*1 Open Sea Distribution Corp.[2] and Pro Design Plus SAS sue Artemis Distribution, LLC, Simon Mansell, and Lumiere SRL. Artemis brings counterclaims against Open Sea and Pro Design and third-party claims against Neil Porras. The litigation involves a dispute between competitors in the cryotherapy market over using “Cryoskin” as a name or mark.[3]

Complicating the dispute has been the number of parties (six); the number of pleadings (nine; four operative); the number of claims (seventeen); witnesses and documents in other countries (England, France, and Italy); and the number of lawyers (fourteen), including lawyers who have withdrawn, a lawyer who had to leave the role of lead counsel because of medical issues, another lawyer who recently became ill and was involved in an accident, and lawyers who recently entered the litigation.[4]

Foreshadowed by an inability to prepare a joint case management report (a rarity in this Court), an inability to agree on protocol for electronically stored information (ESI) (a rarity in complex commercial litigation), and an inability to agree on the parameters of a protective order (a rarity in any action), the action has spawned more discovery disputes than most (eight motions to compel in the last fourteen months and other requests for court intervention).[5]

*2 The dispute dates back to December 2017 or earlier, when Artemis contends it used “Cryoskin.”[6] In July 2020, Artemis filed a petition to cancel Pro Design's trademark, and the United States Patent and Trademark Office instituted a cancellation proceeding.[7] Open Sea and Pro Design responded by filing this action in December 2020. In other words, the dispute is based on alleged conduct nearly five years old and has been pending either here or elsewhere for more than two years.

The Court entered a scheduling order in May 2021, warning the parties: “THE COURT HAS DONE EVERYTHING POSSIBLE TO SET APPROPRIATE DEADLINES FOR THIS CASE. THE PARTIES SHOULD PROCEED ACCORDINGLY. DO NOT ASSUME THAT THE COURT WILL EXTEND THESE DEADLINES.”[8] Still, to give the parties more time to discover facts and in recognition of the pendency of motions to dismiss,[9] the Court has extended the deadlines four times, once upon Artemis's unopposed request and otherwise upon joint requests.[10]

While the latest deadline to complete fact discovery was looming, many of the discovery disputes came to a head. The disputes are described in Artemis's May 2022 motion to compel Open Sea and Porras to respond to discovery requests, Artemis's July 2022 motion to compel Pro Design to respond to discovery requests, Pro Design's August 2022 motions to compel Artemis to respond to discovery requests, responses to three of the motions, and an affidavit of Pro Design's counsel.[11] Most disputes were discussed at telephone conferences on July 11, August 3, and August 12, 2022.[12] While many disputes were resolved on the record or presumably have been resolved since with supplementation and further conferral, some remain for resolution by the Court.[13]

*3 Artemis complains about how Pro Design produced documents; most recently, 9,000 pages in eight searchable .pdf compilations devoid of metadata.[14] Artemis's request for production of the documents in a different format may be moot to the extent Artemis's counsel made the request at least in part to help prepare for depositions that may have already occurred. In any event, considering Federal Rules of Civil Procedure 1, 26(b)(1), 26(b)(2)(B), 26(b)(2)(C), 26(f)(3)(C), 26(g)(1)(A), 26(g)(1)(B)(ii), 33(d), 34(b)(2)(D), and 34(b)(2)(E); the Middle District Discovery Handbook, and the totality of the circumstances (including the absence of an agreed-upon ESI protocol and the representations in the affidavit of Pro Design's counsel), the request is denied without prejudice to moving to compel the production of specific metadata about specific emails or other electronic communications where Artemis can demonstrate the specific metadata is both relevant and proportional and that good-faith efforts to confer have failed to resolve the issue. Any motion must comply with the expedited procedure described at the end of this order.[15]

Artemis asks the Court to rule now that Open Sea, Pro Design, and Porras are limited to using the information they have provided during discovery to prove their claims or affirmative defenses. Declining to apply the rules in the abstract, the Court denies the request without prejudice to any party moving to exclude undisclosed evidence where an opposing party tries to use the evidence in a motion, at a hearing, or at trial to prove a claim or affirmative defense.[16]

Regarding Pro Design's most recent motion to compel, the only outstanding issue appears to concern Artemis's answers to Pro Design's requests for admission 146 to 150. Considering Rules 1, 26(b)(1), 33(a)(1), 33(b)(4), 36(a)(4), and the broad nature of the requests, the motion to compel is denied. This ruling is not an evidentiary ruling precluding Artemis from attempting to offer evidence to try to prove its claims or affirmative defenses.

Considering Rules 37(a)(5) and 37(b) and the totality of the circumstances (including issues on both sides; the Court's own failure to require an agreement on an ESI protocol at the outset when a disagreement was apparent; the seeming absence of improper motives; the recent illness, accident, and surgeries of counsel; and the attempt by Open Sea and Porras to retain counsel able to address the discovery disputes), the Court declines to order any party to pay the opposing party's expenses associated with the motions to compel, finding sanctions unjust.

In the midst of the discovery disputes, Open Sea, Pro Design, and Porras moved to extend certain case management deadlines. Artemis opposes any extension.[17] Mansell filed no response. Applying Local Rule 3.01(c), the Court treats his silence as the absence of opposition.[18] When Open Sea, Pro Design, and Porras filed the motion, the time for serving requests for fact discovery had passed, but the time for filing a motion to compel had not.[19]

*4 Open Sea, Pro Design, and Porras ask the Court to extend by 60 days some case management deadlines, primarily because new counsel appeared to represent Open Sea and Porras on June 30, 2022, and time is needed to amicably resolve the remaining discovery disputes.[20] They observe Open Sea and Pro Design agreed as a courtesy to a “virtually identical” request by Artemis when Artemis's then-new counsel needed time to get up to speed and contend Artemis's refusal to reciprocate is driven solely by discourteous tactics.[21] Artemis observes the posture of the litigation was different then and argues Open Sea has not been diligent and that prompt resolution is imperative to end Open Sea's alleged “ongoing campaign of sending cease and desist letters and other communications to Artemis's customers pointing to this lawsuit to create fear and uncertainty among Artemis's customers.”[22] Artemis correctly observes that although Open Sea, Pro Design, and Porras ask to change only some deadlines, granting the request would necessitate changing all remaining deadlines to give the Court enough time before trial to decide any dispositive and Daubert motions.

Considering Rules 1 and 16(b)(4), the good-cause standard,[23] and the totality of the circumstances (including on one side counsel's illness, accident, and surgeries and the flurry of recent discovery exchanges and on the other side the duration of the dispute and the four previous extensions), the Court grants in part and denies in part the motion. All deadlines remain the same except (1) the parties may complete supplementation of prior responses as promised or ordered by September 2, 2022; (2) the deadline to disclose expert reports on issues that the offering party must prove is extended to September 15, 2022; the deadline to disclose responsive reports is extended to October 11, 2022; and the deadline to file rebuttal expert reports is extended to November 10, 2022; and (3) after digesting the latest round of supplements, document exchanges, and depositions and conferring in good faith, any party, by September 15, 2022, may move through the following expedited procedure for leave to conduct additional but limited, narrowly tailored fact discovery.[24]

To avoid further time-consuming and costly motion practice, a request for discovery in accordance with this order or a complaint about the follow-up discovery promised or ordered must be made not by filing a motion and memorandum of law under Rule 7(b) and Local Rule 3.01 but by filing a notice briefly describing the requested discovery, the failed attempt to resolve the issue after conferral in good faith, and three alternative days and times counsel for all parties are available. The Court will schedule a telephone conference without delay and, if necessary, order briefing.

Thus, the pending motions to compel and to extend deadlines are granted in part and denied in part as stated in this order and at the telephone conferences.[25]

Ordered in Jacksonville, Florida, on August 29, 2022.