United States District Court, D. Kansas
ENERGY INTELLIGENCE GROUP, INC. and ENERGY INTELLIGENCE GROUP (UK) LIMITED, Plaintiffs,
CHS MCPHERSON REFINERY, INC. (F/K/A NATIONAL COOPERATIVE REFINERY ASSOCIATION), Defendant.
MEMORANDUM AND ORDER
L. RUSHFELT U.S. MAGISTRATE JUDGE.
bring this action against Defendant for alleged copyright
infringement of Plaintiffs' publication Oil
Daily from at least June 2004 through the present. This
matter comes before the Court on Plaintiffs' Motion to
Compel Supplemental Answers to Discovery Requests (ECF 56).
Plaintiffs move to compel Defendant to supplement its Answers
to Plaintiffs' First Set of Interrogatories. The motion
is fully briefed and the Court is prepared to rule. For the
reasons explained below, the Court denies Plaintiffs'
motion to compel.
served their First Requests for the Production of Documents
and Things and First Set of Interrogatories on Defendant on
March 24, 2016. In their Interrogatories Plaintiffs asked for
information about the identities of people who had received
or distributed Plaintiffs' publications and the
identities of Defendant's employees who copied or saved
Plaintiffs' publications, as well as identifying
information for the particular publications that Defendant
received, distributed, and/or copied. Plaintiffs identified
June 2004 through the date of the discovery requests as the
“Applicable Period” for production of documents
and Answers to the Interrogatories.
responded to both of Plaintiffs' discovery requests on
May 2, 2016. In responding to the Interrogatories,
Defendant raised several objections. Of relevance to this
matter, Defendant made the following objection in responding
to the Interrogatories: “Plaintiffs make no mention of
a reasonable time period in which relevant information may be
found and [Defendant] objects to Plaintiffs' definition
of the ‘applicable period, ' which extends over
twelve years.” In accordance with this objection,
Defendant answered the Interrogatories by providing
information relevant only to the years 2013 through 2016.
Defendant did not make a similar objection regarding the time
period for production of documents. However, when Defendant
produced its first batch of documents responsive to
Plaintiffs' discovery requests on August 22, 2016, it
provided no documents from earlier than September
September 28, 2016, Plaintiffs wrote to Defendant regarding
its document production and Answers to Interrogatories.
Plaintiffs acknowledged that Defendant had not produced
documents from earlier than 2012, and that Defendant had
answered the Interrogatories with information dating back
only to January 2013. Plaintiffs requested that Defendant
supplement its document production and Answers to the
Interrogatories “for the entire Applicable Period for
sent a letter in response on October 26, 2016, in which it
summarized the parties' communications during the
previous month regarding discovery issues. Defendant
reiterated its objection to the time period for answering the
Interrogatories and explained why it produced documents
dating back only to 2012.
November 4, 2016, Plaintiffs sent a letter to this Court a
letter, summarizing the discovery dispute regarding the
“Applicable Period” and the attempts of the
parties to meet and confer about this issue. Plaintiffs
summarized Defendant's responses to their discovery
requests as follows:
In a letter to [Plaintiffs] dated October 14, 2016,
[Defendant] stated that it would not produce documents
responsive to [Plaintiffs'] document requests for the
time period of 2004 through 2012, based on [Defendant's]
statute of limitations affirmative defense. This was the
first time such an objection was raised by Defendant to
Plaintiffs' discovery requests.
did not explicitly refer to their Interrogatories or
Defendant's objections as to the “Applicable
Period, ” in the November 4 letter to the Court. On
November 9 Plaintiffs filed a Motion for Extension of Time to
File a Motion to Compel related to Defendant's responses
to Plaintiffs' requests for production of
documents. Defendant also sent a letter to the Court
on November 8, 2016, summarizing the dispute about the time
period for discovery responses.
Court held a discovery conference on December 12, 2016. It
entertained argument by the parties as to the time period
issue. It granted Plaintiffs' motion for extension of
time in part. Specifically, the Court granted Plaintiffs
leave to “file motions to compel as to its First and
Second Requests for Production, ” but reserved ruling
on the timeliness of such motions.
the December 12 discovery conference, the parties continued
to confer about the time period issue. On December 22, 2016,
Plaintiffs sent Defendant an e-mail, memorializing their
agreement to split the costs for retrieving documents for the
period of 2004-2011.Plaintiffs did not mention any
communications regarding Defendant's Answers to their
Interrogatories. Also on December 22, Plaintiffs filed a
motion for extension of time to file a motion to compel.
Plaintiffs referenced their agreement with Defendant
regarding production of documents and asserted that a motion
to compel likely would not be necessary, but in any event
moved for “an extension of time to file a Motion to
Compel on Defendant's responses to Plaintiffs' First
and Second Requests for the Production of Documents and
Things for thirty (30) days from the proposed production
date, namely up to and including March 15,
2017.” The Court granted Plaintiffs' motion
on January 6, 2017.
February 2, 2017, pursuant to the parties' agreement,
Defendants produced additional documents from the entire
“Applicable Period” identified in Plaintiffs'
document requests. On February 28, Defendant supplemented
its Answers to Plaintiffs' Interrogatories by providing
additional information from 2013 through the date of its
supplementation. The parties met and conferred on March
6, 2017, at which time Plaintiff raised its concern that
Defendant provided supplemental information from only 2013
forward. Defendant again raised its objection as to the
applicable time period.
move to compel Defendant to fully answer Interrogatory Number
One with all relevant information from the “Applicable
Period” and full references to the individual
copyrighted works at issue in this case. Defendant responds
that Plaintiffs' motion is untimely and that a ruling in
favor of Plaintiffs would subject Defendant to unduly
burdensome and non-proportional discovery obligations. Before
proceeding to Defendant's arguments as to undue burden
and proportionality, the Court first addresses whether
Plaintiffs' motion is timely.
to D. Kan. Rule 37.1(b),
[a]ny motion to compel discovery in compliance with D. Kan.
Rules 7.1 and 37.2 must be filed and served within 30 days of
the default or service of the response, answer, or objection
that is the subject of the motion, unless the court extends
the time for filing such motion for good cause.
provision of the rules also appears in the Scheduling Order
in this case, with the added warning that, “Otherwise,
the objection to the default, response, answer, or objection
is waived. See D. Kan. Rule 37.1(b).” (ECF 27
Court has consistently held that the thirty-day period in
which to file a motion to compel is triggered when specific
information first leading to a dispute is discovered, and
this period is not tolled while the parties continue to