WRB, Inc. v. DAMM, LLC

WRB, Inc., doing business as Hammer-Schlagen, Plaintiff/Counter Defendant, v. DAMM, LLC, doing business as Minneschlagen; Michael Nicholas; Danielle Nicholas; Matthew Reck; and Allison Reck, Defendants/Counterclaimants.

No. 21-cv-1899 (NEB/TNL)

United States District Court, D. Minnesota

December 22, 2022

Chad A. Snyder and Michael H. Frasier, Rubric Legal LLC, 111 Third Avenue South, Suite 110, Minneapolis, MN 55401 (for Plaintiff/Counter Defendant); and

Cassandra B. Merrick and Christopher W. Madel, Madel PA, 800 Hennepin Avenue, Suite 800, Minneapolis, MN 55403; and Paul T. Dietz, Dietz Law Office LLC, 4975 Wilderness Lake Circle Elko New Market, MN 55020 (for Defendants/Counterclaimants).

ORDER

TONY N. LEUNG, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

This matter comes before the Court on the following motions: (1) Defendants/Counterclaimants DAMM, LLC, Michael Nicholas, Danielle Nicholas, Matthew Reck, and Allison Reck's (collectively, “DAMM Defendants”) Motion to Compel Discovery, ECF No. 43; (2) Plaintiff/Counter Defendant WRB, Inc.'s Motion to Compel, ECF No. 50; and (3) the DAMM Defendants' Motion for Leave to Amend Their Answer and Counterclaims, ECF No. 63.

II. DISCOVERY MOTIONS

A. Background

The Court previously noted that “there [we]re close to 120 disputed discovery requests in these two motions to compel.” ECF No. 60 at 2. The Court continued the hearing on these motions and directed the parties to “continue meeting and conferring regarding the copious amount of discovery in dispute.” ECF No. 60 at 1-2. The Court directed the parties to jointly complete a chart identifying the discovery at issue; the parties' positions on the discovery requests; and each party's last offer in compromise. As the Court previously stated, “[i]n the Court's experience, this exercise has often had the practical and laudable effect of assisting both the parties and the Court in efficiently addressing the disputed discovery and narrowing any remaining issues.” ECF No. 60 at 2. Unfortunately, as of the hearing, this exercise did not have the desired impact and roughly 100 discovery requests remained.

Following the hearing, the parties renewed their efforts at “attempting to resolve [the] discovery disputes that [we]re the subject of the parties' cross motions to compel.” ECF No. 91 at 1. The parties were directed to “file a joint letter on or before September 19, 2022 indicating which if any of the discovery requests at issue in [these motions to compel] have since been resolved.” ECF No. 93.

The parties' efforts were not in vain. The parties were able to resolve all of the discovery at issue in WRB's motion to compel and were able to narrow at least somewhat the discovery at issue in the DAMM Defendants' motion.^[1] Most recently, the DAMM Defendants notified that Court that, after taking depositions in this matter, they were able to additionally narrow the remaining requests at issue. See generally ECF No. 100.

B. WRB's Motion to Compel

In light of the parties' joint letter that the discovery at issue in WRB's motion to compel has since been resolved, this motion will be denied as moot.

C. DAMM Defendants' Motion to Compel

Following the parties' repeated meet-and-confers, there remain a little over 20 discovery requests at issue. They are as follows: Defendant Allison Reck's (“AR”) Request for Production No. 7; Defendant Danielle Nicholas's (“DN”) Request for Production Nos. 4, 5, and 7; Defendant Michael Nicholas's (“MN”) Request for Production Nos. 11 and 12; Defendant Matthew Reck's (“MR”) Request for Production Nos. 4, 5, 6, 7, 11, and 12; Defendant DAMM, LLC's Request for Production Nos. 11 and 12; Defendant DAMM, LLC's Interrogatory Nos. 9 and 10; and Defendant DAMM, LLC's Request for Admission Nos. 6, 9, 11, 17, 22 and 24.

1. Legal Standard

The DAMM Defendants' motion implicates the Court's broad discretion in handling pretrial procedure and discovery. See, e.g., Hill v. Sw. Energy Co., 858 F.3d 481, 484 (8th Cir. 2017) (“A district court has very wide discretion in handling pretrial discovery ....” (quoting United States ex rel. Kraxberger v. Kansas City Power & Light Co., 756 F.3d 1075, 1082 (8th Cir. 2014)); Solutran, Inc. v. U.S. Bancorp, No. 13-cv-2637 (SRN/BRT), 2016 WL 7377099, at *2 (D. Minn. Dec. 20, 2016) (“Further, magistrate judges ‘are afforded wide discretion in handling discovery matters and are free to use and control pretrial procedure in furtherance of the orderly administration of justice.'” (internal quotation marks omitted) (quoting Favors v. Hoover, No. 13-cv-428 (JRT/LIB), 2013 WL 6511851, at *3 n.3 (D. Minn. Dec. 12, 2013)).

In general, “[p]arties 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). “Some threshold showing of relevance must be made[, however,] 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). Further, “[t]he 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) (quoting Fed.R.Civ.P. 26 advisory committee's note to 2015 amendment). “[A] court can-and must-limit proposed discovery that it determines is not proportional to the needs of the case.” Id. (quotation omitted); see Fed.R.Civ.P. 26(b)(2)(C)(iii). Considerations bearing on proportionality include “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.” Fed.R.Civ.P. 26(b)(1); see also Vallejo, 903 F.3d at 742-43.

2. No Other Responsive Information

Previously, the Court reminded the parties that

a party cannot be compelled to produce what it does not have. See, e.g., Edeh v. Equifax Info. Servs., LLC, 291 F.R.D. 330, 337 (D. Minn. 2013) (“Here, Equifax maintains that it does not have the documents requested in Requests for Production Nos. 3 and 4. If Equifax does not have the documents in its possession, custody, or control, it cannot be compelled to produce them.”); see also Farmers Ins. Exch. v. West, No. 11-cv-2297 (PAM/JJK), 2012 WL 12894845, at *5 (D. Minn. Sept. 21, 2012) (“Of course, the Court cannot order any party to produce something in discovery that does not, in fact, exist.”). “The Court must accept, at face value, a party's representation that it has fully produced all materials that are discoverable.” Bombardier Recreational Prods., Inc., v. Arctic Cat, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 5685463, at *7 (D. Minn. Sept. 24, 2014) (quotation omitted)).

ECF No. 60 at 3.

Based on the grid submitted by the parties, WRB has stated that it has produced all responsive documents in its possession for MN Request for Production No. 11 and MR Request for Production No. 12. See also Ex. 15 to Decl. of Paul Dietz, ECF No. 45-1 at 228; Ex. 14 to Decl. of Paul Dietz, ECF No. 45-1 at 211, 212.

The DAMM Defendants' motion is therefore denied as to MN Request for Production No. 11 and MR Request for Production No. 12.

3. Compromise Reached

With respect to DAMM Request for Admission No. 9,^[2] the grid reflects that WRB “agree[d] to supplement its response and admit that the cross peen hammer shown in US Trademark registration 5548112 looks different than the finishing hammer included with the Minneschlagen game” following clarification from the DAMM Defendants.

With respect to AR Request for Production No. 7,^[3] the grid reflects that the DAMM Defendants offered to narrow this request to “communications from any licensee having [been] granted rights or permission to conduct activities without the presence of WRB under U.S. [T]rademark Registration Nos. 5548112 and 4804117 and the underlying trademarks of the same.” At the hearing, WRB accepted the compromise proposal.

The DAMM Defendants' motion is therefore granted in part as to DAMM Request for Admission No. 9 and AR Request for Production No. 7. To the extent it has not done so already, WRB shall supplement its responses to these discovery requests consistent with the compromises reached.

4. Valid Responses

a. DAMM Interrogatory Nos. 9 & 10

In their memorandum and in the grid, the DAMM Defendants take issue with WRB's responses to DAMM Interrogatory Nos. 9^[4] and 10^[5], asserting that the responses are evasive and non-responsive or “conflict[] with other responses.” Defs.' Mem. in Supp. at 21-22, ECF No. 47.

Under Rule 33, “[e]ach 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 Court has reviewed each of the responses and finds them to be sufficient. Ultimately, “[the DAMM Defendants'] challenge to [WRB's] interrogatory answers boils down to a disagreement with the substance of [its] answers ....” Richard v. Dignean, 332 F.R.D. 450, 460 (W.D. N.Y. 2019). That the DAMM Defendants may “quibble[e] with the veracity” of WRB's responses is “not a basis for a motion to compel.” Hickman v. Silva, No. CA C-12-209 2012 WL 4973041, at *2 (S.D. Tex. Oct. 17, 2012); see also, e.g., Bradford v. Owens, No. 3:22CV-P488-S, 2014 WL 3513182, at *2 (W.D. Ky. July 14, 2014) (“Plaintiff's disagreement with Defendant's response is not a foundation for granting a motion to compel.”); Grant v. Target Corp., No. 2:10-CV-823, 2013 WL 571845, at *9 (S.D. Ohio Feb....