Mosaic Brands, Inc v. The Ridge Wallet LLC
Mosaic Brands, Inc v. The Ridge Wallet LLC
2020 WL 12048883 (C.D. Cal. 2020)
November 2, 2020
Chooljian, Jacqueline, United States Magistrate Judge
Summary
The court found that the Plaintiff's objections to the Defendant's requests for ESI were valid, as the requests were overly broad and unduly burdensome. The court also found that the definitions of “Person” and “Mosaic” were overly broad and unduly burdensome. As a result, the court denied the Defendant's motion to compel the production of ESI.
Additional Decisions
Mosaic Brands, Inc
v.
The Ridge Wallet LLC
v.
The Ridge Wallet LLC
Case No. 2:20-cv–04556-AB-JC
United States District Court, C.D. California
Filed November 02, 2020
Counsel
Kerri Hays, Deputy Clerk, Attorneys Present for Plaintiff: NoneNone, Court Reporter / Recorder, None, Tape No., Attorneys Present for Defendant: None
Chooljian, Jacqueline, United States Magistrate Judge
Proceedings: (In Chambers) ORDER (1) SUBMITTING AND VACATING HEARING ON DEFENDANT'S MOTION TO COMPEL; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL (DOCKET NO. 60); AND (3) ORDERING PLAINTIFF TO PRODUCE SPECIFIED DISCOVERY
I. SUMMARY
*1 On October 20, 2020, Defendant The Ridge Wallet LLC (“Defendant”) filed a Motion to Compel Plaintiff Mosaic Brands, Inc. (“Plaintiff”) to Respond to First Sets of Interrogatories and Requests for Production of Documents (“Defendant's Motion”) with accompanying documents, including a Joint Stipulation (alternatively, “JS”) and a declaration of Michael Harris (“Harris Decl.”) with exhibits (“Harris Ex.”).[1] (Docket No. 60). On October 27, 2020, Plaintiff filed a Supplemental Memorandum in Opposition to Defendant's Motion (“Supp. Memo). (Docket No. 61). Defendant's Motion is currently set for hearing before this Court on November 10, 2020 at 9:30 a.m.
The Court finds Defendant's Motion appropriate for resolution without oral argument and vacates the November 10, 2020 hearing date. See Fed. R. Civ. P. 78; Local Rule 7-15. For the reasons explained below, the Court grants in part and denies in part Defendant's Motion and directs Plaintiff to produce the below-specified discovery by November 17, 2020.
II. PERTINENT BACKGROUND
A. Pleadings
On May 29, 2020, Plaintiff initiated this action by filing the original Complaint for Patent, Copyright and Trade Dress Infringement, alleging that Defendant (1) infringed on its patent – U.S. Patent No. 7,334,616 (the “616 Patent”) entitled “Card-Holding and Money Clip Device”; (2) infringed on its copyright in and to its “Storus Smart Money Clip II” product design which was created in about 2011 and first published in 2019 and as to which a copyright application was pending; (3) infringed on its trade dress relative the “Storus Smart Money Clip II” and other products; and (4) employed unlawful and unfair business acts or practices in violation of California Business & Professions Code sections 17200, et seq. (Docket No. 1). Plaintiff later filed a Motion for Preliminary Injunction. (Docket No. 18). On July 13, 2020, the District Judge granted Defendant's Motion to Dismiss the Complaint and, in the absence of an operative complaint, denied the Motion for Preliminary Injunction. (Docket No. 27).
On July 13, 2020, Plaintiff filed a First Amended Complaint for Patent and Trade Dress Infringement, alleging that Defendant (1) infringed on its 616 Patent entitled “Card-Holding and Money Clip Device”; and (2) infringed on its trade dress relative the “Storus Smart Money Clip II” and other products. (Docket No. 28). Plaintiff later filed another Motion for Preliminary Injunction. (Docket No. 29). On September 3, 2020, the District Judge granted Defendant's Motion to Dismiss the First Amended Complaint and, in the absence of an operative complaint, denied the second Motion for Preliminary Injunction. (Docket No. 38).
On September 11, 2020, Plaintiff filed a Second Amended Complaint for Patent and Trade Dress Infringement, alleging that Defendant (1) infringed on its 616 Patent entitled “Card-Holding and Money Clip Device”; and (2) infringed on its trade dress relative the “Storus Smart Money Clip II” and other products. (Docket No. 39). On the same date, Plaintiff filed another Motion for Preliminary Injunction. (Docket No. 40). On October 29, 2020, the District Judge granted in part and denied in part Defendant's Motion to Dismiss the Second Amended Complaint – finding that plaintiff had adequately plead its patent infringement claim, but that plaintiff had not adequately plead its theory that the infringement was willful and induced or that Defendant had infringed on its trade dress. (Docket No. 62). The District Judge dismissed such latter allegations/claim with leave to amend. (Docket No. 62). The District Judge also denied the third Motion for Preliminary Injunction as moot relative to the dismissed trade dress claim and on the merits as to the patent infringement claim, finding that Plaintiff had not demonstrated a likelihood of success on the merits of such claim. (Docket No. 62).
B. Discovery
*2 On August 25, 2020, Defendant served Plaintiff by email with Defendant's First Request for Production of Documents (“Document Requests” or “RFP No(s).”), containing RFP Nos. 1-131 and First Interrogatories (“Interrogatories” or “Interrogatory No(s).”), containing Interrogatory Nos. 1-8. (Harris Exs. 1, 2).
On September 22, 2020, the parties submitted a Stipulation for Protective Order and the Court approved and issued a Protective Order on the same date. (Docket Nos. 43, 44).
On September 24, 2020, Plaintiff served Defendant by email with Plaintiff's Responses to the Document Requests and the Interrogatories. (Harris Exs. 3, 4).[2]
As to the Document Requests, Plaintiff (1) interposed General Objections to all of the Document Requests;[3] (2) interposed individual objections to each of the Document Requests;[4] and (3) represented as to each of the Document Requests that “[s]ubject to and without waiving [its] objections, Plaintiff [would] produce any responsive, non-privileged documents in its possession, custody, or control that are located after a reasonable search, which is ongoing presently.” (Harris Ex. 3 at 1-43). Plaintiff did not contemporaneously produce any responsive documents. (JS at 2).
As to the Interrogatories, Plaintiff (1) interposed General Objections to all of the Interrogatories;[5] (2) interposed individual objections to each of the Interrogatories;[6] and (3) provided qualified substantive responses to all of the Interrogatories “[s]ubject to and without waiving [its] objections.” (Harris Ex. 4 at 1-43).
*3 As Defendant viewed Plaintiff's responses to the Document Requests and Interrogatories to be deficient, the parties exchanged correspondence and met and conferred regarding the matter between September 28, 2020 and October 5, 2020. (Harris Exs. 5-7). During the course of such exchanges, Plaintiff represented that it was “not withholding any responsive documents or information pursuant to form objections” and was “in the process of gathering and preparing for production all responsive documents.” (Harris Ex. 7). On October 8, 2020, Plaintiff produced 24 pages of documents. (JS at 2).
On October 13, 2020, the parties filed an Amended Joint Rule 26(f) Report in which Plaintiff proposed a non-expert discovery cut-off of January 4, 2021 and an expert discovery cut-off of February 5, 2021, and Defendant proposed a non-expert discovery cut-off of April 2, 2021 and an expert discovery cut-off of May 21, 2021. (Docket No. 57). No discovery cut-off deadlines have yet been set as the Scheduling Conference is scheduled for November 20, 2020 at 10:00 a.m. (Docket No. 58).
III. PERTINENT LAW
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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.” Fed. R. Civ. P. 26(b)(1). Information within the foregoing scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, any party may serve upon any other party written interrogatories within the scope of Rule 26(b). Fed. R. Civ. P. 33(a)(2). Absent a stipulation or order extending time, a party must. within 30 days after being served, respond to interrogatories by answer – furnishing information available to the party – or objection. Fed. R. Civ. P. 33(b). Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. Fed. R. Civ. P. 33(b)(3). A party responding to interrogatories has the option of producing business records where: (1) the answer to the interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing the records, and (2) the burden of deriving or ascertaining the answer is substantially the same for either party. Fed. R. Civ. P. 33(d). When a party produces business records, the party must “specify[ ] the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could[.]” Id.
The ground(s) for objecting to an interrogatory must be stated with specificity. Fed. R. Civ. P. 33(b)(4). General or boilerplate objections are improper – especially when a party fails to submit any evidentiary declarations supporting such objections. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006).
Pursuant to Rule 34, any party may serve on any other party a request for the production or inspection of documents within the scope of Rule 26(b) which are in the responding party's possession, custody or control. Fed. R. Civ. P. 34(a). Documents are deemed to be within a party's possession, custody or control if the party has actual possession, custody or control thereof or the legal right to obtain the property on demand. In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed, 517 U.S. 1205 (1996). Accordingly, a party has an obligation to conduct a reasonable inquiry into the factual basis of its responses to discovery, and based on that inquiry, a party responding to a Rule 34 production request is under an affirmative duty to seek that information reasonably available to it from its employees, agents, or others subject to its control. A. Farber and Partners, Inc., 234 F.R.D. at 189 (citations and internal quotation marks omitted).
*4 Unless excused by a protective order, in response to a request for the production of documents a party must, within 30 days of service thereof and as to each item or category, either: (1) state that the inspection will be permitted/production will be made; or (2) state with specificity the grounds for objecting to the request, including the reasons, and state whether any responsive materials are being withheld on the basis of that objection. Fed. R. Civ. P. 34(b)(2)(A)-(C). If the responding party states that it will produce documents, such production must be completed no later than the time specified in the request or another reasonable time specified in the response. Fed. R. Civ. P. 34(b)(2)(B).
If a party fails timely to object to discovery requests, such a failure generally constitutes a waiver of any objections which a party might have to the requests. See Fed. R. Civ. P. 33(b)(4) (any ground not stated in timely objection to interrogatory waived unless court, for good cause, excuses failure); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1991) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”) (citation omitted), cert. dismissed, 506 U.S. 948 (1992).
Notwithstanding the foregoing, the Ninth Circuit has rejected a per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34's time limit. Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont. (“Burlington”), 408 F.3d 1142, 1149 (9th Cir.), cert. denied, 546 U.S. 939 (2005). Instead, using the Rule 34 deadline as a default guideline, a district court should make a case-by-case determination, taking into account the following factors: (1) the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); (2) the timeliness of the objection and accompanying information about the withheld documents (where service within the Rule 34 deadline as a default guideline, is sufficient); (3) the magnitude of the document production; and (4) other particular circumstances of the litigation that make responding to discovery unusually easy or unusually hard. Id. These factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process. Id. They should not be applied as a mechanistic determination of whether the information is provided in a particular format. Id.
If a motion to compel is granted, the court must, after giving an opportunity to be heard, require the party whose conduct necessitated the motion, the party or attorney advising the conduct, or both to pay the movant's reasonable expenses incurred in the making the motion, including attorney's fees unless the movant filed the motion before attempting in good faith to obtain the disclosure/discovery without court action, the opposing party's nondisclosure, response or objection was substantially justified, or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(b)(5)(A); Paladin Associates, Inc. v. Montana Power Co, 328 F.3d 1145, 1164-65 (9th Cir. 2003) (party given “opportunity to be heard” within meaning of rule allowing for imposition of discovery sanctions as party received notice of possibility of sanctions when movant filed motion for costs, party allowed to submit responsive brief, and issues were such that evidentiary hearing would not have aided court's decisionmaking process); Hudson v. Moore Business Forms, Inc., 898 F.2d 684, 686 (9th Cir. 1990) (party need not be given opportunity to respond to sanctions request orally if given full opportunity to respond in writing).
IV. DISCUSSION AND ORDERS
*5 Defendant's Motion seeks to compel Plaintiff to (1) withdraw all objections to the Document Requests and Interrogatories; (2) respond fully to the Document Requests, and if it has no responsive documents in its possession, custody or control to expressly so state; (3) produce all requested documents in Plaintiff's possession, custody or control; (4) fully answer the Interrogatories; (5) verify all answers to the Interrogatories; and (6) pay Defendant $23,980 – expenses and fees incurred in connection with Defendant's Motion – under Fed. R. Civ. P. 37(a)(5). (Docket Nos. 60, 60-11 [Notice of Motion and Proposed Order]). Plaintiff essentially takes the position that Defendant's Motion is unnecessary because Plaintiff is not “resting on its objection[s][,]” to the Document Requests or Interrogatories, “is not withholding any documents from discovery[,]” “has produced all responsive documents under its possession, custody, or control, while it continues its search for additional responsive documents[,]” and has provided substantive responses to the Interrogatories (JS at 3; Supp. Memo at 2, 3).
As explained below, the Court grants in part and denies in part Defendant's Motion, makes the findings set forth below, and rules as set forth below.
A. Document Requests
First, in light of Plaintiff's representation that it is not withholding any discovery – other than perhaps attorney-client privileged/work product documents – based upon its objections, the Court does not require Plaintiff to “withdraw” its objections as requested by Defendant, but does overrule such objections – other than the attorney-client privilege/work product objections – as moot.
Second, the Court finds that Plaintiff's responses to the Document Requests are deficient and will require further responses. Although Plaintiff's responses effectively convey that responsive materials are not being withheld on the basis of anything other than its privilege objections, they do not specify a time, let alone a reasonable time when production will be made and are unaccompanied by a requisite privilege log. Moreover, particularly given the apparent production of a mere 24 pages to date, the Court deems it appropriate to require Plaintiff to provide more clarity regarding whether it does or does not have responsive documents in its possession, custody or control responsive to each request. Accordingly, the Court orders Plaintiff, by not later than November 17, 2020, to provide supplemental responses to the Document Requests (1) expressly stating as to each Document Request whether or not Plaintiff has possession, custody or control (as defined above) of any documents responsive thereto; (2) identifying any such documents by bates numbers/other assigned numbers in each response; and (3) expressly stating in each response whether any responsive documents have been withheld based upon a privilege objection and if so, identifying/describing the same on a concurrently produced privilege log (per the below).
Third, to the extent Plaintiff has not already done so, the Court orders Plaintiff to (1) seek documents reasonably available to it from its employees, agents, or others subject to its control that are responsive to the Document Requests; (2) produce all non-attorney-client privileged/work product documents responsive to the Document Requests in its possession, custody or control by not later than November 17, 2020; and (3) produce a privilege log corresponding to all documents responsive to the Document Requests that have been withheld based upon the assertion of attorney-client privilege/work product objections.
B. Interrogatories
In light of Plaintiff's representation that it is not resting on its objections as to any of the Interrogatories (JS at 88-95) the Court overrules such objections as moot. The Court otherwise individually addresses the Interrogatories below.
Interrogatory No. 1
Interrogatory No. 1 calls for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons[7] with knowledge of each product Mosaic[8] [Plaintiff] sold and the period when it sold the product. Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded that it was “impossible for Plaintiff to identify all ‘Persons with knowledge of each product Mosaic sold and the period when it sold the product’ based on the definition of ‘Persons’ in definition 4 [see supra note 7], which limit[ed] the scope of this interrogatory to all natural persons, corporations, partnerships, LLCs, LLPs, divisions, agencies or other entities that have ever existed, including those beyond the knowledge or control of Plaintiff. However, at least Scott Kaminski and Mia Kaminski know of each product Mosaic sold and the period when it sold the product.”
*6 Defendant clarifies that it only seeks information about “people known to Mosaic” and that “[i]f the answer includes Mosaic's employees, agents or other[s] outside Mosaic but known to it, Mosaic must fully identify them... includ[ing] Mosaic employees and employees at Mosaic's suppliers, designers, manufacturers, advertising agencies, customers ... and competitors.” (JS at 88).
In light of the foregoing, the Court (1) modifies Interrogatory No. 1 to call for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons Plaintiff knows to have knowledge of each product Mosaic [Plaintiff] sold and the period when it sold the product; and (2) orders Plaintiff to conduct a reasonably diligent inquiry for information responsive to this interrogatory and to provide a supplemental verified response without objection to such interrogatory by November 17, 2020.
Interrogatory No. 2
Interrogatory No. 2 calls for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons with knowledge of any corporation, LLC or other entity of which Scott Kaminski is a shareholder, member, executive, managing agent or employee. Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded that it was “impossible for Plaintiff to identify all ‘Persons with knowledge of any corporation, LLC or other entity of which Kaminsky is a shareholder, member, executive, managing agent or employee’ based on the definition of ‘Persons’ in definition 4 [see supra note 7], which limit[ed] the scope of this interrogatory to all natural persons, corporations, partnerships, LLCs, LLPs, divisions, agencies or other entities that have ever existed, including those beyond the knowledge or control of Plaintiff. However, at least Scott Kaminski and Mia Kaminski have knowledge of any corporation, LLC or other entity of which Scott Kaminski is a shareholder, member, executive, managing agent or employee.”
Defendant again clarifies that it only seeks information “known to Mosaic.”
In light of the foregoing, the Court (1) modifies Interrogatory No. 2 to call for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons Plaintiff knows to have knowledge of any corporation, LLC or other entity of which Scott Kaminski is a shareholder, member, executive, managing agent or employee; and (2) orders Plaintiff to conduct a reasonably diligent inquiry for information responsive to this interrogatory and to provide a supplemental verified response without objection to such interrogatory by November 17, 2020.
Interrogatory No. 3
Interrogatory No. 3 calls for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons with knowledge of Mosaic's sale of the Smart Money Clip II. Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded that it was “impossible for Plaintiff to identify all ‘Persons with knowledge of Mosaic's sales of the Smart Money Clip II’ based on the definition of ‘Persons’ in definition 4 [see supra note 7], which limit[ed] the scope of this interrogatory to all natural persons, corporations, partnerships, LLCs, LLPs, divisions, agencies or other entities that have ever existed, including those beyond the knowledge or control of Plaintiff. However, at least Scott Kaminski and Mia Kaminski have knowledge of Mosaic's sales of the Smart Money Clip II.”
*7 The Court (1) modifies Interrogatory No. 3 to call for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons Plaintiff knows to have knowledge of Mosaic's sales of the Smart Money Clip II; and (2) orders Plaintiff to conduct a reasonably diligent inquiry for information responsive to this interrogatory and to provide a supplemental verified response without objection to such interrogatory by November 17, 2020.
Interrogatory No. 4
Interrogatory No. 4 calls for Plaintiff to state the name, telephone number, street and email address, employer and position of all Mosaic current or past employees with knowledge of every Wallet Mosaic sold or offered for sale. Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded that “at least Scott Kaminski and Mia Kaminski have knowledge of the wallets Mosaic sold or offered for sale.”
The Court (1) modifies Interrogatory No. 4 to call for Plaintiff to state the name, telephone number, street and email address, employer and position of all Mosaic current or past employees that Plaintiff knows to have knowledge of every Wallet Mosaic sold or offered for sale; and (2) orders Plaintiff to conduct a reasonably diligent inquiry for information responsive to this interrogatory and to provide a supplemental verified response without objection to such interrogatory by November 17, 2020.
Interrogatory No. 5
Interrogatory No. 5 calls for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons with knowledge of Ridge [Defendant] before May 20, 2020. Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded that it was “impossible for Plaintiff to identify all ‘Persons with knowledge of Ridge [Defendant]’ based on the definition of ‘Persons’ in definition 4 [see supra note 7], which limit[ed] the scope of this interrogatory to all natural persons, corporations, partnerships, LLCs, LLPs, divisions, agencies or other entities that have ever existed, including those beyond the knowledge or control of Plaintiff. However, at least Scott Kaminski and Mia Kaminski has such knowledge.”
The Court (1) modifies Interrogatory No. 5 to call for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons Plaintiff knows had knowledge of Ridge [Defendant] before May 20, 2020; and (2) orders Plaintiff to conduct a reasonably diligent inquiry for information responsive to this interrogatory and to provide a supplemental verified response without objection to such interrogatory by November 17, 2020.
Interrogatory No. 6
Interrogatory No. 6 calls for Plaintiff “[f]or each element in all claims of the '616 Patent asserted against Ridge [Defendant] that is not present literally in Ridge's [Defendant's] accused Wallet, [to] state all facts supporting [Plaintiff's] contention that the element is the equivalent of the claimed element. Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded that “pursuant to Rule 33(d) the answer to this interrogatory may be obtained from the claim chart attached to Plaintiff's Second Amended Complaint (“SAC”) and Plaintiff's motions for preliminary injunction, and briefs, exhibits and replies in support of Plaintiff's motions for preliminary injunction.”
Defendant essentially argues that requiring it to glean facts supporting Plaintiff's contentions from multiple documents is improper and that such documents do not confirm Plaintiff's reliance on the doctrine of equivalence or state facts supporting Mosaic's contention why any element is the equivalent of the claimed element.
*8 As it does not appear to the Court that Plaintiff has properly invoked Rule 33(d) in response to this contention interrogatory, the Court orders Plaintiff to provide a substantive verified response to this interrogatory without objection or invocation of Rule 33(d) by November 17, 2020.
Interrogatory No. 7
Interrogatory No. 7 calls for Plaintiff “[f]or each claim in all claims of the '616 Patent Ridge [Defendant] allegedly infringes, [to] provide a chart identifying specifically where and how each limitation of each asserted claim is found within each Ridge Wallet including for each limitation Plaintiff contends is governed by 35 U.S.C. § 112, ¶ 6 (pre-AIA) or § 112(f), the identity of the structure(s), act(s), or material(s) in Ridge's Wallet performs the claimed function.” Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded that “pursuant to Rule 33(d) the answer to this interrogatory may be obtained from the claim chart attached to Plaintiff's Second Amended Complaint (“SAC”) and Plaintiff's motions for preliminary injunction, and briefs, exhibits and replies in support of Plaintiff's motions for preliminary injunction.”
As it does not appear to the Court that Plaintiff has properly invoked Rule 33(d) in response to this contention interrogatory, the Court orders Plaintiff to provide a substantive verified response to this interrogatory without objection or invocation of Rule 33(d) by November 17, 2020.
Interrogatory No. 8
Interrogatory No. 8 calls for Plaintiff to state the name, telephone number, street and email address, employer and position of all Persons that Mosaic asserts is a direct infringer of Ridge's [Defendant's] indirect infringement. Subject to and without waiving its objections (see supra notes 3, 5 & 6), Plaintiff responded: “Ridge's [Defendant's] customers and users of its accused infringing products, the identities of whom Plaintiff will seek in discovery.”
As noted above, the Court has overruled Plaintiff's objections as moot as Plaintiff has not withheld responsive information based on such objections. To the extent Plaintiff's above response is unverified, Plaintiff is ordered to provide a verified version of such response by November 17, 2020. While Plaintiff must also supplement its substantive response to this interrogatory after obtaining discovery of Defendant's customers/users of its accused infringing products, the Court views its current response (other than being unverified) to be sufficient at this juncture and accordingly will not otherwise require a further response at this juncture.
C. Sanctions
The Court denies Defendant's Motion to the extent it requests the imposition of sanctions against Plaintiff/Plaintiff's counsel. The Court likewise denies Plaintiff's cross-request for sanctions. (JS at 95-96). The Court finds that the parties have been afforded an adequate opportunity to be heard regarding the sanctions requests in writing and that an evidentiary hearing would not aid the Court's decisionmaking process regarding the imposition of sanctions. It is the Court's view that the factual circumstances present here – to some degree detailed above – make an award of fees/costs not justified.
IT IS SO ORDERED.
Footnotes
Although Plaintiff references a “Lobbin Decl.” (see, e,g., JS at 3), no such declaration accompanies Defendant's Motion.
Plaintiff's Responses to the Interrogatories do not appear to be verified as required. (Harris Ex. 4).
Plaintiff's General Objections (1) objected to each RFP to the extent it (a) failed to comply with the Federal Rules of Civil Procedure and the Local Rules; (b) purported to impose on Plaintiff an obligation to provide information for or on behalf of any person/entity other than Plaintiff and/or purported to seek information that is not within Plaintiff's possession, custody or control; (c) was compound, overbroad, duplicative, burdensome, and/or harassing; and (d) sought confidential, non-public information; (2) objected to the definitions contained in the Document Requests to the extent they made one or more of the RFPs overly broad, unduly burdensome, harassing, and/or unreasonable; and (3) objected to the definition of “MOSAIC” and “PLAINTIFF,” “YOU,” and “YOUR” as overbroad, unduly burdensome, and [not] reasonably calculated to lead to admissible evidence, noting that Plaintiff was unable to make representations on behalf of “employees, agent, officers, directors, servants, representatives, companies” etc. in their individual capacities, and was unable to search exhaustively for all information possessed by these third parties whom Plaintiff did not have control or authority over, but that its responses were based on a reasonably diligent inquiry within the four corners of Plaintiff's facilities. (Harris Ex. 3 at 1-2).
As to each Document Request, Plaintiff objected because the requests “call[ed] for information subject to the attorney-client privilege and/or work product doctrine” and were “vague, over broad, unduly burdensome and dis-proportional.” (Harris Ex. 3 at 2-43).
Plaintiff interposed the same General Objections to the Interrogatories that were interposed as to the Document Requests (Harris Ex. 4 at 1-2). See supra note 3.
Plaintiff asserted the following as to each Interrogatory: “Plaintiff objects to the request as vague, overly broad, and unduly burdensome. Plaintiff also objects to the extent responsive information is protected by the attorney-client privilege or work product privileges, is irrelevant or not proportional to the needs of the case, or is a legal conclusion or expert opinion.” (Harris Ex. 4 at 2-6).
Defendant defined “Person” as “a natural person, a corporation, partnership, LLC, LLP, division, agency or other entity.” (Harris Ex. 2 at 2).
Defendant defined “Mosaic” as “plaintiff Mosaic Brands, Inc. and all predecessors, subsidiaries, parents and their past and present employees, officers, agents, or attorneys. The Mosaic definition encompasses Storus Corporation, Mosaic International LLC, JGL Enterprises Inc., LE Holdings LLC, all other entities that include the words “Storus” or “Mosaic” in their name, and all entities in which Scott Kaminski or his wife is an officer, member, executive employee or independent contractor, and their predecessors, subsidiaries, parents and their past and present employees, officers, agents, or attorneys.” (Harris Ex. 2 at 1-2).