United States District Court, E.D. Michigan, Southern Division
INTERNATIONAL IP HOLDINGS, LLC and INNOVATION VENTURES, LLC Plaintiffs,
GREEN PLANET, INC. Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO COMPEL DISCOVERY
H. CLELAND UNITED STATES DISTRICT JUDGE.
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
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,
30, 32-41, 43, and 44.” (Dkt. #106, Pg. ID 2691.) Fact
discovery is set to expire on January 31, 2017. (Dkt. #98.)
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
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.
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.
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.
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.
Meet and Confer
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