United States District Court, E.D. Michigan, Southern Division
Donald J. Ulrich Associates, Inc., Plaintiff,
Bill Forge Private Ltd., Defendant.
Steven Whalen United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
January 19, 2017, Plaintiff Donald J. Ulrich Associates,
Incorporated initiated this action against Bill Forge Private
Limited. See Dkt. No. 1. Plaintiff amended its
Complaint on July 25, 2017. See Dkt. No. 22. There,
it alleges that it entered into an agreement with the
Defendant. Id. at p. 3 (Pg. ID 75). According to the
Plaintiff, this agreement provided that Plaintiff would be
the independent sales representative for the Defendant's
sales of automobile parts that the Defendant manufactured or
supplied to companies in North America. Id.
Plaintiff contends that it was to receive a 3% commission on
these sales, but that it has not received sums owed under the
agreement. Id. Based on these allegations, Plaintiff
raises seven claims in its Complaint, including claims for
breach of contract to pay sales commissions (Count I) and
unjust enrichment (Count VI). See id.
parties are conducting discovery. As part of this process,
the Plaintiff is seeking testimony from Defendant's
corporate representatives about sales attributable to
Defendant's nonparty subsidiaries. See Dkt. No.
49-7. On June 13, 2018, the Defendant filed a Motion for a
Protective Order to prevent this testimony. Dkt. No. 49. The
Plaintiff responded to the motion on June 27, 2018. Dkt. No.
52. The Defendant replied in support of its motion on July 1,
2018. Dkt. No. 54.
before the Court is the Defendant's Motion for a
Protective Order . The Court will decide this motion
without a hearing pursuant to Eastern District of Michigan
Local Rule 7.1(f)(2). For the reasons detailed below, the
Court will DENY the Defendant's Motion for a Protective
Defendant contends that any agreement between the parties did
not involve any of the Defendant's subsidiaries, and in
particular, Bill Forge de Mexico S. de R.L. de C.V.
(“Bill Forge Mexico”). Therefore, according to
the Defendant, whether Plaintiff promoted sales to Bill Forge
Mexico is irrelevant and the Court should prevent the
Plaintiff from obtaining deposition testimony on Bill Forge
Mexico's sales. The Court disagrees and will allow this
may seek discovery of any relevant, non-privileged
information.” In re Ohio Execution Protocol
Litig., 845 F.3d 231, 236 (6th Cir. 2016) (citing
Fed.R.Civ.P. 26(b)(1)). “But district courts, ”
the Sixth Circuit has confirmed, “have discretion to
limit the scope of discovery when the information sought is
overbroad or unduly burdensome.” Id. (citing
exercise this discretion when a party requesting a protective
order demonstrates “ ‘good cause' for
protection from one (or more) harms identified in Rule
26(c)(1)(A) ‘with a particular and specific
demonstration of fact, as distinguished from stereotyped and
conclusory statements.' ” Id. (quoting
Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir.
2012)). Specifically, under that Rule “[a] court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense[.]” Fed.R.Civ.P. 26(c)(1). In assessing whether
good cause exists, “court[s] must balance the
‘right to discovery with the need to prevent fishing
expeditions.' ” In re Ohio Execution Protocol
Litig., 845 F.3d at 236-37 (quoting Serrano,
699 F.3d at 902).
Court concludes that the Defendant has not made the required
showing. The Defendant first argues that, because Bill Forge
Mexico is a nonparty, it is irrelevant whether the Plaintiff
promoted sales for parts produced by Bill Forge Mexico. But
these sales are relevant to Plaintiff's claims.
the Plaintiff maintains that the parties' agreement
provided that Plaintiff would receive commissions on sales
that it promoted even if Bill Forge Mexico produced the parts
ordered, and not the Defendant. In support of this
contention, Plaintiff alleges that it solicited sales for
parts to be produced at a facility in Mexico, which had not
been built at the time of these solicitations. See
Dkt. No. 52, p. 5 (Pg. ID 687). Plaintiff asserts that it
targeted sales for this facility on behalf of the Defendant,
although the facility was part of Bill Forge Mexico.
Id. Plaintiff even details its promotion efforts for
sales regarding this facility, including the companies on the
receiving end of these promotions. See Dkt. No. 52,
p. 5 (Pg. ID 687); see also Dkt. No. 52-4, p. 3 (Pg.
ID 734). Because the Plaintiff contends that it deserves
commissions on any sales it promoted to Bill Forge Mexico,
the requested testimony is relevant to this
case. Plaintiff's demand for testimony,
then, is not a fishing expedition.
the Defendant asserts that the Plaintiff has not offered a
plausible explanation as to how it solicited business for
Bill Forge Mexico. The Plaintiff, however, has submitted an
affidavit from its president outlining its efforts to obtain
business for the facility in Mexico. See Dkt. No.
52-4, p. 3 (Pg. ID 734). Thus, this argument lacks merit.
given the available information at this stage of the
litigation, the Defendant has not demonstrated that the
Plaintiff has no legal basis for claims regarding sales
promoted for parts ultimately produced by Bill Forge Mexico.
See,e.g., Elec. Data Sys., LLC v. Syncreon Am.
Inc., 2012 WL 4513588, at *10 (E.D. Mich. Sept. 29,
2012) (noting ...