Grain Processing Corp. v. Virgin Scent, Inc.
Grain Processing Corp. v. Virgin Scent, Inc.
2022 WL 19000597 (S.D. Iowa 2022)
February 28, 2022
Jackson Jr., Stephen B., United States Magistrate Judge
Summary
The court granted GPC's motion to compel VS to produce documents related to the breach of contract claim, including ESI, and denied VS's motion for a protective order. The court ordered VS to supplement its discovery responses and produce the requested information and materials by March 11, 2022.
GRAIN PROCESSING CORPORATION, Plaintiff,
v.
VIRGIN SCENT, INC., AKIVA NOUROLLAH and YAAKOV NOUROLLAH, Defendants
v.
VIRGIN SCENT, INC., AKIVA NOUROLLAH and YAAKOV NOUROLLAH, Defendants
CIVIL NO. 3:21-cv-00019-RGE-SBJ
United States District Court, S.D. Iowa, Eastern Division
Filed February 28, 2022
Jackson Jr., Stephen B., United States Magistrate Judge
ORDER
I. INTRODUCTION
*1 Plaintiff Grain Processing Corporation (“Grain Processing” or “GPC”) asserts defendant Virgin Scent, Inc. (“Virgin Scent”) breached a contract for the purchase of ethyl alcohol. Dkt. 1, 29. Virgin Scent denies the claim and asserts several affirmative defenses. Dkt. 22. Now before the Court are two discovery motions: Grain Processing's Motion to Compel (Dkt. 39) and Virgin Scent's Motion for a Protective Order to Stop Plaintiff's Discovery Abuses (Dkt. 53). Grain Processing's motion is brought under Federal Rule of Civil Procedure 37 to compel Virgin Scent to provide full and complete responses to certain interrogatories and requests for production of documents from its first set of discovery requests. Virgin Scent seeks a protective order under Rule 26(c)(1) from having to respond to Grain Processing's second set of discovery requests. Both Grain Processing and Virgin Scent request payment under Rule 37(a)(5) for expenses incurred in bringing their motions. The parties filed respective resistances and replies.
The Court considers the motions to be fully submitted, and although requested, oral argument by counsel is not necessary. L.R. 7(c). As set forth below, the motions will be granted in part and denied in part. An award of expenses to either party is not warranted.
II. CLAIMS AND DEFENSES
The parties' motions center primarily on whether discovery requests served by Grain Processing on Virgin Scent seek information and materials relevant to the issues in this case. Thus, the parties' asserted claims and defenses as set forth in their pleadings are particularly pertinent.
In its initial Complaint (Dkt. 1), Grain Processing described the nature of the action as follows:
This action arises out of a Purchase Agreement executed by the parties on July 1, 2020 under which GPC agreed to supply and Virgin Scent contracted to purchase 10,001,000 wine gallons of ethyl alcohol between January 1, 2021 and December 31, 2021 with the volume “ratable” over the agreement period. The Purchase Agreement is a “take or pay” contract under which Virgin Scent agreed to pay for any volume shortfall in any month. Virgin Scent has submitted purchase orders for a de minimis amount of ethyl alcohol under the Purchase Agreement but has refused to take delivery of any ethyl alcohol and has failed to pay for the volume shortfalls.
Id. ¶ 1. Grain Processing then alleged the following factual background:
GPC was founded in 1943 in Muscatine, Iowa and is one of the leading producers of ethyl alcohol and other food, nutraceutical and industrial grade products from corn.
Virgin Scent does business as Art Naturals, a lifestyle brand that offers “premium quality, cruelty-free, sustainable” beauty and skin care products and that has seen rapid and expansive growth since the company's inception in February 2015. Virgin Scent's products are sold worldwide.
One of the products that Virgin Scent sells as Art Naturals is alcohol-based hand sanitizer.
In the beginning of March 2020, as the COVID-19 pandemic spread to the United States, Art Naturals began selling hand sanitizers, leveraging its network of local and international suppliers to bring these high-demand products to market when others were unable to do so.
*2 On July 1, 2020, Virgin Scent entered into a written purchase agreement with GPC (the “Purchase Agreement”) to supply ethyl alcohol, a key ingredient of the hand sanitizers it was making and selling....
In the Purchase Agreement, GPC agreed to supply and Virgin Scent contracted to purchase 10,001,000 wine gallons of 190 proof SDA 40B ethyl alcohol between January 1, 2021 and December 31, 2021 with the volume “ratable” over the agreement period at the price of $3.63 per gallon.
An original draft of the Purchase Agreement obligated Virgin Scent to purchase 8 million wine gallons of ethyl alcohol. At Virgin Scent's request, this volume was increased to 10,001,000 wine gallons in the final version of the Purchase Agreement.
The Purchase Agreement is a “take or pay” contract under which Virgin Scent agreed to pay for any volume shortfall in any month.
The table below displays the total amount of ethyl alcohol that Virgin Scent contracted to purchase both over the life of the Purchase Agreement and on a pro rata monthly basis:
The ratable share of the ethyl alcohol Virgin Scent purchased corresponding to the month of January, 2021, comprises 833,416.67 wine gallons at the price of $3,025,302.50.
On January 5, 2021, Virgin Scent submitted a purchase order to GPC for 14,000 wine gallons of ethyl alcohol at a total price of $50,820 and paid this amount to GPC. That same day, GPC issued two confirmations of Virgin Scent's orders, confirming two separate shipments to meet the order.
Virgin Scent did not take delivery of any ethyl alcohol in January.
On or about January 31, 2021, GPC sent Virgin Scent an invoice for the January 2021 volume shortfall amounting to nearly $3 million.
Virgin Scent has acknowledged receipt of the invoice.
Virgin Scent has refused to commit to pay for the volume shortfall for January, 2021.
The ratable share of the ethyl alcohol Virgin Scent purchased corresponding to the month of February, 2021, comprises 833,416.67 wine gallons at the price of $3,025,302.50.
Virgin Scent submitted a purchase order on February 12, 2021, for 7,000 wine gallons of ethyl alcohol, at the amount of $25,410.00, which order was confirmed for shipment by GPC on February 15, 2021.
On February 18, 2021, Virgin Scent canceled the February 12, 2021 purchase order.
On February 26, 2021, GPC sent Virgin Scent an invoice for the amount of $2,974,482.50. This amount represents Virgin Scent February 2021 take-or-pay obligation under the Purchase Agreement ($3,025,302.50) less the $50,820 that Virgin Scent had previously paid to GPC in January 2021 for ethyl alcohol for which it has not taken delivery.
Virgin Scent has refused to commit to take delivery of the remaining wine gallons of ethyl alcohol under the Purchase Agreement for February, 2021, or to pay for the volume shortfall.
Virgin Scent advised GPC it may be unable to take the 10,001,000 wine gallons to which it had committed under the Purchase Agreement in calendar year 2021.
Virgin Scent agreed to reimburse GPC for any volume shortfall representing purchased quantities of ethyl alcohol not taken.
GPC's alcohol sales team contacted Virgin Scent representatives more than 50 times between September 2020 and the present date in an effort to discuss the situation and confirm Virgin Scent's commitment to its contractual obligations or otherwise reach an amicable resolution.
*3 Virgin Scent has not taken delivery of the ethyl alcohol it purchased and has not provided adequate assurances of its commitment to fulfil its contractual obligations.
Id. ¶¶ 6-29. Grain Processing asserted a single claim for breach of contract against Virgin Scent:
GPC has fulfilled all of its obligations under the Purchase Agreement and stands willing and able to supply the balance of the volume of ethyl alcohol to which it committed.
Virgin Scent has breached the Purchase Agreement.
To date, Virgin Scent has failed to pay GPC $5,999,785 that it owes under the Purchase Agreement (comprised of the Three Million Twenty-Five Thousand Three Hundred and Two and 50/100 Dollars ($3,025,302.50) it owes for the January volume shortfall and Two Million Nine Hundred Seventy-Four Thousand Four Hundred Eighty-Five and 50/100 Dollars ($2,974,482.50) it owes for the February volume shortfall).
Virgin Scent has refused to commit to take delivery of the remaining ethyl alcohol under the Purchase Agreement.
GPC has been damaged by Virgin Scent's failure to pay the contract price under the Purchase Agreement.
Virgin Scent's failure to pay the January and February volume shortfalls and refusal to commit to take delivery of the remaining wine gallons of ethyl alcohol constitutes a material breach of and default on the whole contract.
Id. ¶¶ 31-36.
In Answer (Dkt. 22) to the initial Complaint, Virgin Scent admitted and denied certain factual allegations and denied the claim for breach of contract. Virgin Scent asserted fifteen affirmative defenses including: “Virgin Scent's actions upon which Plaintiff's Complaint, and the claim therein, is based, were at all times lawful, privileged, reasonable, justified, and undertaken in good faith”; “Plaintiff's claim is equitably barred by the doctrine of estoppel”; “Plaintiffs claim is equitably barred by the doctrine of laches”; “Plaintiff's claim is equitably barred by the doctrine of acquiescence”; “Plaintiff's claim is equitably barred by the doctrine of unclean hands”; “Plaintiff's claim is equitably barred by the doctrine of waiver”; “Plaintiff's claim is barred as the grant of relief requested by Plaintiff would unjustly enrich Plaintiff”; and “The Court lacks personal jurisdiction over Plaintiff.” Id. pp. 5-6.
Grain Processing subsequently filed an Amended Complaint (Dkt. 29) which added Akiva Nourollah, and Yaakov Nourollah as named defendants. Grain Processing asserts those individuals are officers, directors, and owners of Virgin Scent and “should be found jointly and severally liable for Virgin Scent's breach of contract” by piercing the corporate veil. Id. ¶¶ 62-67. Virgin Scent filed a Partial Motion to Dismiss for Failure to State a Claim (Dkt. 30) asserting Grain Processing “has failed to allege any cognizable factual or legal basis which would support a claim against Messrs. Yaakov Nourollah and Akiva Nourollah or would otherwise support Plaintiff's corporate veil piercing theory.” Id. ¶ 4. Defendants Akiva Nourollah and Yaakov Nourollah filed a Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim (Dkt. 59). Those motions have not been ruled upon and defendants have not answered the Amended Complaint.
III. RULES AND STANDARDS FOR DISCOVERY
*4 The Federal Rules of Civil Procedure govern the procedure in all civil actions before this Court, including the discovery process. The rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Pursuant to Rule 26(b)(1), and unless otherwise limited by court order, the scope of discovery in general is as follows:
Parties 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Subsection 26(b)(2) provides for certain limitations on discovery, including the following mandatory requirement:
On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
Under Rule 33, a party may serve an interrogatory which “may relate to any matter that may by inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2). “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). “The grounds for objecting to an interrogatory must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). “An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact.” Fed. R. Civ. P. 33(a)(2).
Under Rule 34, a party may serve a request to produce documents or electronically stored information within the scope of Rule 26(b) and “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The request “must describe with reasonable particularity each item or category of items” being sought for inspection or production. Fed. R. Civ. P. 34(b)(1). For the responding party, Rule 34 provides:
For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
Fed. R. Civ. P. 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C).
*5 Finally, pursuant to Rule 37, a party is permitted to move for an order compelling disclosure or discovery including if the opposing party fails to answer an interrogatory under Rule 33, or fails to produce documents under Rule 34. See Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n 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). The provisions for awarding expenses under Rule 37(a)(5) will be addressed below.
IV. RULINGS ON PENDING MOTIONS
“The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Vallejo v. Amgen, Inc., 903 F.3d 733, 742 (8th Cir. 2018). Here, the Court has considered all arguments asserted by both parties in their submissions and the proportionality of the discovery to the needs of the case under the asserted claims and defenses at issue. Upon doing so, the Court reaches the following decisions as to the disputed discovery between Grain Processing and Virgin Scent.
A. Grain Processing's Motion to Compel
Grain Processing seeks an order from the Court under Rule 37 compelling Virgin Scent to produce all materials responsive to its First Request for Production of Documents Nos. 1, 3, 5 and 7-19 and provide full and complete answers to its Interrogatory Nos. 2, 3, 5 and 8. Dkt. 39 ¶ 13. Those discovery requests are as follows:
REQUEST FOR PRODUCTION NO. 1: Documents sufficient to identify the organizational structure of Virgin Scent, all officers and directors, and all ownership interests in the Virgin Scent by share.
REQUEST FOR PRODUCTION NO. 3: Copies of Your annual and quarterly financial statements, including all income statements and balance sheets, for each of the past five years. In the event any of Your annual and quarterly financial statements, including all income statements and balance sheets for the past five years comprise a portion of any other person's or entity's annual and quarterly financial statements, including all income statements and balance sheets, provide copies of those returns.
REQUEST FOR PRODUCTION NO. 5: All Documents relating to or referring to communications between You and Brad Polen and/or other employees of EMCO Chemical Distributors or any affiliate thereof.
REQUEST FOR PRODUCTION NO. 7: All Documents relating to or referring to any discussions, analysis, report, or plan to purchase, arrangement for the purchase (whether or not completed), and/or arrangement to secure any quantity of Alcohol from any entity or person other than GPC, from January 1, 2020 to the present.
REQUEST FOR PRODUCTION NO. 8: All Documents relating to or referring to Your actual or potential purchases of Alcohol or arrangements to secure (whether or not completed) any quantity Alcohol from January 1, 2020, to the present.
REQUEST FOR PRODUCTION NO. 9: Documents sufficient to show the identities, by name and address, of all persons from whom you purchased, arranged for the purchase (whether or not completed), and/or arranged to secure any quantity (whether or not completed) of Alcohol from January 1, 2020 to the present, the date of each purchase, arrangement to purchase, and/or arrangement to secure and the quantity and price of the Alcohol purchased, arrangement to purchase (whether or not completed), and/or arrangement to secure (whether or not completed).
*6 REQUEST FOR PRODUCTION NO. 10: Documents sufficient to show all shipments of Alcohol received by You at Your production facility or facilities from January 1, 2020, to the present.
REQUEST FOR PRODUCTION NO. 11: Documents sufficient to show the name and address of all third-parties who have produced hand sanitizer products on Your behalf from January 1, 2020, to the present.
REQUEST FOR PRODUCTION NO. 12: Documents sufficient to the amounts of hand sanitizer products manufactured on Your behalf by all third-partied from January 1, 2020, to the present.
REQUEST FOR PRODUCTION NO. 13: All agreements between You and any third party referring to or relating to the purchase of Alcohol by You, on Your behalf, and/or to be used in the manufacture of Your products.
REQUEST FOR PRODUCTION NO. 14: All agreements between You and any third party referring to or relating to the manufacture of hand sanitizer products on Your behalf.
REQUEST FOR PRODUCTION NO. 15: All documents referring to or relating to manufacturing specifications for hand sanitizer products manufactured by any third parties on Your behalf.
REQUEST FOR PRODUCTION NO. 16: Documents sufficient to show the price paid, by order and on a per-gallon basis, on each purchase of Alcohol made by You, on Your behalf, and/or to be used in the manufacture of Your products from January 1, 2020, to the present.
REQUEST FOR PRODUCTION NO. 17: Documents sufficient to show the price paid, by order and on a per-gallon basis, for hand sanitizer products manufactured on Your behalf from January 1, 2020 to the present.
REQUEST FOR PRODUCTION NO. 18: Documents sufficient to identify, by brand name, product name, product ID number, SKU, ASIN, and any other unique identifier, all products manufactured and/or sold by You, and/or manufactured and/or sold on Your behalf, that contain Alcohol or whose manufacture uses Alcohol as an input, from January 1, 2020 to the present.
REQUEST FOR PRODUCTION NO. 19: Documents sufficient to show, by dollar revenue and unit sales, separately for each product and broken out separately by brand name, product ID number, SKU, and/or ASIN, Your monthly sales and/or monthly sales made on Your behalf by any third party of all products manufactured and/or sold by You and/or manufactured and/or sold on Your behalf that contain Alcohol or whose manufacture uses Alcohol as an input, from January 1, 2020 to the present.
Dkt. 39-3.
INTERROGATORY NO. 2: Identify all persons or entities by name and address from whom You have purchased, arranged for the purchase of, and/or authorized the purchase of Alcohol during the period between January 1, 2020, and the present.
INTERROGATORY NO. 3: Separately, for all entities or persons identified in Your response to Interrogatory No. 2, identify all purchases of, arrangements to purchase (whether or not completed), Alcohol from January 1, 2020, to the present, whether purchased or arranged to purchase directly by You, on your behalf, and/or at your direction, by providing the date of the purchase, the amount in gallons of Alcohol purchased, the total purchase price and price per gallon, and any unique identifiers or invoice numbers associated with each purchase or arrangement to purchase (whether or not completed).
*7 INTERROGATORY NO. 5: Separately for each product identified in Your response to Interrogatory No. 4, provide the following information on a monthly basis from January 1, 2020 to the present: Number of units of each product sold, stated separately by denomination if necessary; total revenue received by You from sales of each product sold, all costs incurred by You relating to your sale of each product; and number of units of each product in inventory.
INTERROGATORY NO. 8: Separately, for all entities or persons identified in Your response to Interrogatory No. 7, identify all purchases of, arrangements to purchase (whether or not completed), hand sanitizer products from January 1, 2020, to the present, whether purchased or arranged to purchase directly by You, on your behalf, and/or at your direction, by providing the date of the purchase, the amount in gallons of hand sanitizer products purchased, the total purchase price and price per gallon, and any unique identifiers or invoice numbers associated with each purchase or arrangement to purchase (whether or not completed).
Dkt. 39-4.
According to Grain Processing, “[d]espite receiving multiple good faith extensions of time to respond ..., Virgin Scent has refused to produce documents responsive to the [Requests] and its answers to the Interrogatories are deficient in a number of ways.” Dkt. 39 ¶ 3. Grain Processing complains that “Virgin Scent raised broad objections to GPC's requests for documents related to Virgin Scent's organizational structure, its financial statements, its business operations, and the narrow time period set forth in GPC's requests.” Dkt. 39-1 p. 3. Grain Processing contends its requests for documents and information “from January 1, 2020 to the present” is a proper, relevant time frame given “the Purchase Agreement was negotiated in the spring of 2020 and signed on July 1, 2020.” Id. pp. 3, 8-10. While the parties' counsel conferred several times and Virgin Scent supplemented its discovery responses, Grain Processing asserts the supplementation did “not remedy the many deficiencies in Virgin Scent's discovery responses.” Id. pp. 3-6. Grain Processing further complains that Virgin Scent has not “withdrawn its numerous improper objections, including its objection to producing documents and information dated prior to January 1, 2021.” Id. p. 6.
In resistance, Virgin Scent contends the discovery requests at issue “seek irrelevant information and documents as they ask for information and documents related to hand sanitizer and/or other products that use ethyl alcohol as an input, and/or seek information and documents for a time period that pre-dates the Agreement Period.” Dkt. 44 p. 3. Virgin Scent acknowledges the Purchase Agreement was signed on July 1, 2020, but emphasizes the Purchase Agreement specifies an “Agreement Period” from January 1, 2021 through December 31, 2021 for the sale of ethyl alcohol. Id. Virgin Scent insists “[t]he only relevant product at issue is ethyl alcohol. And, the only relevant time period in this breach of contract action is the Agreement Period.” Id. Virgin Scent suggests Grain Processing “is attempting to improperly use discovery to obtain irrelevant, competitive business information from Virgin Scent [and] make discovery unnecessarily burdensome and costly to Virgin Scent.” Id.
Citing to the following instruction from the Eighth Circuit, Virgin Scent asserts Grain Processing should not be permitted to go on a fishing expedition for discovery:
*8 While the standard of relevance in the context of discovery is broader than in the context of admissibility ... this often intoned legal tenet should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (internal citations omitted.)
Virgin Scent represents it has, in good faith, “provided relevant information and documents related to ethyl alcohol in response to [the] discovery requests.” Id. p. 4. And notes it “has supplemented its discovery responses and production of documents several times.” Id. It is further represented that, “in an effort to avoid motion practice, Virgin Scent has even provided, in response to certain discovery requests, more information than it believes was necessary to comply with its discovery obligations.” Id.
For example, Virgin Scent indicates that in response to Interrogatory No. 2, it “has provided the names and addresses of the suppliers from whom it purchased ethyl alcohol from January 1, 2020 to January 1, 2021.” Id. p. 5. Virgin Scent explains it did so “even though it believes that such information for this time period is irrelevant” because it “pre-dates the Agreement Period of the Purchase Agreement.” Id. p. 6. In response to Interrogatory No. 3, Virgin Scent indicates “it provided the amount in gallons and purchase price” for each of those suppliers but again insists such information has no relevancy. Id. “Virgin Scent does not believe it should be compelled to provide information relating to the date of such purchases and to unique identifiers or invoice numbers associated therewith” because, in its view, it “is wholly irrelevant to claims and defenses relating to breach of the Purchase Agreement.” Id. p. 8.
Similarly, Virgin Scent indicates it has “provided information relating to the brand name under which it sold/sells hand sanitizer and identifying information for these products despite the fact its sales of hand sanitizer is irrelevant to this action.” Id. pp. 8-9. But Virgin Scent maintains, in response to Interrogatory No. 5, “[t]he amount of hand sanitizer sold by Virgin Scent or that Virgin Scent has in inventory is irrelevant to whether it breached the Purchase Agreement for ethyl alcohol or its defenses to alleged breach of the Purchase Agreement.” Id. p. 8. Virgin Scent also indicates “it provided the names of the contract manufactures to whom Virgin Scent provided ethyl alcohol to make hand sanitizer even though this information is irrelevant.” Id. pp. 9-10. But “Virgin Scent does not believe that it should be compelled to provide, in response to Interrogatory No. 8, wholly irrelevant information related to the purchase of hand sanitizer, including specifically the date of the purchase, the amount purchased in gallons, the total purchase price and price per gallon, and any unique identifiers or invoice numbers associated with each purchase or arrangement to purchase.” Id. p. 10.
Turning to the requests for production of documents, Virgin Scent indicates it has produced its “Statement of Information with the California Secretary of State” in response to Request No. 1 for documents sufficient to identify its organizational structure. Id. pp. 10-11. Virgin Scent believes the Statement is sufficient and maintains its objections to providing any further information or documents. Id. p. 11. Virgin Scent also maintains objections to Request No. 3 for financial information arguing such information is private and not relevant. Id. p. 12. Regarding Request No. 5, Virgin Scent indicates it produced “all communications with Brad Polen and/or other employees of EMCO Chemical Distributors from June 2020 (when Brad Polen introduced Virgin Scent to Plaintiff's representatives)” but maintains communications prior to June 2020 or not relevant. Id. p. 13.
*9 Virgin Scent also maintains its relevancy objections to Request Nos. 7-10 and 16 relating to actual or potential purchases of alcohol from third parties from January 1, 2020 to the present. Id. pp. 13-14. Virgin Scent further objects to related Request No. 13 because it is not limited to any time period. Id. p. 13. Virgin Scent insists the information it already provided as to its purchase of ethyl alcohol from other entities is sufficient. Id. pp. 13-14.
As for Request Nos. 11-12 and 14-15 which relate to the manufacture of hand sanitizer products from January 1, 2020 to the present, Virgin Scent reiterates that such information is not relevant to this breach of contract action relating to ethyl alcohol and is outside “the only relevant time period [of] January 1, 2021 to December 31, 2021.” Id. p. 14. Virgin Scent again reiterates the same relevancy objections to Request Nos. 17-19 relating to sales information of products containing ethyl alcohol and reasserts the information already provided is sufficient. Id. pp. 15-16. Virgin Scent urges the Court to deny the Motion to Compel in its entirety. Id. p. 16.
In reply, Grain Processing insists the discovery requests at issue “are narrowly tailored and seek highly relevant information to the parties' claims and defenses,” noting “Virgin Scent has denied liability and interposed a multiplicity of legal and equitable defenses” including that its conduct was in good faith. Dkt. 48 pp. 1-2. Grain Processing contends “Virgin Scent's conduct in entering into and breaching the Purchase Agreement was not in good faith,” and therefore asserts it “is entitled to discovery into the circumstances surrounding Virgin Scent's conduct.” Id. p. 2. Because Virgin Scent argues it should be excused from performance under the Purchase Agreement due to its hand sanitizer business not meeting expectations, Grain Processing asserts it must be allowed to “acquire a full understanding of Virgin Scent's business prior to entering into the Purchase Agreement and through Virgin Scent's subsequent failure to perform in the present.” Id. In Grain Processing's view, “Virgin Scent cannot deny that facts relating to the circumstances under which it solicited, negotiated, and signed the Purchase Agreement are relevant to this action.” Id. p. 3.
Because Virgin Scent provided the names and addresses of all suppliers from whom it purchased ethyl alcohol in 2020, Grain Processing withdraws its request for relief as to Interrogatory No. 2 but maintains it is still entitled to the additional information requested by Interrogatory No. 3. Id. p. 4. Grain Processing likewise maintains it is entitled to full answers to Interrogatory Nos. 5 and 8 and responsive documents to the Requests for documents. Id. p. 4-8. Grain Processing insists such information and documents within the period of January 1, 2020 to the present are relevant to its breach of contract claim and for piercing the corporate veil, and Virgin Scent's affirmative defenses. Id. And from Grain Processing's perspective, Virgin Scent made no attempt to establish it will suffer any burden from responding to those discovery requests. Id. p. 2.
After consideration of the parties' arguments, and review of the discovery requests and objections at issue within the context of all claims and defenses asserted in this case, the Court is satisfied the information and materials requested by Grain Processing's First Request for Production of Documents Nos. 1, 3, 5 and 7-19 and Interrogatory Nos. 2, 3, 5 and 8 are within the permissible scope of discovery under Rule 26(b)(1). In the Court's opinion, the time frame provided within most of the requests of “January 1, 2020 to the present” is reasonable and relevant, for purposes of discovery, to the claims alleged by Grain Processing and defenses asserted by Virgin Scent. Although a closer call, the Court also finds information and documents related to hand sanitizer or other products as requested by Grain Processing are relevant, for purposes of discovery, to the claims and defenses being asserted.
*10 Contrary to Virgin Scent's characterization, the Court does not view the discovery requests at issue to be an improper fishing expedition. Grain Processing has sufficiently explained the relevance, for purposes of discovery, of the information and materials being sought to the claims and defenses at issue in this litigation. Notably, as provided by Rule 26(b)(1), information within the permissible “scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
Neither party addressed the proportionality of the discovery as set forth by Rule 26(b)(1); but the Court has based on the parties' pleadings as set forth above and their submissions on the motion to compel. See Vallejo, 903 F.3d at 742. Upon doing so, the Court is satisfied the discovery sought by Grain Processing's First Request for Production of Documents Nos. 1, 3, 5 and 7-19 and Interrogatory Nos. 2, 3, 5 and 8 is proportional to the needs of this case when considering the importance of the issues at stake, the amount in controversy, the parties' relative access to the 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).
While Virgin Scent complains Grain Processing is attempting to “make discovery unnecessarily burdensome and costly,” Virgin Scent has not established any undue burden will be imposed from providing information or producing materials responsive to any of the discovery requests at issue. As instructed by the Eighth Circuit:
A party claiming requests are unduly burdensome cannot make conclusory allegations, but must provide some evidence regarding the time or expense required. Rule 26 requires a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.
Vallejo, 903 F.3d at 743 (internal quotation marks and citations omitted); see also St. Paul Reinsurance Co. v. Com. Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000) (“The party resisting production bears the burden of establishing ... undue burden.”). Virgin Scent has proffered nothing more than conclusory statements of burden and expense to the Court.
For those reasons, the Court hereby orders Virgin Scent to supplement its responses and produce responsive materials to Grain Processing's First Request for Production of Documents Nos. 1, 3, 5 and 7-19. Because Request No. 13 does not provide a timeframe, as noted by Virgin Scent, the Court imposes the same period as for the other requests, “from January 1, 2020 to the present.” The Court also orders Virgin Scent to supplement and fully answer Interrogatory Nos. 3, 5 and 8. Virgin Scent is not required to further answer Interrogatory No. 2.
B. Virgin Scent's Motion for a Protective Order to Stop Plaintiff's Discovery Abuses
Federal Rule of Civil Procedure 26(c)(1) provides the Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery [or] ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(A),(D).
Virgin Scent seeks an order from the Court under Rule 26(c)(1) protecting Virgin Scent from having to provide materials or even responses to Grain Processing's Second Request for Production of Documents Nos. 23 through 39. Dkt. 53 ¶ 1. It is also requested that the Court order Grain Processing to “withdraw” those requests. Id. Virgin Scent contends the materials requested by Grain Processing “are irrelevant to the underlying action on their face, sought for the purpose of harassing and causing annoyance to Virgin Scent, are burdensome, overly broad, and are disproportionate to the needs of the case.” Id. If the Court denies the motion, Virgin Scent “requests that the Court issue an order stating that Virgin Scent has not waived its objections to” the requests and extend the time for Virgin Scent to respond “by at least ten days, including its time to make any objections thereto.” Id. ¶ 6.
*11 In a supporting Memorandum (Dkt. 53-1), Virgin Scent addresses the requests under five separate categories. Id. pp. 6-14. The Court will consider those arguments and Grain Processing's responses in the same manner.
1. Request Nos. 23-28
Request Nos. 23 through 28 seek documents produced in three other lawsuits and documents related to settlement demands and offers made in those lawsuits:
REQUEST FOR PRODUCTION NO. 23: All Documents produced to the Plaintiffs in the matter captioned Brodowicz v. Walmart, Inc., et. al, Case No. 0:21-cv-60643-RKA (S.D. Fla).
REQUEST FOR PRODUCTION NO. 24: All non-privileged Documents containing or referring to all settlement demands and offers in the matter captioned Brodowicz v. Walmart, Inc., et. al, Case No. 0:21-cv-60643-RKA (S.D. Fla).
REQUEST FOR PRODUCTION NO. 25: All Documents produced to the Plaintiffs in the matter captioned Slaughter v. Virgin Scent, Inc., et. al, Case No. 2:21-cv-02875-VAP-E (C.D. Cal.).
REQUEST FOR PRODUCTION NO. 26: All non-privileged Documents containing or referring to all settlement demands and offers in the matter captioned Slaughter v. Virgin Scent, Inc., et. al, Case No. 2:21-cv-02875-VAP-E (C.D. Cal.).
REQUEST FOR PRODUCTION NO. 27: All Documents produced to the Defendant in the matter captioned Virgin Scent, Inc. v. BT Supplies West, Inc., et. al, 2:21-cv-00184-DMG-AS (C.D. Cal.).
REQUEST FOR PRODUCTION NO. 28: All non-privileged Documents containing or referring to all settlement demands and offers in the matter captioned Virgin Scent, Inc. v. BT Supplies West, Inc., et. al, 2:21-cv-00184-DMG-AS (C.D. Cal.).
Dkt. 53-3 pp. 3-4.
Virgin Scent contends documents from unrelated lawsuits brought by plaintiffs against Virgin Scent, even if for breach of contract relating to ethyl alcohol or hand sanitizer, “are not relevant to or probative of the issues in the instant action.” Dkt. 53-1 p. 7. Virgin Scent further contends “[w]hether or not settlement demands or offers were made in unrelated lawsuits, and documents referencing such demands or offers, has no relevancy to” the breach of contract claim or defenses asserted in this case. Id. p. 9. Virgin Scent also asserts the requests are overly broad and burdensome by requesting “all documents” without appropriate limitation. Id. p. 8. In Virgin Scent's view, Grain Processing “is using this discovery to harass, annoy, embarrass, and increase costs to Virgin Scent” and engaging in a “fishing expedition to obtain competitive business information and documents of Virgin Scent and/or third parties.” Id. p. 9. Virgin Scent insists the requests are disproportionate to the needs of this case. Id.
In resistance, Grain Processing contends the documents being requested from the three lawsuits “are necessary to provide background and evidence related to Virgin Scent's business, Virgin Scent's ability to raise equitable affirmative defenses, and GPC's corporate veil piercing theory.” Dkt. 62 p. 7. Grain Processing describes two of the lawsuits as consumer class actions filed in March and April 2021 alleging Virgin Scent manufactured and sold hand sanitizer products containing dangerously high levels of benzene, and the other lawsuit as a breach of contract action filed by Virgin Scent against a number of defendants. Id. Grain Processing suggests the requests for documents produced in those lawsuits “impose no burden upon Virgin Scent because the documents have already been gathered and produced.” Id. As for documents related to settlement demands or offers in the other lawsuits, Grain Processing contends “they are likely to lead to information about Virgin Scent's ability to satisfy, in whole or in part, its obligations under the Purchase Agreement” which “is relevant to any equitable analysis.” Id. p. 9. Again it is suggested “[t]he requested documents should be easy to identify and any burden is minimal.” Id. p. 10.
*12 In the Court's opinion, Request Nos. 23 through 28 are overly broad as propounded by Grain Processing and seek discovery outside the permissible scope of Rule 26(b)(1). Requesting “all documents produced” or “all documents” referring to settlement demands/offers in unrelated lawsuits casts too wide of a net. Grain Processing has not sufficiently explained or shown the relevancy of any particular document which would be captured to the claims and defenses asserted in this case, even just for the purpose of discovery. In the Court's view, based on the record presented, the discovery sought by Request Nos. 23 through 28 is not proportional to the needs of the case. The burden and expense of this proposed discovery outweighs its likely benefit. Therefore, pursuant to Rule 26(b)(2)(C), and for good cause shown under Rule 26(c)(1), Virgin Scent is not required to respond or produce responsive materials to Request Nos. 23 through 28.
2. Request Nos. 29-32, 35
Request Nos. 29 through 32 and 35 seek documents relating to U.S. Food and Drug Administration announcements and communications, recalls, customer returns, and communications relating to benzene:
REQUEST FOR PRODUCTION NO. 29: All Documents relating to or referring to the October 4, 2021 announcement by the U.S. Food and Drug Association (“FDA”) advising consumers not to use certain Art Naturals brand hand sanitizer.
REQUEST FOR PRODUCTION NO. 30: All Documents relating to or referring to communications with the FDA about hand sanitizer products manufactured, sold, or marketed by You, from January 1, 2020 to the present.
REQUEST FOR PRODUCTION NO. 31: All Documents relating to or referring to any actual, completed, or potential recall, market retrieval or similar product recovery efforts of hand sanitizer products manufactured, distributed, sold, or marketed (or imported for any of the same) by You or bearing Your mark, trade name, or brand name, from January 1, 2020 to the present, whether or not such recall, market retrieval or similar product recovery effort was initiated by you or by any third party.
REQUEST FOR PRODUCTION NO. 32: All Documents relating to or referring to any customer returns of hand sanitizer products manufactured, distributed, sold, or marketed (or imported for any of the same) by You or bearing Your mark, trade name, or brand name, from January 1, 2020 to the present, whether or not such return was instituted by an end user, customer purchasing from You, or any reseller of any hand sanitizer products manufactured, distributed, sold, or marketed by you.
REQUEST FOR PRODUCTION NO. 35: All Documents related to or referring to benzene in Your communications with actual or potential Alcohol suppliers or Your actual or potential customers, distributers, and/or distributors from January 1, 2020 to the present.
Dkt. 53-3 pp. 4-5.
Virgin Scent again maintains these requests “seek documents that, on their face, are wholly irrelevant to [Grain Processing's] breach of contract claim, and Virgin Scent's defenses thereto, equitable or otherwise.” Dkt. 53-1 p. 10. It is emphasized this case not a product liability or consumer safety lawsuit, and does not involve recalls, customer returns or benzene. Id. Virgin Scent reiterates that requesting “all documents” without appropriate limitation is overly broad and burdensome and reasserts Grain Processing “is using these requests to harass and cause annoyance to Virgin Scent.” Id. pp. 10-11. It is asserted these requests are also disproportionate to the needs of this case. Id. p. 11.
In resistance, Grain Processing contends documents relating to the FDA's investigation of Virgin Scent's hand sanitizer products and related recall “are likely to lead to relevant information regarding, inter alia, the state of Virgin Scent's hand sanitizer business prior to and during the time Virgin Scent breached the Purchase Agreement and, to the extent Virgin Scent has blamed market conditions on its failure to perform, whether Virgin Scent's own actions were the reason it was no longer producing hand sanitizer.” Dkt. 62 p. 11. Grain processing asserts it is entitled “to investigate Virgin Scent's claimed excuse for non-performance as well as to investigate whether Virgin Scent has clean hands when raising equitable affirmative defenses.” Id. Similarly, Grain Processing asserts the requested documents related to customers' returns and benzene are relevant to Virgin Scent's affirmative defenses and excuses for nonperformance. Id. pp. 12-13. From Grain Processing's perspective, the requests will not impose a burden on Virgin Scent and are proportionate to the needs of the case. Id. pp. 10-13.
*13 In the Court's opinion, Request Nos. 29, 30 and 35 seek discovery outside the permissible scope of Rule 26(b)(1). Under the record submitted, and review of the pleadings, the relevance of the matters involving the FDA and benzene to the breach of contract claim or asserted defenses in this case has not been sufficiently established. Grain Processing is again casting too wide of a net, the burden and expense of the proposed discovery outweighs its likely benefit, and the discovery is not proportional to the needs of the case. Therefore, pursuant to Rule 26(b)(2)(C), and for good cause shown under Rule 26(c)(1), Virgin Scent is not required to respond or produce responsive materials to Request Nos. 29, 30 and 35.
In regard to Request Nos. 31 and 32, however, the Court is satisfied the information and materials requested by Grain Processing is within the permissible scope of discovery under Rule 26(b)(1). Documents related to recalls of Virgin Scent's hand sanitizer products or customer returns of hand sanitizer products during the time frame of “January 1, 2020 to the present” are relevant, for purposes of discovery, to the claims and defenses being asserted in this case. And in the Court's view, the discovery of such materials is proportional to the needs of this case when considering the importance of the issues at stake, the amount in controversy, the parties' relative access to the 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). Virgin Scent has not established any undue burden will be imposed from producing materials responsive to Request Nos. 31 and 32 or that it amounts to harassment or annoyance. Consequently, Virgin Scent must respond to and produce responsive materials to Grain Processing's Second Request for Production of Documents Nos. 31 and 32. Because the Court has considered but rejected Virgin Scent's objections to Request Nos. 31 and 32 as set forth in its Motion for a Protective Order and supporting memorandum, those objections may not be reasserted in its response.
3. Request No. 33
Grain Processing's Request No. 33 seeks production from Virgin Scent of “[a]ll Documents relating to or referring to any customer's failure or refusal to pay for hand sanitizer products manufactured, sold, or marketed by You, from January 1, 2020 to the present.” Dkt. 53-3 p. 5. Virgin Scent maintains this request also seeks documents “wholly irrelevant” to the claims and defenses at issue, was propounded “solely to harass and cause annoyance,” is overly broad and burdensome by utilizing the phrase “all documents” and is disproportionate to the needs of the case. Dkt. 53-1 p. 11. In resistance, Grain Processing contends the requested documents “relate to Virgin Scent's affirmative defenses and asserted excuses for nonperformance under the Purchase Agreement.” Dkt. 62 p. 12. It is asserted that details regarding “customers failing to pay for hand sanitizer products are relevant to assessing Virgin Scent's contention that it acted in good faith in making a single de minimis order on a $36 million take-or-pay contract.” Id. p. 13. Grain Processing argues Virgin Scent has made no showing it will be burdened by producing such materials. Id.
The Court finds the information and materials sought under Request No. 33 is within the permissible scope of discovery under Rule 26(b)(1). Documents related to customers' failure or refusal to pay for Virgin Scent's hand sanitizer products during the time frame of “January 1, 2020 to the present” are relevant, for purposes of discovery, to the claims and defenses being asserted in this case. Such discovery is proportional to the needs of this case when considering the importance of the issues at stake, the amount in controversy, the parties' relative access to the 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). Virgin Scent has not sufficiently shown any undue burden will be imposed from producing materials responsive to Request No. 33 or that it amounts to harassment or annoyance. Consequently, Virgin Scent must respond to and produce responsive materials to Grain Processing's Second Request for Production of Documents No. 33. Because the Court has considered but rejected Virgin Scent's objections to Request No. 33 as set forth in its Motion for a Protective Order and supporting memorandum, those objections may not be reasserted in its response.
4. Request No. 34
*14 Grain Processing's Request No. 34 seeks production from Virgin Scent of “[a]ll Documents relating to or referring to any actual, completed, or potential insurance claims filed related to the events described in Requests for Production Number 31 and/or 32, including communications with any insurer regarding same.” Dkt. 53-3 p. 5. Virgin Scent contends documents relating to any insurance claims as to recalls or customer returns of hand sanitizer products have no relevance to this case, and again asserts this request was propounded “solely to harass and cause annoyance,” is overly broad and burdensome by utilizing the phrase “all documents” and is disproportionate to the needs of the case. Dkt. 53-1 p. 12. In resistance, Grain Processing asserts “[d]ocuments that relate to insurance claims arising out of Virgin Scent's recall, or customer returns, are plainly relevant to Virgin Scent's ability to satisfy the obligations of the Purchase Agreement.” Dkt. 62 pp. 13-14.
In the Court's opinion, the information and materials sought under Request No. 34 is within the permissible scope of discovery under Rule 26(b)(1). As with Request Nos. 31 and 32, documents related to customers' failure or refusal to pay for Virgin Scent's hand sanitizer products during the time frame of “January 1, 2020 to the present” are relevant, for purposes of discovery, to the claims and defenses being asserted in this case, including as to related insurance claims by Virgin Scent. Such discovery is proportional to the needs of this case when considering the importance of the issues at stake, the amount in controversy, the parties' relative access to the 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). Virgin Scent has not sufficiently established any undue burden will be imposed from producing materials responsive to Request No. 34 or that it amounts to harassment or annoyance. Consequently, Virgin Scent must respond to and produce responsive materials to Grain Processing's Second Request for Production of Documents No. 34. Because the Court has considered but rejected Virgin Scent's objections to Request No. 34 as set forth in its Motion for a Protective Order and supporting memorandum, those objections may not be reasserted in its response.
5. Request Nos. 36-39
Request Nos. 36 through 39 seek documents relating to a “purported fire” at Virgin Scent's facility in 2021:
REQUEST FOR PRODUCTION NO. 36: All Documents referring to or relating to the cause of any purported fire that took place in Your facility in 2021.
REQUEST FOR PRODUCTION NO. 37: All Documents referring to or relating to Your property that was destroyed or damaged, including inventory, from any purported fire that took place in Your facility in 2021.
REQUEST FOR PRODUCTION NO. 38: All communications with any insurer referring to or relating to any purported fire that took place in Your facility in 2021.
REQUEST FOR PRODUCTION NO. 39: All Documents submitted by You to any insurer relating to any purported fire that took place in your facility in 2021, including but not limited to any claim requests or related documents, financial information, revenue projections, or proofs of loss.
Dkt. 53-3 pp. 5-6.
Virgin Scent again maintains these requests seek documents “wholly irrelevant” to the claims and defenses in this case, insisting it “has nothing to do with a fire, property damage, or insurance claims.” Dkt. 53-1 p. 13. And again, from Virgin Scent's perspective, the “sole purpose in propounding these requests can only be to harass and cause annoyance,” the requests are overly broad and burdensome by utilizing the phrase “all documents” and are disproportionate to the needs of the case. Id. pp. 13-14. Virgin Scent suggests the requests are a “fishing expedition to obtain irrelevant, private financial information of Virgin Scent that [Grain Processing] thinks it can use to enforce any potential judgment in this case.” Id. p. 13.
*15 In resistance, Grain Processing explains the requests are “designed to allow GPC to understand the nature of the fire so that it can ask questions to Virgin Scent witnesses regarding the fire in an informed matter” and obtain “information regarding the impact of the purported fire upon Virgin Scent's ability to provide the documents and information requested by other discovery requests, as well as upon Virgin Scent's hand sanitizer business.” Dkt. 62 p. 15. Grain Processing also “seeks documents that have been shared with a third party and that are likely to contain relevant information regarding Virgin Scent's hand sanitizer business at the time of the purported fire.” Id. Grain Processing suggests “there should be no burden” on Virgin Scent. Id.
In the Court's opinion, Request Nos. 36 through 39 seek discovery outside the permissible scope of Rule 26(b)(1). The Court is not convinced of any relevance of matters related to the fire to the breach of contract claim or asserted defenses. As such, the burden and expense of this proposed discovery outweighs its likely benefit, and the discovery is not proportional to the needs of the case. Therefore, pursuant to Rule 26(b)(2)(C), and for good cause shown under Rule 26(c)(1), Virgin Scent is not required to respond or produce responsive materials to Request Nos. 36 through 39.
C. Requests for Expenses
Both Grain Processing and Virgin Scent request payment of their expenses incurred in making their respective discovery motions. Dkt. 39, 53. Federal Rule of Civil Procedure 37(a)(5) provides for the payment of expenses depending on the circumstances and outcome of motions to compel discovery:
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—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. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified;
or (iii) other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
Fed. R. Civ. P. 37(a)(5). These provisions also apply to motions for protective orders under Rule 26(c). Fed. R. Civ. P. 26(c)(3).
In the Court's opinion, payment of expenses by either party is not warranted. Even though some arguments were rejected by the Court, the parties' positions on the various discovery disputes were, for the most part, substantially justified. Further, in the Court's view of the overall circumstances leading to the disputes, an award of expenses to either party would be unjust. The Court finds no good reason to apportion the expenses; instead, the parties should bear their own expenses in bringing these discovery disputes to the Court for resolution.
V. CONCLUSION
*16 Plaintiff Grain Processing Corporation's Motion to Compel (Dkt. 39) and Defendant Virgin Scent, Inc.'s Motion for a Protective Order to Stop Plaintiff's Discovery Abuses (Dkt. 53) are granted in part and denied in part. Defendant Virgin Scent, Inc. must supplement its discovery responses and produce the information and materials to Grain Processing Corporation as ordered herein by March 11, 2022.
IT IS SO ORDERED.