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Ezfauxdecor, LLC v. Smith

United States District Court, D. Kansas

March 6, 2017

EZFAUXDECOR, LLC, et al., Plaintiffs,
v.
ALISON SMITH, et al., Defendants.

          ORDER ON PENDING MOTIONS

          KENNETH G. GALE, United States Magistrate Judge

         Now before the Court are the parties' dueling motions requesting the entry of a Protective Order (Docs. 81, 83) as well as the parties' dueling motions regarding an ESI protocol for the case (Docs. 87, 88). For the reasons set forth herein, Defendants' motion for a Protective Order (Doc 81) is DENIED and Plaintiffs' competing motion (Doc. 83) is GRANTED. The parties' competing motions for an ESI protocol (Docs. 87, 88) are GRANTED in part and DENIED in part as more fully set forth below.

         Also pending is Defendants' motion for extension of time to file a motion to compel, to which Plaintiffs filed no response. (Doc. 98.) This motion is GRANTED as uncontested.[1]

         BACKGROUND

         The parties in this lawsuit are competing on-line retailers selling adhesive coverings for household appliances and countertops. (See Doc. 86, at 1-2.) Plaintiffs bring claims against Defendants for false advertising, tortious interference with business relations, commercial disparagement, and false or fraudulent trademark registration. (See generally Doc. 96.) Additionally, Plaintiffs seek a cancellation of Defendants' trademark registrations and request a declaratory judgment “of its continued right to use the phrases ‘instant stainless, ' ‘instant stainless steel, ' and ‘instant granite, ' as such or in combination with other words to describe Plaintiffs' products, all free and clear of interference or harassment by Defendants and without any obligation or liability to Defendants.” (Id., at 13-18.)

         Currently pending before the Court are the parties competing motions, enumerated supra. The motions will be addressed by subject matter.

         DISCUSSION

         1. Defendants' Motion for Protective Order (Doc. 81) and Plaintiffs' Motion for Protective Order (Doc. 83).

         The parties agree that a Protective Order is necessary in this case, but have been unable to agree on its particulars. Because the parties are competitors in a “small market segment” (Doc. 82, at 13), Defendants request two-tiered protection, which would include a second level of protection for documents designated “attorneys' eyes only.” This would be reserved for customer-identifying information, vendor information, and private financial information. (Id., at 12.)

         Defendants also request additional protections to “reduce the risk that documents designated Attorneys' Eyes Only may be disclosed to Plaintiffs again.” (Id., at 14.)

Defendants' protective order in Exhibit A would require Defendants to produce financial summaries of confidential financial information (designated “Attorneys' Eyes Only”), without having to produce it in its full, native format. Plaintiffs' counsel would be permitted to verify the accuracy of this summarized information by inspecting Defendants' private financial records in their full, native form, but Plaintiffs' counsel will not have unrestricted access to, or a permanent copy of, such financial information in its full, native format. (“Measure (3)”) In the alternative to Measure (3), Defendants' proposed protective order in Exhibit B would permit the withholding of their confidential financial information in native format until thirty (30) days prior to the proposed Pretrial Order deadline (“Measure (4)”).

(Id., at 14-15.) Defendants provide examples of events that justify this type of protection, including an instance when Plaintiffs' counsel allegedly showed Plaintiff certain documents marked “Confidential - Counsel Eyes Only” pursuant to a pre-mediation agreement. (Id., at 15.)

         Plaintiffs contend that the protections proposed by Defendants go beyond any that have been allowed in this District or the Tenth Circuit as a whole and “would prevent a plaintiff in a Lanham Act unfair competition case from obtaining evidence required by statute and necessary to the elements of their claim.” (Doc. 86, at 1.) Plaintiffs object to three aspects of Defendants' proposed Orders:

1. Prohibiting necessary experts from viewing customer information.
2. Permitting Defendants to merely show financial information to the Plaintiffs in lieu of producing the requested financial information and prohibiting experts from viewing the financial information. (Dft's Measure 3)
3. Permitting Defendants to withhold financial information until 30 days before trial and after the deadline for designating ...

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