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Energy Intelligence Group, Inc. v. CHS McPherson Refinery, Inc.

United States District Court, D. Kansas

June 26, 2017




         Plaintiffs 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.

         I. Procedural History

         Plaintiffs 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.

         Defendant responded to both of Plaintiffs' discovery requests on May 2, 2016.[1] 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.”[2] 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 2012.[3]

         On 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.[4] Plaintiffs requested that Defendant supplement its document production and Answers to the Interrogatories “for the entire Applicable Period for each response.”[5]

         Defendant 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.[6]

         On 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.[7] 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.[8]

         Plaintiffs 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.[9] Defendant also sent a letter to the Court on November 8, 2016, summarizing the dispute about the time period for discovery responses.[10]

         The 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.[11]

         After 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.[12]Plaintiffs did not mention any communications regarding Defendant's Answers to their Interrogatories.[13] 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.”[14] The Court granted Plaintiffs' motion on January 6, 2017.

         On February 2, 2017, pursuant to the parties' agreement, Defendants produced additional documents from the entire “Applicable Period” identified in Plaintiffs' document requests.[15] On February 28, Defendant supplemented its Answers to Plaintiffs' Interrogatories by providing additional information from 2013 through the date of its supplementation.[16] 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.

         II. Discussion

         Plaintiffs 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.

         Pursuant 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.[17]

         This 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 at 9)

         This 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 ...

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