOCO's production of summary sales figures both frustrates its ability to prove damages and violates the portion of the Order directing NOCO to produce “all sales data for battery chargers from January 1, 2014 through the present.” (Id. at 14).

*7 NOCO contends that Deltona ignores the discussion at the hearing that lead to the Court's ruling on what must be produced in response to requests for production 91 and 92. (Doc. 189 at 17). Specifically, NOCO points to the portion of the hearing where the Court asked Deltona to explain exactly what it wanted in response to those requests, bearing in mind the Court's ruling sustaining NOCO's overbreadth objection. (Id.). NOCO notes that Deltona did not then, as it does now, request that NOCO be required to identify the invoice number, invoice date, customer name and ID, product name and number, quantity sold, price per unit, shipping charges, and total invoice for each battery charger sale. (Id.). As such, NOCO contends that it was not obligated to produce such detailed sales information, particularly since the Order did not expressly require such production. (Id.). Instead, NOCO argues that its production of annual sales figures for each battery charger model was consistent with what Deltona requested at the hearing and what NOCO was ultimately ordered to produce. (Id.). The Court agrees with NOCO.

Without rendering any opinion on whether the information Deltona now claims NOCO should have produced may be helpful to Deltona's case, the simple fact is that Deltona did not request NOCO be required to produce such detailed information during the hearing, and the Court did not order NOCO to produce such detailed information. The Court gave Deltona an opportunity to explain what it wanted in response to requests for production 91 and 92, to which Deltona's counsel responded:

(Doc. 140 at 19-20). Based on this explanation and other statements by Deltona's counsel, the Court suggested that it would order NOCO to produce documentation of all sales data relating to battery chargers from January 1, 2014 through the present. (Id. at 21). Before ruling, the Court asked NOCO's counsel whether this is something that NOCO could produce, to which NOCO's counsel responded:

(Id. at 21-22).

Deltona did not take exception to NOCO's response, nor did it ever request that NOCO break out the sales data by invoice number, invoice date, customer name and ID, product name and number, quantity sold, price per unit, shipping charges, and total invoice. (See Doc. 140). Nor did Deltona ever ask for such detailed information in its original requests for production 91 and 92, which, again, were patently overbroad and NOCO's objections on that basis were sustained. Accordingly, the Court proceeded to order NOCO to produce documentation of all sales data relating to battery chargers from January 1, 2014 through the present, but did not further clarify what “sales data” entailed. (Docs. 138 at 4; 140 at 22-23).[2] The fact that NOCO may have been able to produce the information Deltona now claims it should have produced is of no consequence because, as it bears repeating, NOCO was not ordered to produce such detailed information.

*8 Thus, NOCO fully complied with the Court's July 7, 2020 Order when, using the information in its accounting system, NOCO produced a document showing all battery charger sales via Amazon.com broken out by model number and year in one tab, and all battery charger sales (i.e. via Amazon.com and other retail outlets) broken out by model number and year in another tab. (Docs. 182 at 18-19 (Sealed); 192-1 at 4-5, ¶¶ 12-13 (Sealed)). Because NOCO did not violate the Court's July 7, 2020 Order, Deltona has neither shown that NOCO should be held in civil contempt nor sanctioned pursuant to Rule 37(b)(2) with respect to NOCO's production of sales data.[3]

B. The Battery Tender Spreadsheet

Deltona next claims that NOCO violated the July 7, 2020 Order when it belatedly and erroneously claimed that the Battery Tender Spreadsheet is protected by the attorney-client and work product privileges. Specifically, Deltona argues that NOCO waived any claim of privilege by not raising it during the July 6, 2020 hearing and by selectively disclosing internal communications that describe “the specific type of information and data that is in the” Battery Tender Spreadsheet. (Doc. 180 at 16-17). Deltona further argues that NOCO's privilege log does not provide enough information to establish that the Battery Tender Spreadsheet is privileged. (Id. at 15). Based on what is known about the Battery Tender Spreadsheet, Deltona also contends that the information contained therein (and, hence, the document itself) is not subject to protection under the attorney-client or work product privileges. (Id. at 14-17). Deltona therefore claims that NOCO's refusal to produce the Battery Tender Spreadsheet based on its post-hearing assertion of privilege violated the July 7, 2020 Order.

NOCO contends that it did not waive its claim of privilege both because it timely and properly logged the Battery Tender Spreadsheet in its December 20, 2019 privilege log, and because the Court did not address or overrule the claim of privilege during the July 6, 2020 hearing. (Doc. 189 at 18-19). NOCO likewise argues that it did not waive its assertion of privilege by disclosing internal communications discussing the Battery Tender Spreadsheet. (Id. at 19-20). Finally, NOCO contends that its privilege log provided sufficient information to show that the Battery Tender Spreadsheet is protected by both the attorney-client and work product privileges. (Id. at 18-19). NOCO therefore argues it did not violate the July 7, 2020 Order because it was justified in withholding the Battery Tender Spreadsheet based on its assertion of privilege. (Id. at 20).

The issue of the Battery Tender Spreadsheet is resolved by Deltona's first argument – that NOCO waived its claim of privilege over the Battery Tender Spreadsheet. NOCO claims that it timely disclosed the Battery Tender Spreadsheet as a privileged document in its December 20, 2019 privilege log. A review of that privilege log shows otherwise. The entry that NOCO points to does not mention the BatteryTenderAdsData.xlsx document by name. (See Docs. 189 at 15, ¶ 28; 189-8 at 9 (entry regarding “REV-NOCO-0001280-REVNOCO-0001281”)). Instead, the entry lists a document entitled “Re: NOCO – Battery Tender Ads,” and describes the document as “[e]mails dated January 10, 2019, including attachment, and January 9, 2019 containing and concerning legal advice from counsel, in anticipation of litigation, and for the purpose of preparing litigation strategy and seeking legal advice from counsel. Contains attorney-client privileged information, attorney work product, and internal litigation analysis and strategy.” (Doc. 189-8, at 9). The privilege log entry for “REV-NOCO-0001280-REVNOCO-0001281” further describes the subject matter of the document as “NOCO's claims and defenses against Deltona relating to the purported mark BATTERY TENDER.” (Id.). It may be that the “attachment” NOCO refers to is the Battery Tender Spreadsheet, but there is nothing in the log that would suggest that is the case.[4] The Court therefore cannot say that NOCO logged the Battery Tender Spreadsheet on its December 20, 2019 privilege log. Roger Kennedy Constr., Inc. v. Amerisure Ins. Co., No. 6:06-cv-1075-ORL-19KRS, 2007 WL 1362746, at *1 (M.D. Fla. May 7, 2007) (detailing the information needed in a proper privilege log).

*9 When the Battery Tender Spreadsheet was discussed at the July 6, 2020 hearing, NOCO did not argue that the document was privileged. (See Doc. 140). Instead, the only concerns NOCO raised about production of the Battery Tender Spreadsheet was the possibility that it contained information unrelated to battery charges, and that the Battery Tender Spreadsheet could be duplicative of other information already produced. (Doc. 140 at 55-56). The Court addressed these concerns by allowing NOCO to redact any information in the document that was unrelated to battery chargers. (Doc. 140 at 56). Otherwise, NOCO was ordered to produce the Battery Tender Spreadsheet. (Doc. 138 at 4).[5]

Just like the Court is holding Deltona to its words (or silence) at the July 6, 2020 hearing, so too will NOCO be held to the same standard. According to NOCO, it was aware that the Battery Tender Spreadsheet was a privileged document at least dating back to December 2019, yet NOCO remained silent at the July 6, 2020 hearing, including when the Court directly questioned NOCO's counsel as to whether the spreadsheet could be produced. NOCO's failure to challenge production of the Battery Tender Spreadsheet at the hearing on the basis that it is privileged waived any valid claim of privilege NOCO may have had over the document.[6] See, e.g., McGhiey v. Orange Lake Country Club, Inc., No:6:18-cv-2076-Orl-28TBS, 2019 WL 2904730, at *2 (M.D. Fla. July 5, 2019) (finding party's failure to timely raise objections to discovery requests “waived whatever objections he may have had” including privilege); Third Party Verification, Inc. v. SignatureLink, Inc., No. 6:06-cv-415-Orl-22DAB, 2007 WL 1288361, at *3 (M.D. Fla. 2007) (“A party who fails to file timely objections waives all objections, including those based on privilege or work product.”) (citations omitted).[7]

As the party claiming privilege, it was NOCO's burden to show that the Battery Tender Spreadsheet was privileged. Tyne v. Time Warner Entm't Co., L.P., 212 F.R.D. 596, 599 (M.D. Fla. 2002). It failed to raise that issue, let alone meet its burden, at the hearing. Accordingly, the Court ruled on Deltona's request that NOCO produce the Battery Tender Spreadsheet and NOCO was required to comply with Court's ruling. (Doc. 138 at 4). NOCO has not produced the Battery Tender Spreadsheet, and the deadline to do so has long passed. The Court therefore finds that NOCO violated that aspect of the July 7, 2020 Order.[8]

*10 Having found that NOCO violated the Court's July 7, 2020 Order, the final issue to decide is an appropriate sanction. The Court is mindful that any sanctions imposed must be proportionate to the offense. Wallace, 2009 WL 2461775, at *5. Deltona's arguments to the contrary, the Court does not find that the facts of this case warrant a finding of civil contempt, nor the levying of the more severe sanctions provided under Rule 37(b)(2)(A). Here, NOCO failed to produce a document, which appears to be several pages in length and relates to sales of battery chargers – evidence which appears to be similar to that produced by NOCO through its summary sales data sheets discussed earlier. Considering the nature of the outstanding production and the seriousness of NOCO's transgression, the Court finds the appropriate sanction is to order NOCO to produce the Battery Tender Spreadsheet and direct NOCO to pay Deltona's reasonable attorney's fees and expenses for bringing the Motion. Fed. R. Civ. P. 37(b)(2)(C).[9] However, as discussed above, Deltona has only prevailed on one of its two claims, with the other defeated due to Deltona's own words (or lack thereof) at the July 7, 2020 hearing. Thus, to avoid a windfall, Deltona shall only be awarded 50% of its reasonable attorney's fees and expenses accrued in preparing and filing the Motion.

IV. Conclusion

For the reasons discussed above, it is ORDERED that:

DONE and ORDERED in Orlando, Florida on October 30, 2020.

Mr. Weiner serves as NOCO's chief financial officer. (Doc. 189-2 at 2, ¶ 1).

The Court has considered the Badia Spice case that Deltona cites in support of its definition of “sales data.” The portion of the case that Deltona relies on, however, does not address the type of details that should be produced as a matter of course in response to a discovery request seeking sales information. See Badia Spice, 2016 WL 10586296, at *4. The issue presented, instead, centered on whether the defendant was obligated to supplement its sales information with recent sales. Id. In other words, the defendant had already produced the detailed information, but was arguing over whether it must be updated with more recent information. Id. The Court therefore finds the Badia Spice case unpersuasive.

While the Court concludes that NOCO did not violate the July 7, 2020 Order, sanctions would not be warranted for an additional reason. It is clear from the parties’ briefing and a review of the hearing transcript that the definition of the term “sales data” was left somewhat ambiguous, and a party cannot be held in contempt for violation of a court order where the order is not clear and unambiguous. Georgia Power Co., 484 F.3d at 1291.

Further creating confusion is the fact that the bates numbers identified at the July 6, 2020 hearing for the Battery Tender Spreadsheet were NOCO 0022684 to 22694 (Doc. 140 at 56). However, the document identified on the December 20, 2019 privilege log uses bates numbers REV-NOCO-0001280-REVNOCO-0001281, (Doc. 189-8, at 9) and the document identified on the July 20, 2020 and July 29, 2020 supplemental privilege logs uses bates number REV-NOCO-0275334 (Docs. 180-3 at 6; 189-9 at 6).

The Court qualified its ruling by stating that “[i]f the [Battery Tender Spreadsheet] cannot be redacted, the parties shall work together in a good faith effort to determine how any information in that document that is responsive to [Deltona's] Request for Production Nos. 91 and 92 should be produced.” (Doc. 138 at 4). NOCO has not claimed that it is unable to redact the spreadsheet. (See Doc. 189).

To the extent that NOCO is now arguing that Deltona did not properly meet and confer about the Battery Tender Spreadsheet prior to raising the issue at the July 6, 2020 hearing, (see Doc. 189 at 13), NOCO never raised that argument during the hearing, and it too has now been waived.

The Court notes that in its original responses to Requests for Production 91 and 92, NOCO objected to the extent that Deltona was seeking information subject to the attorney-client privilege and the work product doctrine. (Doc. 77, at 7-8). However, NOCO never raised these objections or claims of privilege with respect to the Battery Tender Spreadsheet at any point in time until it was already ordered to produce the document. Accordingly, the waiver doctrine still applies.

NOCO's reliance on its July 20, 2020 and/or July 29, 2020 privilege logs – which were produced several weeks after the Court's order directing NOCO to produce the Battery Tender Spreadsheet – does not resurrect NOCO's claim of privilege over the spreadsheet. NOCO had ample opportunity to argue and establish that the document was privileged, it remained silent during the July 6, 2020 hearing, and it lodged no objections or sought clarification of the July 7, 2020 Order. Simply put, NOCO's assertion of privilege comes too late.

In so finding, the Court has considered whether NOCO has shown its failure to comply with the Order was substantially justified or whether an award of attorney's fees and expenses would be unjust. For the reasons discussed above, the Court finds NOCO has not shown either exception applies, and, therefore, NOCO must pay Deltona's reasonable attorney fees and expenses for bringing the Motion.