*1 THIS MATTER is before the Special Master on a motion filed by Plaintiffs California Expanded Metal Products Company (“CEMCO”) and Clarkwestern Dietrich Building Systems LLC's (“ClarkDietrich”) (collectively, “Plaintiffs”) to compel discovery from Defendants James A. Klein (“Klein”) and Safti-Seal, Inc. (“Safti-Seal”) (collectively, “Defendants”) and non-party, Seal4Safti, Inc. (“S4S”).

Plaintiffs moved to reopen this case for patent infringement and breach of contract on June 22, 2020 (Dkt. No. 166), alleging violation by Defendants and several non-parties of a permanent injunction entered by consent on January 3, 2020 (Dkt. No. 164). The Court found Klein and S4S in contempt on February 16, 2022. (Dkt. No. 301.) Discovery related to damages had been bifurcated from liability for contempt (Dkt. No. 253), and the parties have been conducting damages discovery since March 14, 2022, according to a schedule set by the Court (Dkt. No. 303).

Plaintiffs’ motion to compel was submitted to the Special Master on May 19, 2022, fully briefed by June 3, 2022, and a hearing was held on June 20, 2022. At the hearing, the Special Master asked the parties to supplement their briefing regarding the status of their discovery disputes and to identify any remaining issues for resolution by the Court.

On June 24, 2022, a joint, supplemental brief was received by the Special Master wherein the parties informed the Special Master that agreement had been reached on all issues raised in Plaintiffs’ motion, save Plaintiffs’ request for fees as a discovery sanction pursuant Fed. R. Civ. P. 37(a)(5)(C). The parties also submitted a stipulation to extend damages discovery as follows:

NOW, THEREFORE, being fully advised of the matter, the Special Master hereby makes the following report and recommendation pursuant to Fed. R. of Civ. P. 53. As for Plaintiffs’ request for fees pursuant to Rule 37(a)(5)(C) in connection with bringing the motion to compel, that rule states “[i]f the motion is granted in part and denied in part, the court ... may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). Plaintiffs maintain they should be awarded fees because S4S delayed its document production, only producing certain responsive documents until after the motion was filed. S4S counters that the discovery requests were overbroad and unduly burdensome, given the scope of the Court's contempt order, i.e., the order's limitation to conduct inducing infringement in connection with the application of the FRG strip to U-shaped track products. Plaintiffs maintain they should be awarded fees from Klein based on his failure to respond to inquiries regarding whether he had supplemental documents or information to produce separately from what S4S was obligated to produce. Klein responds that he has no documents or information for supplementation and that the discovery dispute raised in Plaintiffs’ motion was directed to alleged discovery deficiencies by S4S only.

*2 Based on his review of the record, the Special Master recommends an order denying Plaintiffs’ fee request. The discovery as originally propounded to S4S was overbroad. The parties worked to further narrow those requests, and ultimately reached agreement on scope. Additionally, when this discovery dispute arose, S4S and CEMCO were engaged in a jury trial in the Central District of California which complicated their ability to fully discuss the dispute and reach agreement. As for Defendant Klein, he had no further documents for supplementation apart from what S4S was obligated to produce, and it is unclear on this record whether he was under an obligation to participate in the discovery conferences held between S4S and Plaintiffs.

Regarding the parties’ requested modification to the case schedule, the Special Master finds good cause for the requested extension and recommends that it be entered based on the parties’ stipulation.