Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ezfauxdecor, LLC v. Smith

United States District Court, D. Kansas

June 16, 2017

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

          MEMORANDUM & ORDER

          KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE

         The parties' competing motions regarding the adoption of an ESI protocol are currently pending before the Court in the above-captioned matter. (Docs. 119, 122.) For the reasons set forth herein, Plaintiffs' Motion Regarding the ESI Protocol (Doc. 119) is GRANTED in part and DENIED in part while Defendants' Second Motion to Adopt ESI Protocol (Doc. 122) is GRANTED in part and DENIED in part.

         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.)

         The parties previously filed dueling motions requesting an ESI protocol (Docs. 87, 88). While they agreed about most of the elements, six issues relating to Defendants' proposed protocol were identified. (See Doc. 104, at 7-8.) Plaintiffs argued that their proposal was more consistent with the Sedona Conference than Defendants' proposal. (Doc. 88, at 1-2.) Plaintiffs' main problems with Defendants' proposal was that it mixed “matters more appropriate to a protective order with the limited scope of a [sic] ESI plan. An ESI plan concerns the format of production - a protective order concerns the limits to production or dissemination of material.” (Id., at 2.)

         This Court's prior Order on the issue stated that “the elements to which the parties have agreed create the structure for an appropriate ESI protocol.” (Doc. 104, at 9.) The Court also stated that “[t]he protective order-type elements of Defendants' proposal do not belong in an ESI protocol.” (Id.) The parties were directed to “to jointly compose a revised ESI protocol adhering to the elements on which they have expressed agreement in their respective motions” within 30 days. (Id.) The Court concluded by holding that additional elements proposed by either party were excluded by the Order, without prejudice to revisiting these as they may relate to specific discovery. (Id.)

         The parties' efforts to draft an agreed protocol were unsuccessful and they subsequently (and timely) submitted an additional round of competing ESI protocols. (Docs. 119, 122.) Plaintiffs' motion indicates that the attached protocol was agreed upon “with the exception of Paragraphs 8 and 9 which concern the format for the production of financial information and websites/webpages.” (Doc. 119, at 1.)

         ANALYSIS

         A. Paragraph 8.

         According to Plaintiffs,

[t]he only difference between the parties' versions of paragraph 8 is that the Plaintiffs' version identifies the accounting programs of Defendant as a database system that requires native format production. Defendants acknowledge they use QuickBooks as their accounting system. This is the only financial database from which the Plaintiffs have requested native format production.

(Doc. 119, at 2.) Plaintiffs argue that the QuickBooks file is the only native format financial information requested and doing so imposes “virtually no burden” to either party. (Id., at 3-4.)

         Plaintiffs also contend that Defendants' objection to this is improper because goes to the content of what is produced, rather than the format of the production. (Id., at 4-5.) According to Plaintiffs, “[w]ithout the underlying financial data, Plaintiffs would have no way of disputing the cost offsets claimed by the Defendants and demonstrating that the claimed offsets do not apply to the sales generated by the false advertising.” (Id., at 5.)

         Finally, Plaintiffs contend that the production of the QuickBooks file would potentially allow the parties to withdraw certain other discovery requests (i.e. requesting bank statements) which were necessitated ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.