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International IP Holdings, LLC v. Green Planet, Inc.

United States District Court, E.D. Michigan, Southern Division

January 23, 2017




         Pending before the court is Defendant Green Planet, Inc.'s (“Green Planet”) Motion to Compel Discovery demanded of Plaintiffs. (Dkt. #106.) Plaintiffs have filed a joint response to the motion, (Dkt. #107), and Defendant has filed a reply, (Dkt. #108). After reviewing the briefs, the court concludes that a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the court will grant in part and deny in part Defendant's motion.

         I. BACKGROUND

         The underlying facts of this case have been discussed at length in this court's prior orders, (Dkts. ##87, 89), familiarity with which is presumed. What remains of this case are claims for copyright infringement and false advertising under the Lahnam Act in connection with Defendant's product labeling of an energy drink. In part, Plaintiffs allege that Defendant's advertising claims regarding the duration of their product are unsubstantiated. Defendant here requests that Plaintiffs provide “proper discovery responses to the third set of interrogatories nos. 15-20 and fourth set of production requests nos. 3, 22-25, 27, [29, ][1] 30, 32-41, 43, and 44.” (Dkt. #106, Pg. ID 2691.) Fact discovery is set to expire on January 31, 2017. (Dkt. #98.)

         Defendant argues that Plaintiffs' responses to these requests have consisted of little more then boilerplate recitations of vague objections without explanation. Green Planet points out that Plaintiffs' interrogatory responses were not verified. It claims to have conferred with Plaintiffs via email over the dispute before filing the instant motion. Defendant argues that the interrogatory requests merely ask for presumptively discoverable information related to previous suits and settlements, Plaintiffs' theory on damages, and any ingredient lists or efficacy test results for Plaintiffs' own similar product. It advances a similar argument as to the production requests, which call for documents identifying the author of the copyrighted work at issue, documents pertaining to effectiveness tests or studies for Plaintiffs' or any similar products, word searches regarding the same within Plaintiffs' emails, ingredient or formula lists for Plaintiffs' product, prior related disputes, and studies on the half life of caffeine.

         In response, Plaintiffs argue that Defendant's motion should be denied outright because Green Planet failed to comply with Eastern District of Michigan Local Rule 7.1, which requires that the parties confer before filing a motion, as Green Planet's “attorneys never requested to meet and confer prior to filing its motion.” (Dkt. #107, Pg. ID 2830.) Plaintiffs generally respond that the requested information is not discoverable because it is not relevant, that Defendants should be able to obtain it on their own because it is publically available, that no such documents exist, and that the proposed email searches are not limited by custodian or time frame as generally required and thus unduly burdensome. They also contend that, had the parties conferred, the issue of the unverified interrogatories would have been resolved without recourse to the court.

         Defendant replies that lawsuits and settlements of similar cases are naturally relevant to determine, among other things, whether Plaintiffs are likely to seek statutory damages, and in any case are more efficiently marshaled by Plaintiffs, who litigated the cases. It also argues that damages contentions are discoverable regardless of Plaintiffs' description of their likely damages strategy within emails between counsel. It insists that requests for studies as to the duration of caffeine and related energy products are relevant to Plaintiffs' claims that Green Planet's statements about duration are inaccurate. Defendant contends that its request for false advertising suits against Plaintiffs is relevant as to whether Plaintiffs have unclean hands. It also claims that the document search should be ordered because Plaintiffs have not demonstrated that there is any real burden in complying with the request. Notably, Green Planet also indicates that requests for production 29, 30, 32, and 33 are all either withdrawn or have since been satisfied.

         II. STANDARD

         “The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad.” Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). “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[.]” Fed.R.Civ.P. 26(b)(1). “Relevant evidence” is evidence that “has any tendency to make a fact more or less probable than it would be without the evidence” where “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Information need not be admissible in evidence to be discoverable. Fed.R.Civ.P. 26(b)(1). “However, district courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).

         Rules 33 and 34 allow a party to serve interrogatories and requests for production of documents on an opposing party. Fed.R.Civ.P. 33, 34. A respondent has thirty days to respond with answers or objections. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A). Where a party fails to respond to these requests properly, Federal Rule 37 allows the requesting party to file a motion to compel. Fed.R.Civ.P. 37(a)(3)(B). “If a court grants a Rule 37 motion to compel, or if discovery is received after a Rule 37 motion is filed, then the court must award reasonable expenses and attorney's fees to the successful party, unless the successful party did not confer in good faith before the motion, the opposing party's position was substantially justified, or other circumstances would make an award unjust.” Jessica Frye, v. CSX Transportation, Inc., et al., No. 14-11996, 2016 WL 2758268, at *1 (E.D. Mich. May 12, 2016) (citing Fed.R.Civ.P. 37(a)(5)(A)).


         A. Meet and Confer

         As an initial matter, Plaintiffs contend that Defendant's motion should be denied for their failure to comply with the requirement that the parties meet and confer prior to filing. Specifically, the rule requires “a conference between the attorneys . . . in which the movant explained the nature of the motion and its legal basis and requested but did not obtain concurrence in the relief sought.” E.D. Mich. LR 7.1(a)(2)(A). This generally contemplates some kind of face-to-face or telephonic meeting. In describing a similar local rule, the court in Loparex, LLC v. MPI Release Technologies, LLC, explained:

[T]he local rule contemplates an actual meeting with a date, time, and place-whether by telephone, videoconference, or (if counsel's location permits) preferably face-to-face. An old-fashioned chat over coffee might prove especially productive. Real-time interaction often provides the best forum for hashing out disputes, whereas a faceless exchange of carefully worded and often pointed emails usually solves little except perhaps providing a false moment of triumph to the person pressing the “send” button.

No. 09-1411, 2011 WL 1871167 (S.D. Ind. May 16, 2011). However, the court's application of the rule is not so intensely rigid as to erect “an insurmountable obstacle to obtaining relief by motion[.]” Shehee v. Saginaw Cty., No. 13-13761, 2014 WL 12604850, at *1 (E.D. Mich. Nov. 19, 2014). In certain cases, the movant may “explain the efforts made to confer with the opponent, but those efforts must be ‘reasonable, ' and the explanation ...

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