Servpro Intelletual Prop. Inc. v. Blanton
Servpro Intelletual Prop. Inc. v. Blanton
2019 WL 13215342 (W.D. Ky. 2019)
October 24, 2019
Lindsay, Colin H., United States Magistrate Judge
Summary
The court ordered Defendants to produce all ESI contained in .esx files in PDF format or TIFF format with OCR or OCR files by November 30, 2019. This ensured that all relevant information was provided to the court in a format that was easily accessible and understandable.
SERVPRO INTELLETUAL PROPERTY INC., et al., Plaintiffs,
v.
Jacob BLANTON, et al., Defendants
v.
Jacob BLANTON, et al., Defendants
CIVIL ACTION NO. 3:18-CV-121-RGJ-CHL
United States District Court, W.D. Kentucky, Louisville Division
Signed
October 23, 2019
Filed October 24, 2019
Counsel
Edward D. Lanquist, Jr., Scott M. Douglass, Patterson Intellectual Property Law, P.C., Nashville, TN, Samuel W. Wardle, Thomas Patrick O'Brien, III, Frost Brown Todd LLC, Louisville, KY, for Plaintiffs.B. Ballard Rogers, Michael A. Valenti, Valenti Hanley, PLLC, Louisville, KY, for Defendants.
Lindsay, Colin H., United States Magistrate Judge
Order
*1 Plaintiffs, Servpro Intellectual Property, Inc. and Servpro Industries, Inc. (collectively, “Servpro” or “Plaintiffs”) allege that Defendants, Jacob Blanton d/b/a Water & Flood Cleanup Restoration and d/b/a/ www.servpro.click (“Blanton”), and Emergency Services LLC (“ES”) (collectively, “Defendants”) are cybersquatting. (DN 1 at PageID #1.) Servpro alleges trademark infringement under 15 U.S.C. §§ 1114 and 1125, unfair competition, cyber piracy, counterfeiting, and civil conspiracy. (DN 1, at PageID #15.) Servpro alleges Defendants maintain a website located at www.servpro.click (“the Defendants’ website”) that is a near duplication of Servpro's standard franchisee websites. (DN 1, at PageID # 11.)
Before the Court is Servpro's motion for sanctions pursuant to Rule 26 and Rule 37 as briefed in DNs 33, 35 and 37. Also before the Court is Servpro's second motion to compel as briefed in DN 44, and Defendants’ counsel's motion to withdraw as briefed in DN 43 and DN 45.
I. MOTION FOR SANCTIONS
A. Legal Standard
Rule 26 requires that every discovery request, response or objection must be signed by at least one attorney of record to certify that to the best of the person's knowledge, information and belief formed after a reasonable inquiry, the discovery response or objection is “consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law,” was “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” and was “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Fed. R. Civ. P. 26(g)(1).
If a certification violates Fed. R. Civ. P. 26(g) without substantial jurisdiction, the court “must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.” Fed. R. Civ. P 26(g)(3).
Rule 37 permits a party to move for sanctions against a party that fails to obey an order to provide or permit discovery. Fed R. Civ. P. 37(b)(2)(A). Upon a motion to compel discovery, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Further, Fed. R. Civ. P. 37(a)(5)(A) provides that if a motion to compel is granted or the disclosure or discovery is provided after the motion was filed, the court must, after giving an opportunity to be heard, require the party whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including the attorney's fees. The Court must not order this payment if the movant filed the motion before attempting in good faith to obtain the discovery; if 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(a)(5)(A)(i)-(iii).
*2 If a party fails to obey an order to provide or permit discovery, the court may issue further orders including:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). Instead of or in addition to these orders, the Court “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).
Rule 11 does not apply to discovery requests, responses, objections, and motions under Rules 26 and 37. Fed. R. Civ. P. 11(d).
B. Discussion
Servpro contends Defendants continue to fail to meet their discovery obligations mandated by the Federal Rules of Civil Procedure as Defendants have missed multiple deadlines to answer Servpro's discovery requests, failed to supplement written discovery, failed to produce relevant documents, failed to serve timely Rule 26 initial disclosures, and were unprepared to discuss key aspects of their counterclaims at deposition. (DN 33, at Page ID # 367.) Servpro requests that the Court deem all objections to the discovery requests waived, deem all admissions admitted, compel revised written responses to requests for production, order an adverse inference regarding the interrogatory responses, limit Defendants to the people and information identified in their initial disclosures, and order Defendants to pay Servpro's costs and fees for bringing this motion and the prior motion to compel. (DN 33, at PageID # 368.) Servpro also requests to be reimbursed “for all actions beyond the basic discovery steps that had to take, including the repeated emails to Defendants, the multiple discovery conferences with the Court and Defendants, and the preparing and filing of this motion.” (DN 33, at Page ID # 386.)
In response, Defendants argue that Plaintiffs are seeking sanctions for failure to produce information or documents that either do not exist or are not in the possession of Defendants. (DN 35, at PageID # 748.) Further, Defendants argue that though they have been “tardy in production of discovery”, they are not currently in violation of any rule or court order. (DN 35, at PageID # 751.) Defendants state they have made a good faith effort to produce the discovery that Servpro has requested. (DN 35, at Page ID # 752.)
1. Timeline
Servpro served its first set of discovery requests to each of the Defendants via email on June 19, 2018. (DN 33, at PageID #368.) Defendants’ deadline to respond was July 19, 2018, but no response was received. Id. On July 24, 2018 Servpro sent an email to Defendants reminding them of the pending discovery requests and that the requests to admit were deemed admitted pursuant to Fed. R. Civ. P 36(a)(3). (DN 33-7, at PageID # 511.) On July 27, 2019 Servpro sent a follow up email. (DN 33-7, at PageID # 513.) On August 3, 2018 Defendants responded that due to a series of personal issues Defendants have been unable to complete discovery responses, but that they would be completed by August 10, 2018. (DN 33-7, at PageID # 514.) No request for extension was made. (DN 33, at PageID #369.)
*3 Pursuant to a meet and confer on August 15, 2018 the parties agreed that Defendant would respond to all outstanding discovery no later than noon eastern time on August 22, 2018. (DN 33-7, at PageID #525.) On August 23, 2018 one day after the discovery responses were due as agreed in the meet and confer, Defendant Blanton served responses only to the request to admit and stated, “Additional replies to follow.” (DN 33-7, at PageID #526; DN 33-11.) On August 24, 2018 Defendant ES served its responses to the requests to admit. (DN 33-7, at PageID # 527; DN 33-13.) On August 28, 2018, Servpro sent another email to Defendants informing them that their responses were deficient, reminding Defendants that they had not served responses to the interrogatories or requests for production and that they had not served Rule 26(a) disclosures. (DN 33-7, at PageID # 528.) On August 30, 2018, Servpro filed a motion asking the Court to compel Defendants to respond to Servpro's discovery requests. (DN 22.) Defendants did not respond to the motion to compel. (DN 33, at PageID # 370.)
On November 13, 2018, Defendants served interrogatory responses. (DN 33-8, at PageID #535.) On November 23, 26, 29 and December 3, 2018 Servpro raised concerns regarding Defendants’ responses to the interrogatories via email and informed Defendants of the deficiencies with the responses, including the fact that the responses did not indicate which Defendant was responding. (DN 33-8, at PageID # 536-545.) On November 27, 2018, Defendants served written responses to document requests and on November 26, 2018 Defendants produced their first document production. (DN 33, at PageID # 370.) On December 3, 2018, Servpro emailed Defendants regarding its concerns as to the document production and written responses. (DN 33-8, at PageID #545.)
This Court conducted a telephonic status conference on December 10, 2018. (DN 27.) On the morning of the telephonic status conference Defendants served their initial disclosures. (DN 33, at PageID #371.) The Court cautioned Defendants to remember their discovery obligations and set a follow-up telephonic status conference for January 3, 2019. (DN 33, at PageID #371.)
On December 18, 2018, and December 28, 2018 Servpro sent further emails about Defendants’ discovery responses. (DN 33-8, at PageID #548, 550, 558.) On January 2, 2019 Defendants responded to Servpro's email. (DN 33-8, at PageID #561.) Prior to the January 3, 2019 status conference with the Court, Defendants agreed to deliver additional responsive documents to Servpro's by January 11, 2019. (DN 33, at PageID # 371.)
On January 3, 2019, the parties informed the Court of these developments and the Court cautioned Defendants a second time to remember their discovery obligations. (DN 30.) The Court scheduled another follow-up TSC for January 14, 2019 and ordered Defendant Blanton to personally participate on the call. (DN 30.)
On January 12, 2019, Defendants served additional documents and supplemental responses to the requests for production on behalf of ES, but not on behalf of Defendant Blanton. (DN 33-8, at PageID #563; DN 33, at PageID # 372.)
During the January 14, 2019 status conference, the Court found Defendants’ non-compliance constituted a violation of the Federal Rules of Civil Procedure and this Court's orders. (DN 31.) The Court authorized Servpro to file a motion for discovery or sanctions after February 1, 2019. (DN 31.) Servpro received additional documents and information from Defendants on February 1, 2019 and Servpro conducted depositions of Defendants on February 11, 2019 and February 12, 2019. (DN 33-8, at PageID #567-568.)
2. Interrogatory Responses
A party responding to interrogatories “must serve its answers and any objections within 30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). An answer to an 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). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4) (emphasis added). Incomplete or evasive answers are treated as a failure to respond. Fed. R. Civ. P. 37(a)(4). “As a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.” Greene v. Cracker Barrel Old Country Store, Inc. 2009 WL 1885641, *2 (W.D. Tenn. July 1, 2009) (citing Blackmond v. UT Medical Group, Inc., 2003 WL 22385678, at *1 (W.D. Tenn. Sept. 17, 2003)).
*4 Servpro contends Defendants did not supplement their interrogatory responses at all. (DN 33, at PageID #374.) Servpro served its first set of interrogatories on June 19, 2018. (DN 33, at PageID #374.) On July 24, 2018, and July 27, 2018 having received no responses, Servpro sent an email informing Defendants they had waived their right to object to the requests. (DN 33-7, at PageID #511.) After meet and confer, Defendants agreed to serve interrogatory responses by August 22, 2018 but Defendants failed to do so. (DN 33-7, at PageID #525.) Defendants did not serve interrogatory responses until November 13, 2018. (DN 33, at PageID #374; DN 33-9.)
Servpro contends Defendants violated Rule 37 because they failed to adequately answer some interrogatories, failed to serve timely responses, and failed to supplement their responses. Therefore, Servpro moves for Defendants’ objections to the interrogatories to be “omitted”, that Defendants’ non-responses be construed in Servpro's favor and that Servpro be compensated for its fees in pursuing the interrogatory responses. (DN 33, at PageID # 376.)
The Court notes that DN 33-9 is titled “Defendant's Response to Servpro's First Set of Interrogatories,” but does not specify which of the Defendants is responding.
The Court addresses each interrogatory and response at issue as follows:
No. 1: Identify each instance when anyone has contacted you and asked whether you are or are related to or affiliated with Servpro or a Servpro franchise since January 1, 2015, and for each instance explain whether or how you clarified that you are not a Servpro franchise.
Defendant's response: The defendant has no records for incoming calls from callers who asked if Emergency Services was affiliated with ServPro. If consumers asked whether Emergency Services was Servpro, they were told that Emergency Services was not Servpro. The defendant is aware that Servpro representatives called Emergency Services pretending to be consumers, although there is no record of the calls and Emergency Services cannot identify the time of the calls.
(DN 33-9, at PageID #570.) Servpro argues Defendant's response is inadequate because Servpro has gathered evidence showing that Defendants knew or should have known that customers mistook Defendants for Servpro. (DN 33, at PageID # 375.)
In response, Defendants argue that either Plaintiff's “lawyer or investigators have asked potential witnesses, some of whom owe money to Emergency Services, leading questions implying that they may have mistaken Emergency Services for Servpro.” (DN 35, at PageID #748.) Defendants argue that even if some witnesses make statements alleging confusion, this does not constitute a breach of Defendants’ discovery obligations.
In reply, Plaintiff evidences a declaration from a customer containing statements that Mr. Blanton had represented himself as Servpro to the customer and that Defendants were copied on an email stating as much. (DN 37-4.) Plaintiffs state that similar stories unfolded from other witnesses but none of those witnesses were identified by Defendants in their response to Interrogatory No. 1. (DN 37, at PageID # 758.)
The Court finds that Plaintiffs have evidenced Defendants provided an evasive or incomplete response; thus, pursuant to Fed. R. Civ. P. 37(a)(4) the Court treats this as a failure to respond. Accordingly, the Court orders Defendant to provide a supplemental response to Interrogatory No. 1 for both Defendant Blanton and Defendant ES without objection.
No. 2: Identify and explain each instance when you have used the term “Servpro” since January 1, 2015.
*5 Response: Objection overly broad.
(DN 33-9, at PageID #571.) Servpro argues Defendants used the term “Servpro” in advertisements, in their website domain name, and in the text of previous website iterations. (DN 33, at PageID # 375.)
In response, Defendants argue that the interrogatory is “ridiculously broad and impossible to completely answer.” (DN 35, at PageID #748.) Defendants state they have not used the term “Servpro” in any other advertising and Defendant contends there is a factual disagreement between Plaintiffs use of the term “website domain name.” (DN 35, at PageID #748.)
In reply, Plaintiffs argue that Defendants’ objection that the request is overbroad is untimely. Further, Plaintiffs argue Defendants failed to produce a copy of a previous iteration of their website which would have been responsive to the request. (DN 37, at PageID # 758, DN 37-5.)
The Court finds that Defendants’ objection is untimely pursuant to Fed. R. Civ. P 33(b)(2) and 33(b)(4) as the responses were served more than four months after the statutory deadline. Plaintiffs have evidenced Defendants provided an incomplete response, thus pursuant to Fed. R. Civ. P. 37 (a)(4) the Court treats this as a failure to respond.
Accordingly, the Court orders Defendants to provide a supplemental response to Interrogatory No. 2 for both Defendant Blanton and Defendant ES without objection.
No. 3: Explain the nature of the project you are working on for the American Red Cross in Louisville, Kentucky, including how you learned of the project, how and why you bid on the project, who you interacted with in bidding on the project and in being award [sic] the project, the initial scope of the project, the work you have done on the project, any work you were supposed to do on the project but have not completed, the initial bid price of the project and how much you have charged, been paid, and are owed on the project, and all representations you made to the American Red Cross in apply[ing] for and securing the project. This response should explain whether you held yourself out as or otherwise indicated to the American Red Cross that you are associated in any way with Servpro.
Response: Defendant learned of the project via a phone call to Emergency Services. Defendant did not bid on the project. There was no initial scope of the project. This scope is not in written form. The American Red Cross and Representatives of the American Red Cross Insurance company walked the project, audited the project and were satisfied that all work was completed. There was no initial bid price of the project, Defendant has been charged nothing, it is arguable if defendant is owed anything. Defendant offered a free evaluation roughly 60-90 minutes after the phone call, Emergency Services Representatives wore Emergency Services Blue and white apparel during the evaluation. Emergency Services wore Emergency Services Identity badge during the Evaluation. Emergency Services Representatives handed out Emergency Services business cards during the Evaluation. The Evaluation lasted approximately 60-90 minutes between Emergency Services Representatives and American Red Cross Representatives. Following the Evaluation Emergency Services offered further services of mitigation. An Emergency Services Mitigation Contract was then engaged by the American Red Cross Representatives. Approximately six to eight weeks later the American Red Cross Representatives solicited Emergency Services for Restoration of the property via a phone call. The American Red Cross Entered Emergency Services as an approved vendor of their entity. This process included Emergency Services providing Corporation Information for the application. Such as, Emergency Services Employment Identification Number and Emergency Services Proof of Insurance. Approximately two to three weeks later the American Red Cross Contracted Emergency Services via phone call to engage restoration services of the property. The American Red Cross, and the American Red Cross’ Insurance Company, made payments prior to engaging into a restoration contract with Emergency Services to Emergency Services LLC Directly for Mitigation Services.
*6 (DN 33-9, at PageID #571-572.) Plaintiffs argue the response is incomplete since Defendants were paid between $500,000 and $800,000 by the American Red Cross, but this information was not included in Defendants’ response. (DN 33, at PageID # 375.)
In response Defendants contend that Plaintiffs clearly have all of the information about the job at the American Red Cross, including financial and work documents. (DN 35, at PageID # 749.) Further, Defendants argue Plaintiffs asked extensive questions regarding this topic in Defendants’ deposition. (DN 35, at PageID # 749.) However, Defendants do not cite to relevant portions of a deposition transcript to substantiate this claim.
In reply, Plaintiffs argue Defendants’ response failed to include the names of Red Cross employees with whom Defendants interacted, the initial price quoted to the Red Cross, payments and debts owed to Defendants. (DN 33-9 at 2; DN 37, at PageID #758.)
The Court finds Plaintiffs have evidenced Defendants provided an incomplete response since Defendants did not address the initial price, and whom Defendants interacted with in bidding on the project. Accordingly, the Court orders Defendants to provide a supplemental response to Interrogatory No. 3 for both Defendant Blanton and Defendant ES without objection.
No. 4: Explain your internet marketing efforts for the Accused Website since January 1, 2015, including all keywords, tags, metatags, ad words, advertisements, search engine optimization, dynamic word insertion, Display Ads, or AdWords ad purchased, bid on, or used by oron [sic] behalf of the Accused Website. This response should discuss whether you have ever used or purchased the word “Servpro” in any such efforts.
Response: Emergency Services, LLC purchased the location Servpro.click in November of 2017 from Cheapnames.com for $6. The location was populated with a Website produced from a stock template from Sitebuilders.com on Dec. 27, 2017. A landing page was created by filling in the template. The landing page was written with language directed at Google Optimization engines. Emergency Services used a company named Wordstream to help build a lead generation company using Google optimization. Wordstream helped create call only ads and Ad[W]ords advertisements. Those Advertisements were placed with Google.
(DN 33-9, at PageID # 572.) Plaintiff argues Defendants’ response was inadequate because Defendants’ website directly copies Servpro's website. (DN 33, at PageID # 375.)
With regards to request No. 4, Defendants state they have provided the website page and how it was purchased and constructed. (DN 35, at PageID #749.) Defendants argue Plaintiffs questioned Defendant at extreme length about the website in his depositions and he answered the questions. (DN 35, at PageID # 749.) However, Defendants do not provide deposition transcripts to support their arguments.
In reply, Plaintiffs argue that deposition testimony does not stand in for Defendants’ interrogatory response. (DN 37, at PageID #758.) Plaintiffs argue Defendants should have discussed ads that Plaintiffs and other witnesses discovered. (DN 37, at PageID # 758.)
The Court finds Defendants response satisfactory as it is not evasive or incomplete and it answers the call of the question. Accordingly the Court does not order Defendants to provide a supplemental response to interrogatory No. 4.
*7 No. 5: Identify and explain the facts supporting each affirmative defense raised in your answer or counterclaim against Servpro. (D.E. 15.)
Response: Discovery is on going and the defendant has not yet collected the information necessary to state facts supporting its affirmative defenses beyond what is stated in the Counterclaim and Answer[.]
(DN 33-9, at PageID #573.) Plaintiffs argues the response is inadequate because Defendants provided no information about their counterclaims. (DN 33, at PageID #375.) Plaintiffs argue in reply that Defendants response was not supplemented before the close of discovery. (DN 37, at PageID #758.)
The Court finds Plaintiffs have evidenced Defendants provided an incomplete response, thus pursuant to Fed. R. Civ. P. 37 (a)(4) the Court treats this as a failure to respond. The Court reminds Defendants that the plausibility standard of Bell Atlantic Corp v. Twombly, 550 U.S. 544, 559 (2007) applies to both plaintiffs and defendants asserting affirmative defenses. Shinew v. Wszola, 2009 WL 1076279, at *5 (E.D. Mich. April 21, 2009.) Wholly conclusory affirmative defenses are not sufficient. U.S. v. Quadrini, 2007 WL 4303213, at *4 (E.D. Mich. December 6, 2007.)
Accordingly, the Court orders Defendants to provide a supplemental response to Interrogatory No. 5 for both Defendant Blanton and Defendant ES without objection.
No. 6: Identify each project you have worked on since January 1, 2015, including the requested services, the name and contact information of the person or entity requesting services, the location where the services were rendered, and the amount you charged to the person or entity who retained you.
Response: Since December of 2017 Emergency Services has only worked on the project at The Nine and the American Red Cross. See defendant's responses to request for production for a list.
(DN 33-9, at PageID #573.) Plaintiffs argue the Defendant's response is inadequate because Defendants only admitted to the projects Servpro already knew about, even though Defendants have now admitted to working on other projects as reflected in their belatedly produced documents. (DN 33, at PageID # 375.)
In response, Defendants argue that Plaintiffs questioned the defendant extensively about every one of these projects during the defendant's deposition, including the financial information about each project. (DN 35, at PageID # 749.) Defendants argue Plaintiffs have the information regarding the projects undertaken since December 2017. (DN 35, at PageID #748.)
In reply, Plaintiffs argue that the interrogatory requested information from January 1, 2015, but Defendants only referenced two jobs since December of 2017 and then directed Servpro to a list; however, it is unclear which list the response refers to. (DN 37, at PageID # 759.)
Fed. R. Civ. P. 33(d) sets forth the option to produce business records however the rule requires the responding party to 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”. Fed. R. Civ. P. 33(d)(1). The Court finds Defendants failed to identify with any detail the documents in response to the request for production that are also responsive to the interrogatory at issue.
*8 The Court finds Plaintiffs have evidenced Defendants provided an incomplete or evasive response, thus pursuant to Fed. R. Civ. P. 37 (a)(4) the Court treats this as a failure to respond. Accordingly, the Court orders Defendants to provide a supplemental response to interrogatory No. 6 for both Defendant Blanton and Defendant ES without objection.
No. 7: Explain in detail the claim or claims made against Servpro in your counterclaim, including what cause of action you are bringing against Servpro and the legal and factual basis for the damages theory or theories regarding your counterclaim against Servpro, including all facts that support your damages theory, the legal basis (cases and statutes) for the damages theory, and how the facts apply in the context of the law to constitute damages to you and liability against Servpro.
Response: The Claims made against Servpro are stated in the Counter Claim. Servpro, through as yet unidentified franchisee or employee, interfered or attempted to interfere with the contractual or business relationship of Emergency Services with The Nine, the American Red Cross, and yet unidentified customers. Causes of action include tortious interference with contract and defamation. Discovery is ongoing.
(DN 33-9, at PageID #574.) Plaintiff argues the response is inadequate as Defendants have not provided any explanation of their counterclaims. (DN 33, at PageID # 375.) Defendants’ response does not address this interrogatory.
At issue is a contention interrogatory. A contention interrogatory seeks to clarify the basis for or scope of an adversary's legal claims. Myers v. Anthem Life Ins. Co., 316 F.R.D. 186, 198 (W.D. Ky. 2016). The general view is that a contention interrogatory is a perfectly permissible form of discovery, to which a response ordinarily would be required. Id. While recognizing the impossibility of fully answering contention interrogatories at the outset of discovery, courts rely on compliance with the 26(e) duty to supplement to inform opposing counsel of the allegations they face. U.S. ex rel. Nat. Res. Def. Council v. Lockheed Martin Corp., No. 5:99-CV-170, 2014 WL 6909652, at *4-5 (W.D. Ky. Dec. 8, 2014).
The Court finds Plaintiffs have evidenced Defendants provided an incomplete response, thus pursuant to Fed. R. Civ. P. 37 (a)(4) the Court treats this as a failure to respond. Accordingly, the Court orders Defendant to provide a supplemental response to interrogatory No. 7 for both Defendant Blanton and Defendant ES.
In summary, based on the responses to the foregoing interrogatories, the Court finds Defendants are in violation of their obligations under Rule 26(g) and are subject to sanctions for improper certification as Plaintiff evidences the discovery responses to the interrogatories were not “complete and correct as of the time [they were] made”. Further, the Court finds Defendants are in violation of Rule 37(b)(2) as they have violated the Court's January 8, 2019 order stating, “defendants SHALL adequately supplement their discovery responses by 5:00 p.m. on Friday, January 11.” (DN 30, at PageID #362.) Defendants further violated the Court's January 18, 2019 order providing the “defendants SHALL adequately supplement their discovery responses by 5:00 p.m. on Friday, February 1, 2019.” (DN 31, at PageID #364.) Defendants did not supplement their interrogatory responses at all and Defendants have not provided substantial justification for their failure to do so. (DN 37, at PageID #754.) Accordingly, Defendants are also in violation of Rule 37(c)(1) for their failure to supplement an earlier response.
*9 Based on the foregoing, the Court orders Defendants to pay the attorney's fees incurred by Plaintiffs in bringing the instant motion. Servpro's counsel is ordered to submit billing records and corresponding declarations evidencing time spent on the instant motion by November 15, 2019. Defendants may to respond to the amount requested by Plaintiffs by November 30, 2019. This response should only address the amount claimed by Servpro and the sufficiency of the itemization. Defendants are ordered to supplement their responses to interrogatories No. 1-3, and 5-7 for both Defendant Blanton and Defendant ES by November 15, 2019 without objections.
3. Counterclaims
Servpro argues that Defendants’ failure to adequately respond to Interrogatory No. 7 is part of a larger pattern amounting to Defendants’ failure to pursue its counterclaims. Servpro argues that though Defendants have asserted counterclaims against Servpro for tortious interference with contract, defamation, unfair competition and punitive damages (DN 15, at PageID #80), Defendants have not pursued these claims or sought discovery regarding these claims. (DN 33, at PageID # 385.)
Servpro contends that when it tried to question both Defendants about the bases for the counterclaims at deposition, the Defendants were unprepared to discuss the counterclaims. Servpro cites to the relevant portions of the deposition transcript to support its argument; Fair Use (DN 37-1 at 8:22-9:4); First Sale (DN 37-1 at 10:16-22); Functionality (DN 37-1 at 11:7-24); Innocent Infringer (DN 37-1 at 11:25-12:11); Secondary Meaning (DN 37-1 at 19:9-20:5); Waiver, Acquiescence, Estoppel (DN 37-1 at 20:6-21:3); Non-infringement (DN 37-1 at 21:4-9); Failure to mitigate (DN 37-1 at 32:11-20); First Amendment (DN 37-1 at 32:21-35:14). In their interrogatory responses Defendants stated that discovery is ongoing in response to contention interrogatories No. 5 and No. 7. (DN 33-9, at PageID # 573, 574.) However, Servpro argues that the deadline to serve written discovery requests closed on March 11, 2018. (DN 33, at PageID #385.) Servpro moves the Court to dismiss Defendants’ counterclaims and affirmative defenses pursuant to Fed. R. Civ. P 37(b)(2)(A)(ii).
In response, Defendants argue that the request to dismiss is not supported by case law since Defendants are “not required to conduct discovery as part of its counter claim and no rule mandates it.” (DN 35, at PageID #751.) Defendants state they will supplement their disclosures if and when they discover additional witnesses. Id.
In reply, Plaintiffs argue the discovery period has now closed, and Defendants never pursued the discovery they claimed to be seeking as they never served a single discovery request on Servpro, never notified Servpro of any third-party subpoenas, did not take depositions, and did not suggest third-party discovery in their initial disclosures. (DN 37, at PageID # 756.) The supplemental disclosure deadline was March 18, 2019. (DN 28, at PageID #359.) Plaintiffs argue that when a party is asked to respond to discovery and the party refuses to respond, then the party's intransigence is sanctionable conduct under Fed. R. Civ. P 37(c)(1).
The Court notes that the ES deposition transcript regarding whether Defendants were prepared to discuss the counterclaims essentially asks Mr. Blanton the basis for his counterclaims and affirmative defenses using almost exclusively legal jargon. By way of example, on February 12, 2019 at the Deposition for ES counsel asked Mr. Blanton,
Q: Okay. Topic Number 12, what is Emergency Services’ basis for its arguments and/or affirmative defenses that Servpro's mark lacks secondary meaning?
*10 A: We reviewed secondary meaning. I just don't technically recall and I'm getting a little confused.
Q: Well, did you speak with your counsel about the meaning of secondary meaning?
A: Yes, we did.
Q: Okay. And what is the meaning of secondary meaning?
A: That's what I said. I'm getting it confused at this time. I'm not entirely sure.
Q: Okay. So what is ES’ basis for its affirmative defense that Servpro's marks lack secondary meaning?
A: If I'm unsure about the meaning, I can't communicate what our basis for that would be.
Q: Okay. So how can Servpro determine Emergency Services’ basis for its affirmative defense of secondary meaning?
A: Well, I'm sure we'll have discovery and we can present that...
(DN 37 at 19:9-20:5.) The deposition transcript goes on, but Plaintiffs counsel has sufficiently proven that Mr. Blanton is not an attorney. Mr. Blanton stated multiple times throughout the deposition cited above that discovery was ongoing. However, Servpro did not seek to reopen Defendants’ depositions.
Instead Servpro's arguments address the sufficiency of the evidence to support Defendants’ counterclaims and affirmative defenses. However a motion for sanctions is not the proper avenue for weighing the evidence. The Court recognizes Defendants’ failure to supplement its interrogatory responses is a violation of Rule 37(c)(1) as addressed above and accordingly has ordered Defendants to pay for reasonable attorney's fees for bringing the instant motion. The Court is not persuaded by Plaintiffs that Defendants should be sanctioned for failing to take discovery for their counterclaims by having the counterclaims dismissed outright.[1]
4. Requests for Production (“RFPs”)
A party responding to a request for production must respond in writing within 30 days. Fed. R. Civ. P 34(b)(2)(A). For requests for production, failure to timely object results in a waiver of the objection. Gonzalez, Jr. v. Ohio Casualty Insurance Co., 2008 WL 795757, *1 (E.D. Mich. March 25, 2008.) Courts will examine the circumstances of each case to determine whether enforcement of the waiver is equitable, including the reason for tardy compliance, prejudice to the opposing party and the facial propriety of the discovery requests. Id.
Servpro contends Defendants failed to serve written responses to document requests until they were 132 days overdue, despite multiple reminders from Servpro. (DN 33, at PageID #376.) Servpro notified Defendants they had waived their right to object to requests for production (DN 22 at 4); however when Defendants finally served their overdue written responses, they included dozens of objections. (DN 33, at PageID # 376.) Servpro argues Defendants should be required to serve responses to the requests for production without objection and identify each document produced in response to the requests. (DN 33, at PageID # 376.)
Defendant Blanton's Response to Requests for Production are attached as DN 33-10, however Defendant ES did not serve responses to the requests for production. Defendants do not address their failure to timely respond. Defendants have not shown good cause for why the Court should relieve Defendant of the consequences of its waiver. Defendants have not shown how they will be prejudiced by waiving their objections.
*11 The Court finds Defendant Blanton's objections are deficient because they lack specificity. Defendant Blanton objected to RFPs Nos. 3, 5, 6, simply by stating “over broad”, and Nos. 1 and 2 by stating “vague.” Even if timely raised “the objections amount to inappropriate boilerplate objections stated without the requisite specific and should be overruled as a matter of course.” See Duracore Pty. Ltd. v. Applied Concrete Tech., Inc., 2015 WL 4750936, *6 (W.D. Ky. Aug. 11, 2015).
The Court finds the general objections were not applied with sufficient specificity to enable the Court to evaluate their merits; they amount to boilerplate. The Court finds Defendants have waived their objections due to their failure to timely serve responses to the requests for production.
A party must produce requested documents “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P 34(b)(2)(E)(ii). A responding party “must produce documents as they are kept in the usual course of business or organize and label them to correspond to the categories in the request.” Fed. R. Civ. P 34(b)(2)(E)(i). Rule 34 advises that parties “need not produce the same electronically stored information in more than one form.” Fed. R. Civ P 37(b)(2)(E)(iii).
Servpro argues Defendants failed to produce any documents showing their profits and losses. (DN 33, at PageID # 376.) Specifically, Servpro requested documents sufficient to identify Defendants revenue, profit and expenses (RFP Nos. 4, 54, 58, 59), Defendants taxes (RFP No. 56) and Defendants’ audited financial statements (RFP No. 57.) (DN 33-2) Servpro contends no responsive documents were produced. (DN 33, at PageID #377.)
At issue are the following requests and responses:
RFP No. 4. Documents sufficient to document and identify each job, task, project or service offered for performed by Defendant since January 1, 2015.
Response: Objection. Emergency Services did not exist until 2017. Without waiving said objection, no documents exist.
RFP No. 54: Documents sufficient to show Defendant's annual revenue for the years 2015, 2016, 2017 and 2018.
Response: Emergency Services did not exist until 2017. Defendant is not currently in possession of requested documents, but will supplement when documents are available.
RFP No. 56: Defendant's federal and state tax returns for the year 2015, 2016, 2017 and 2018.
Response: Objection. Defendant claims a privilege not to disclose. Additionally, no such documents exist prior to 2017 for Emergency Services.
RFP No. 57: Defendant's audited financial statements for the years 2015, 2016, 2017 and 2018.
Response: None.
RFP No. 58: Documents sufficient to show Defendant's costs, expenses, and other deductions for the years 2015, 2016, 2017 and 2018.
Response: Emergency Services did not exist until 2017. Defendant is not currently in possession of requested documents, but will supplement when documents are available.
RFP No. 59: Defendant's profit and loss statements for the years 2015, 2016, 2017, and 2018.
Response: Emergency Services did not exist until 2017. Defendant is not currently in possession of requested documents, but will supplement when documents are available.
(DN 33-10.) In response, Defendants argue that they have produced multiple documents showing financial information for businesses that existed prior to July 2017. (DN 35, at PageID #749.) Additionally, the Defendants argue they produced bank records of Emergency Services and Defendant Blanton was questioned about those records at his deposition. (DN 35, at PageID #750.) Further, Defendants argue that no tax returns have been filed for the period requested and that no audited financial statements exist. (DN 35, at PageID #750.) Defendant also argues that a large amount of documents that had originally been part of a bankruptcy were given to an accountant to produce financial statements and tax returns, but the accountant did not perform those tasks. (DN 35, at PageID # 751.) It is unclear if Defendants represent the accountant did not find the tax returns in the various bankruptcy documents, did not prepare tax returns based off the documents, or why tax returns and other financial statements do not “exist” if they were given to an accountant.
*12 Defendants have not convinced the Court that the documents in question do not exist and Defendants have not provided evidence of a diligent search for the responsive documents. Further, the Court reminds Defendants “documents will be within the possession, custody or control of a responding party, for discovery purposes, if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand; legal ownership of the document is not determinative.” Gluc v. Prudential Life Ins. Co. of America 309 F.R.D. 406, 416 (W.D. Ky. 2015.)
Further, Servpro argues it requested documents pertaining to Defendants’ advertising and use of the Servpro name. (DN 33-10 Nos. 5, 26-28, 31, 35, 49, 61.) Servpro argues Defendants admitted that they used the Servpro name, but they did not provide any evidence of their use. (DN 37-2 at 75:9-77:13; 45:20-25.)
Next Servpro says it requested documents pertaining to traffic to the allegedly infringing website, and other infringing online uses, but none have been produced. (DN 33-10, RFP Nos. 27, 29, 33.) Defendant Blanton stated at deposition that the requested information had been available from the service provider when this lawsuit was filed but that it is no longer available and he did not save a copy of it. (DN 37-2 at 45:22-46:6; DN 37-1 at 55:5-17.) Further, Defendant ES also admitted it had not instituted a litigation hold procedure sufficient to keep information related to the website or to Google AdWords, such that Defendants are unable to access data pertaining to their infringing ads and website. (DN 37-1 at 72:13-73:25.) As Servpro states in reply, Defendants do not address Plaintiff's argument regarding the Google AdWords related documents. (DN 37, at PageID # 755).
The relevant deposition excerpt provides,
Q: After receiving a copy of the complaint, did Emergency Services institute a litigation hold?
A: I'm not 100 percent familiar with litigation hold technology.
Q: It's a process by which no documents are lost or destroyed.
A: Yes. That's why we took the memo of the January data and we did not destroy anything. In fact, we started collecting.
Q: Okay. How about the December data? Is that – that was available at the time; correct?
A: No. It was already gone. That's why we only had January.
Q: Okay. How about February data?
A: I didn't – I guess we didn't see a point in it because we weren't using it and nothing was happening with it so. And by that point we had already seen and looked at the data. We knew that it was just Servpro going to Servpro.click, so I'm sure that probably still holds true.
Q: Right. But my question is: Do you have a report for February of 2018 for landings on Servpro.click?
A: No, I don't.
Q: Okay. It was available at one time; correct?
A: I guess it would have been.
Q: Okay. Same question with respect to damage.click.
A: I guess I was unaware that I needed to keep collecting all data forevermore. I thought it referred to the past.
Q: What other documents could have been lost or were lost?
A: As far as I know, we didn't lose anything else.
Q: How about Google AdWords?
A: Like I said, I don't’ even know the log-in for Servpro.click. So I don't – I can't even get to it if I wanted to. And it doesn't exist. It erases almost daily, so I don't—
Q: Well, okay. So – so Goodgle AdWord reports for December of 2017, where is that?
A: We don't have it. Didn't have it at the time of the lawsuit.
(DN 37-1 at 72:7-73:25.) Servpro moves for an order that Defendants are barred from putting forth additional revenue, profit and expense numbers, and that the number put forth by Servpro be given the presumption of accuracy. (DN 33, at PageID # 377.) Servpro also moves for an order that the jury be allowed to assume that all Google advertising by Defendants included Servpro's name. (DN 33, at PageID # 378.)
*13 Based on the foregoing, the Court orders Defendants to supplement their responses to the request for production for both Defendant Blanton and Defendant ES by November 15, 2019 without objections. Defendants are ordered to list the Bates number of each corresponding document below each response. If Defendants have any supplemental documents they must be served on Plaintiffs by November 30, 2019. If the documents in question do not exist the Court requires a signed affidavit explaining why each request does not exist, if the document once existed and was lost or destroyed or is no longer available, and details regarding the search performed by each Defendant for the requested documents. Weber Mfg. Techs., Inc. v. Plasan Carbon Composites, Inc. 2016 WL 8114507, at *6 (E.D. Mich. July 26, 2016.) The Court acknowledges Servpro's request for a jury instruction that between December 2017 and February 2018 all Google AdWords reports by Defendants included Servpro's name. However, the undersigned does not rule on the merits of this request as this request is more appropriate for a motion in limine before the presiding District Judge.
Servpro also argues Defendants produced documents in a format unusable and unreadable by Servpro as they were in the “.esx” format. (DN 33, at PageID # 378.) At deposition, Defendants explained that this format is for Xactimate files, which Defendant used for some restoration jobs for Emergency Services. (DN 37-2 at 8:24-10:18; 12:15-23) Servpro argues that the “.esx” files are not in the form in which they are ordinarily maintained because the documents are read with Xactimate and they are not “reasonably usable” because Servpro's counsel is unable to open them given that counsel does not want to purchase a subscription. (DN 33, at PageID #378)
Next, Servpro argues that Defendant ES asserted in its deposition testimony that the “.esx” files were produced as duplicates of the job files. (DN 37-1 at 81:5-23; 103:3-24.) Servpro argues that Defendant ES's production of the same documents in multiple formats is a breach of Rule 37 because it failed to produce documents as requested under Rule 34. Fed. R. Civ. P 37(a)(3)(B)(iv) and Servpro argues it should be compensated for having to sort through Defendants’ document production. (DN 33, at PageID # 379.)
In response, Defendants contend that they are incompliance with FRCP 34(b)(2)(E)(ii) because the documents were produced in the exact manner in which they were ordinarily maintained. (DN 35, at PageID #751.) Second, Defendants argue that Xactimate is an extremely common software used in Servpro's industry and counsel can open the documents by subscribing to Xactimate or by having Servpro open the files using its own subscription. (DN 35, at PageID #750.) Defendants further argue that Mr. Blanton did not testify that Xactimate files were complete duplicates of the job files, but instead that some of the job files had printed and copied Xactimate documents. (DN 35, at PageID #750.) The relevant portion of the deposition transcript reads:
Q: Okay. And again, the Xactimate documents are documents that cannot be opened up without an Xactimate subscription?
A: No. This isn't – we provided the Xactimate and then we provided the full job file full of over 100 photographs, Xactimate files, communications and copies of the check.
Q: But the Xactimate files would show the revenue and expenses; right?
A: Which are PDF in the actual job file, as well as the ESX was provided as well.
(DN 37-1 at 81:8-18.) In reply, Plaintiffs argue that even if Servpro does have an Xactimate license, it would be a violation of the license for counsel to use it and Defendants had the option to print all Xactimate files to PDF, but they did not do so for all of the files. (DN 37, at PageID #760.) Further Plaintiffs argue that the Court's scheduling order specifically provides that the parties are to produce documents in PDF format or TIFF format with OCR or OCR files, except that photographs may be produced as JPEGs or TIFF images, videos may be produced as QuickTime or MP4 videos, and Excel spreadsheets may be produced as .xls or .xlsx files. (DN 21, at PageID # 108.)
*14 The Court notes that Servpro's argument that Defendants produced the .esx files in a duplicate format besides the .esx file undercuts its other argument that Defendants produced the documents in an unusable format. However, it is unclear based on the above arguments whether Defendants provided duplicates of all the .esx files in PDF format.
Pursuant to the Court's instruction in DN 21, Defendants are ordered to produce all information in the .esx files in PDF format or TIFF format with OCR or OCR files to Plaintiffs by November 30, 2019.
Next, Servpro argues that the documents produced by Defendants were not produced in the usual course of business because they were Defendants’ accountants’ records, they were produced over the course of four months and there appeared to be no method of organization. (DN 33, at PageID # 379.)
In response, Defendants argue that the documents were given to an accountant who was supposed to produce financial statements and tax returns but did not. (DN 35, at PageID #751.) The documents were retrieved by the defendant with permission of the bankruptcy court but were in dozens of banker boxes and were not well organized. (DN 35, at PageID #751.) Defendants contend that documents were scanned by Mr. Blanton and his staff, and “despite the disorganized status of the documents, defendants produced them in an orderly fashion.” (DN 35, at PageID # 751.)
Pursuant to Rule 34(2)(E)(i), “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Defendants do not contend that the documents are kept in the usual course of business in the manner they were produced, but Defendants state the documents were in dozens and dozens of banker boxes after being retrieved from an accountant. (DN 35, at PageID #751.)
Accordingly, the Court orders Defendants to pay the cost of Servpro's counsel's staff time expended in organizing the document production. Servpro's counsel is ordered to submit billing records and corresponding declarations evidencing time spent by paralegals and support staff to organize the document production by November 15, 2019. Defendants may to respond to the amount requested by Plaintiffs by November 30, 2019. This response should only address the amount claimed by Servpro and the sufficiency of the itemization.
5. Requests for Admission (“RFA”)
Requests for admission are deemed “admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed. R. Civ. P 36(a)(3). Rule 36 requires a party to “specifically deny or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter, the answer must specify the part admitted and qualify or deny the rest.” Fed. R. Civ. P 36(a)(4). A party responding to a request to admit also must state the grounds for objection. Fed. R. Civ. P 36(a)(5). “A party must not object solely on the ground that the request presents a genuine issue for trial.” Fed. R. Civ. P 36(a)(5). “If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it.” Fed. R. Civ. P 36(a)(4). For any denial based on lack of information, the responding party must “state that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4).
*15 Servpro argues that Defendants waived their right to object to requests for admission as the responses were untimely. (DN 33, at PageID # 380.) Servpro argues Defendants failed to respond timely to the requests to admit prior to July 19, 2018 and Servpro notified Defendants that it considered their requests to have been deemed admitted on July 24, 2018. (DN 33, at PageID # 380.) Pursuant to a meet and confer, Defendants were supposed to respond to all outstanding discovery no later than noon eastern time on August 22, 2018. (DN 33-7, at PageID #525.) Nonetheless Defendants served responses to the requests to admit on August 23, 2018 and August 24, 2018. (DN 33, at PageID # 380.) Servpro requests that all of Defendants’ responses to requests to admit be deemed admitted and that Servpro be compensated for its fees in pursuing these admissions. (DN 33, at PageID # 380, 382.)
In the alternative, Servpro is entitled to ask the Court to determine the sufficiency of Defendants’ answer or objections. Fed. R. Civ. P 36(a)(6). Servpro contends that Blanton's responses to the requests to admit are insufficient because the he asserts a “general objection” to every RFA submitted by Plaintiffs. It reads:
The requests are not consistent with the meaning and purpose of Fed. R. Civ. P. 36(a)(1)(A). The rule ‘is intended to facilitate proof at trials by obviating the need to adduce testimony or documents as to matters that are really not in controversy’ United States v. Petroll-Kline (557 F.3d, 6th Cir. 2009). Every request by the plaintiff seeks an admission of an irrelevant fact, or requires the defendant to make a legal conclusion or respond to a matter that is clearly disputed.
(DN 33-11, at PageID # 6843.) Servpro also argues that in response to 29 requests, Blanton merely referenced its response to an earlier request, which also made non-specific objections. (DN 33, at PageID #381.) Servpro argues that for every objected-to request, Blanton failed to provide any explanation as to why the objection applied to that particular request and so the objections are insufficient. (DN 33, at PageID #381.) Also, Servpro contends that Blanton responded to many requests asserting that he lacked the information to confirm or deny, without stating whether or not he made a reasonable inquiry. (DN 33, at PageID # 382.)
Servpro also contends that the same concerns arise with ES's response to the requests to admit because ES cited the same improper ‘general objection’ (DN 33-13, at PageID #709), ES failed to explain why the objection applied to the particular request, and ES failed to timely respond to the requests to admit. (DN 33, at Page # 382.) Servpro also argues that for 29 of its responses to the requests, ES merely referenced its response to an earlier request. (DN 33, at PageID # 382.)
As pointed out by Servpro in reply, Defendants response did not address Plaintiffs argument that the requests for admission should be deemed admitted. (DN 37, at PageID #755.)
Based on the foregoing, the Court finds Defendants’ objections to be without merit as “a party must not object solely on the ground that the request presents a genuine issue for trial.” Fed. R. Civ. P 36(a)(5). The Court finds Defendants responses untimely even pursuant to the meet and confer deadline of August 22, 2018. (DN 33-7, at PageID #525.) The responses were not sent for Defendant Blanton until August 23, 2018 and the responses were not sent for Defendant ES until August 24, 2018. (DN 33-11; DN 33-13.) Though Defendants missed the deadline to serve responses to the requests for admission by one day for Defendant Blanton and two days for Defendant ES, this was after Defendants had already failed to respond to the original deadline of July 19, 2018 and Defendants promised deadline of August 10, 2018. Due to Defendants’ myriad failures to serve timely responses to the requests for admission, the Court deems the request for admissions admitted against Defendants. Fed. R. Civ. P. 36 (a)(3).
6. First Motion to Compel
*16 Rule 37 provides, “If the motion is granted ... the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5).
Servpro also moves for the Court to “revive” its first motion to compel (DN 22) to the extent necessary to qualify for compensation. (DN 33, at PageID # 383.) Though Defendants never responded to the motion, the Court held the motion moot in light of subsequent proceedings. (DN 28.) Servpro argues that Defendants did not explain why they did not respond timely, supplement discovery responses, or respond to the motion to compel such that Servpro should be granted its fees for bringing the original motion to compel. (DN 33, at PageID #383.)
As stated by Plaintiffs in their reply, Defendants did not address their failure to respond to the first motion to compel. (DN 37, at PageID #755.)
Servpro's motion to compel was denied without prejudice on December 21, 2018. (DN 28, at PageID # 359.) Servpro did not refile the motion to compel after the denial without prejudice and after Defendants failed to provide responses before the fact discovery deadline. Plaintiffs cite no case authority or statutory basis for “reviving” a denied motion to compel so that Plaintiffs’ attorneys can collect their fees retroactively. The Court has already awarded Plaintiffs’ counsel fees regarding the instant motion in the above section. Accordingly, the motion to “revive” DN 22 as briefed in Servpro's motion for sanctions (DN 33) is denied.
7. Initial Disclosures
Initial disclosures must be made “without awaiting a discovery request” and “at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order.” Fed. R. Civ. P 26(a)(1)(A). Rule 37 prohibits a party who fails to provide information as required by Rule 26(a) from using that information “to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P 37(c)(1).
The parties conducted their Rule 26 planning conference on June 18, 2018 and the initial disclosure deadline was July 13, 2018. (DN 20; DN 21.) Defendants did not serve their initial disclosures until 151 days after they were due. (DN 33 at PageID #383.) Servpro argues the Defendants’ disclosures failed to include multiple witnesses identified by Defendants in deposition testimony and in correspondence. (DN 33-8, at PageID # 561; DN 37-1 at 107:5-110:24; DN 33-12, at PageID # 704-705.) Servpro argues Defendants have not justified their failure to serve timely initial disclosures and the failure to provide the disclosures prevented Servpro from conducting discovery on the items, people and information Defendants should have disclosed. (DN 33, at PageID # 384.) Servpro argues Defendants should now be barred from calling witnesses or relying on information that was not identified in their first set of initial disclosures served on December 10, 2018. (DN 33, at PageID #384, 387.) Servpro further moves for Defendants to pay Servpro's “reasonable expenses in bringing this motion as to the initial disclosures.” (DN 33, at PageID #384.)
*17 In response, Defendant states it will supplement its disclosures if and when it discovers additional witnesses that have not been disclosed. (DN 35, at PageID #751.)
However, pursuant to DN 28, supplementations under Rule 26(e) were due no later than March 18, 2019. (DN 28, at PageID # 360.) Defendants have not evidenced that their failure to supplement was substantially justified or harmless. Defendants had a duty to supplement their disclosure pursuant to Fed. R. Civ. P 26(e)(1) and due to Defendants failure to supplement, pursuant to Fed. R. Civ. P 37(c)(1), Defendants are precluded from using information or witnesses to supply evidence at trial that were not included in Defendant's initial disclosure. (DN 33-12.)
II. SECOND MOTION TO COMPEL
A. Legal Standard
This Court maintains discretion over the scope of discovery. S.S. v. E. Kentucky Univ., 532 F.3d 445, 451 (6th Cir. 2008) quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). Generally speaking, “[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....” Fed. R. Civ. P. 26(b)(1). Discovery responses therefore must be “complete and correct.” Fed. R. Civ. P. 26(g)(1)(A). Objections to interrogatories must be stated with specificity. Fed. R. Civ. P. 33(b)(4). Answers to requests for admission must admit the request, specifically deny the request, detail why the answering party cannot truthfully admit or deny, or object on stated grounds. Fed. R. Civ. P. 36(a)(4),(5). Upon a motion to compel discovery, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
Discovery must be “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). The Court must curtail discovery requests that exceed this scope. Id.
B. Discussion
Servpro moves to compel responses to its second round of written discovery requests, including requests to admit, requests for production and interrogatories, served on March 11, 2019. (DN 44, at PageID #850.) Servpro states Defendants timely responded to the requests to admit, but asked for an additional 15 days to respond to the document requests and interrogatories. (DN 44-4, at PageID # 962.) Servpro declined the extension of 15 days because it would have put Defendants beyond the Court-ordered completion date of April 18, but Servpro did give Defendants an additional nine days so that the responses could be served on April 18, 2019. (DN 44-4, at PageID #963.) Defendants failed to serve the discovery responses to the second set of interrogatories and requests for production by April 18, 2019. (DN 44, at Page ID # 851.)
On April 22 and 23, Servpro raised issues with Defendants’ responses to the second set of requests for admission and noted Defendants’ failure to provide any responses to the requests for production or interrogatories. (DN 44-4, at PageID #965-966.) On April 25, 2019 Defendants proposed a call to meet and confer. (DN 44-4, at PageID #968.) On April 29, 2019 Defendants asked to move the call to May 1, 2019. (DN 44-4, at PageID # 970.) On the call, the parties agreed that Defendants would provide responses to the second set of requests for admission by end of business of May 1, 2019 and responses to the second set of interrogatories and requests for production by May 3, 2019. (DN 44-4, at PageID # 973.) Defendants provided the requested responses, and on May 7, 2019 Servpro raised further issues with the substance of Defendants’ responses. (DN 44-4, at PageID # 975-977.) Defense counsel stated he would respond on May 13, 2019. (DN 44, at PageID # 851.) However on May 13, 2019 Defendant's counsel instead filed a motion to withdraw from the case. (DN 44, at PageID # 851.)
*18 A party responding to interrogatories “must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.” Fed. R. Civ. P 33(b)(2). A party responding to a request for production must respond in writing within 30 days, but a shorter or longer time may also be stipulated to under Rule 29. Fed. R. Civ. P. 34(b)(2)(A). Fed. R. Civ. P 29(b) provides that the parties may stipulate that the procedures governing or limiting discovery be modified.
Servpro argues the deadline to respond to the second set of discovery requests was April 18 including the extension granted by counsel. (DN 44, at PageID # 852.) Servpro argues that deadline passed without Defendants providing the requested responses and Defendants did not respond until May 3. (DN 44, at PageID # 852.) However, the Court finds that based on DN 44-4 at PageID # 973, the parties stipulated that the deadlines to respond to the interrogatories and requests for production was May 3, 2019. Defendants served responses pursuant to that agreement and therefore, the Court does not find Defendant waived all objections. (DN 44-4, at PageID #974-976.)
1. Requests for Production
Further, Servpro argues that Defendants’ untimely responses to the requests for production were inadequate because Defendants failed to produce the documents as they are kept in the usual course of business or to label them to correspond to the categories in the request. Fed. R. Civ. P 34(b)(2)(E)(i). Servpro argues Defendants made no effort to identify which documents were responsive to the requests even though Defendant responded to RFP Nos. 85-87 and 92 that, “These were previously provided. There are no additional documents in the possession of the defendant.” (DN 44-6; DN 44, at PageID # 853.)
Servpro also argues it requested documents in RFPs No. 88-91 that were known to be in Defendants’ possession, but that Defendants did not identify. (DN 44, at PageID #854; DN 44-4, at PageID # 977.) Defendants have not addressed Servpro's concerns that the responses are inadequate. (DN 44, at PageID # 854.)
Defendants did not file a response to the instant motion. Given that Defendants contend the responsive documents to RFP Nos. 85-87, and 92 were already provided, the Court orders Defendants to furnish the Bates numbers in order to comply with Fed. R. Civ. P. 34(b)(2)(E)(i), as there is no evidence that the documents were produced as they are kept in the usual course of business.
Though Servpro argues that it requested documents known to be in Defendants’ possession that are responsive to RFP Nos. 85-87, and 92, Servpro does not cite to any evidence besides their own email to opposing counsel to support the veracity of that accusation. (DN 44-4, at PageID # 977.) Upon review of the RFP Nos. 88-91, the Court finds Defendants’ response to RFP 88 to be satisfactory as there is no evidence to the contrary showing the documents in question exist when Defendants attest they do not. The Court finds Defendant's objection to RFP No. 89, that the request is vague, to be meritorious. The request reads, “All documents showing allegations, accusations, or claims, and any settlements arising therefrom, against Defendant since January 1, 2017.” However, the Court finds Defendants’ responses to RFP Nos. 90 and 91 to be insufficient as the responses merely provide that Defendant is not in possession of the requested documents but does not state whether the documents exist or how a diligent search was performed. Weber Mfg. Techs., Inc. v. Plasan Carbon Composites, Inc. 2016 WL 8114507, at *6 (E.D. Mich. July 26, 2016).
*19 Defendants are ordered to supplement their responses to requests for production, set two, Nos. 85-87, and 90-92 by November 15, 2019.
2. Requests for Admission
Pursuant to Fed. R. Civ. P 36(a)(4), “if a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Further, the grounds for objecting to a request must be stated. Fed. R. Civ. P. 36(a)(5). Servpro further argues Defendants’ responses to some of the requests to admit do not constitute good faith responses because the objections are baseless and the responses do not answer the requests. Servpro requests the Court to determine the sufficiency of Defendants’ answers and objections. Fed. R. Civ. P 36(a)(6). Requests to admit are meant “to conclusively establish the admitted fact unless the court permits a withdrawal or amendment of the admission.”
Servpro argues Defendants objected to multiple request on the basis that, “It is improper use of Requests for Admissions to make a request for information that has already been provided.” (DN 44-5, RFAs No. 116, 117, 120, 121.) Servpro argues that there is no rule preventing parties from asking about prior deposition testimony in a request for admission to nail down facts. Further Servpro points out Defendants do not even cite to the portion of deposition transcript where the same question was allegedly asked. (DN 44, at PageID #854.)
Servpro also argues that Defendants objected to two requests because they claimed that the requests’ use of the term “approximately” with a number was vague. (DN 44-5, RFA Nos. 112, 113.) Servpro argues it would be very simple for Defendants to review the document production they made to Servpro and count the numbers of different file types that Defendants produced since this is how Servpro came up with these numbers. (DN 44, at PageID #855.)
Servpro requests that RFA Nos. 112, 113, 116, 117, 120 and 121 be deemed admitted or that the Court order Defendants serve amended responses to the requests to admit without objections. (DN 44, at PageID #855.) The Court is persuaded by Servpro's arguments regarding RFAs 116, 117, 120 and 121; however the Court finds RFA Nos. 112, and 113 to be vague. The requests are as follows:
No. 112: Admit that you provided approximately 133 electronic file folders (either compressed “zip” files or standard electronic file folders) containing Job Files for customers.
No. 113: Admit that you provided approximately 97 PDF job files for customers.
The Court finds Defendants objection to the use of the word “approximately” in the above RFAs to be meritorious. Based on the foregoing, the Court orders Defendants to serve amended responses to RFAs Nos. 116, 117, 120 and 121 by November 15, 2019.
3. Fees
*20 Servpro requests reasonable expenses in making the instant motion to compel pursuant to Fed. R. Civ. P. 37(a)(5) if the Court grants this motion. Defendants have not responded to the instant motion to compel in order to show substantial justification or other circumstances that would make an award of expenses unjust. Given that the Court has granted the motion in part, the Court orders Defendants to pay the attorney's fees incurred by Plaintiffs in bringing the second motion to compel. Servpro's counsel is ordered to submit billing records and corresponding declarations evidencing time spent on the instant motion by November 15, 2019. Defendants may to respond to the amount requested by Plaintiffs by November 30, 2019. This response should only address the amount claimed by Servpro and the sufficiency of the itemization.
III. MOTION TO WITHDRAW
A. Legal Standard
Pursuant to Local Rule 83.6(b), an attorney of record may withdraw from a case only when “the attorney files a motion, certifies the motion was served on the client, makes a showing of good cause, and the Court consents to the withdrawal on whatever terms the Court chooses to impose.”
B. Discussion
Defendants’ counsel Jonathan Dyar and Khalid A. Kahloon move for leave to withdraw as counsel for Defendants pursuant to Local Rule 83.6. (DN 43 at PageID # 847.) Counsel argues that Defendants’ inability to meet the financial obligations of litigation has created irreconcilable differences between counsel and client. Id.
In response, Servpro states that it doubts Defendants’ counsel has good cause to allow both attorneys to withdraw from representing all Defendants in this case given their recent motion to extend discovery. Further, Servpro argues that its motion to compel and motion for sanctions (DN 33 and DN 44) must be resolved prior to the motion to withdraw.
The proof of service reflects the motion was emailed to Defendants Jacob Blanton and “MERGENCY SERVICE, LLC [sic]”. (DN 43, at PageID #848.) The Court is not satisfied that counsel's clients have been served based on the attached proof of service and the Court orders counsel to serve their clients by certified mail to ensure notice. Accordingly, the motion to withdraw is DENIED WITHOUT PREJUDICE.
IV. ORDER
Accordingly, IT IS HEREBY ORDERED as follows:
1. Servpro's motion for sanctions (DN 33) is GRANTED IN PART
a. Defendants Blanton and ES are ordered to supplement their responses to interrogatories No. 1, 2, 3, 5, 6, and 7 without objection by November 15, 2019.
b. Defendants are ordered to pay reasonable expenses for Servpro's motion for sanctions. Servpro's counsel is ordered to submit billing records and corresponding declarations evidencing time spent on the motion for sanctions by November 15, 2019. Defendants may respond to the amount requested by Plaintiffs by November 30, 2019. This response should only address the amount claimed by Servpro and the sufficiency of the itemization.
c. Defendants Blanton and ES are ordered to supplement their responses to the requests for production without objection by November 15, 2019. If the documents in question do not exist the Court requires a signed affidavit consistent with conditions stated in the above ruling. If the documents in question do exist, Defendants must identify the Bates numbers of each responsive document corresponding to the request.
d. If Defendants have any supplemental documents they must be served on Plaintiffs by November 30, 2019.
e. Defendants are ordered by produce all information contained in .esx files in PDF format or TIFF format with OCR or OCR files by November 30, 2019.
f. Defendants are ordered to pay reasonable expenses for Servpro's organization of Defendants document production. Servpro's counsel is ordered to submit billing records and corresponding declarations evidencing time spent by paralegals and support staff to organize Defendants’ document production by November 15, 2019. Defendants may respond to the amount requested by November 30, 2019.
*21 g. The Court deems the requests for admission set one admitted against Defendants Blanton and ES.
h. The Court orders that Defendants are limited to the use of the information or identity of witnesses as identified in their initial disclosures to supply evidence at trial.
2. Servpro's second motion to compel (DN 44) is GRANTED IN PART.
a. Defendants are ordered to supplement their responses to requests for production, set two Nos. 85-87, and 90-92 by November 15, 2019. If the documents in question do not exist the Court requires a signed affidavit consistent with conditions stated in the above ruling. If the documents in question do exist, Defendants must identify the Bates numbers of each responsive document corresponding to the request.
b. Defendants are ordered to serve amended responses to requests for admission, set two, Nos. 116, 117, 120 and 121 by November 15, 2019.
c. Defendants are ordered to pay reasonable expenses incurred by Servpro for Defendant's second motion to compel. Servpro is ordered to submit billing records and corresponding declarations evidencing time spent on the second motion to compel by November 15, 2019. Defendants may respond to the amount requested by Plaintiffs by November 30, 2019. This response should only address the amount claimed by Servpro and the sufficiency of the itemization.
3. Defendants’ counsel's motion to withdraw (DN 43) is DENIED WITHOUT PREJUDICE.
4. Parties shall on or before October 29, 2019 contact Theresa Burch at theresa_burch@kywd.uscourts.gov to set a time for a scheduling conference within the next twenty days. (DN 49.)
Footnotes
Even if the undersigned was convinced that Defendants’ counterclaim should be dismissed for failing to take discovery for their counterclaims, the undersigned could only make a recommendation for a dispositive sanction.