J&M Industries, Inc. v. Raven Industries, Inc.

          MEMORANDUM & ORDER ON MOTION TO COMPEL

          HON. KENNETH G. GALE, U.S. MAGISTRATE JUDGE

         The this is a patent infringement case, brought pursuant to 35 U.S.C. § 271, et seq. The parties are competitors in the grain storage cover industry. Now before the Court is Defendant's Motion to Compel. (Doc. 102.) Defendant brings the present motion based on Plaintiff's alleged “deficient responses and . . . refusal to timely produce . . . important core documents. (Doc. 103, at 4.) The discovery requests at issue will be discussed and addressed individually herein. Having reviewed the submissions of the parties, Defendant's motion is GRANTED in part as more fully set forth below.

         ANALYSIS

         I. Legal Standards.

         Fed.R.Civ.P. 26(b) states that

[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, considering the importance of the issues at state 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).

         II. Meet & Confer.

         As an initial matter, Plaintiff argues that Defendant filed the present motion “in blatant violation of the Federal Rules and this Court's local rules, ” particularly Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2. (Doc. 109, at 2.) Federal Rule 37(a)(1) requires that a motion to compel discovery “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Pursuant to D. Kan. Rule 37.2, “[t]he court will not entertain any motion to resolve a discovery dispute . . . unless the attorney for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion.”

         Plaintiff concedes that the parties “conducted telephonic meet and confers on three different occasions.” (Doc. 109, at 2.) Even so, Plaintiff contends that a litany of the issues addressed in Defendant's Motion to Compel were not raised during that meet and confer process. (Id., at 2-3.) Defendant, however, contends that all issues addressed in the motion were discussed by the parties. (Doc. 111, at 3-4.) According to Defendant, the issues were either memorialized in Defendant's “golden rule” letter or are included in defense counsel's notes from the parties' discussions. (Id.)

         The Court obviously was not present during the parties' meet and confer sessions. As such, based on the parties' discussion of these communications in the submitted briefings, the Court has no way of determining whether Plaintiff or Defendant has more accurately summarized the topics discussed. As such, the Court will not deny portions of Defendant's motion on this technical issue but will instead address the discovery requests at issue on their substantive merits.

         III. Rolling Production.

         Although not reflected in the Scheduling Orders (Docs. 23, 65), the parties apparently agreed at the beginning of this case that documents may be produced on a “rolling” basis. This type of cooperation agreement is encouraged by this Court. Its source is the “Trial by Agreement” site maintained by Stephen D. Susman (trialbyagreement.com). The purpose of such an agreement is to “produce documents on a rolling basis as soon as they have been located and copied.” Id. This agreement is not a license to produce documents at some vague “later” date, or to produce them when convenient. Such documents should be produced within a reasonable time after the response is submitted. The agreement's purpose is to avoid the delay caused by waiting to produce any documents until all have been compiled, and to recognize that additional responsive documents may come into a party's possession or control during the litigation.

         Of course, subsequently acquired responsive documents would activate a duty to supplement under Fed.R.Civ.P. 26(e). In any event, documents in this case which were within the custody or control of the plaintiff at the time of the original discovery responses (May of 2017) should have been produced long ago. This Order requires all responsive documents be produced within thirty (30) days of the date of this Order.

         IV. Discovery Requests at Issue.

         A. General Objections.

         As an initial matter, Plaintiff includes the following general objection at the beginning of its responses to Defendant's First and Second Interrogatories:

Plaintiff objects to the requests to the extent they call for information subject to the work product doctrine, the attorney-client privilege, joint defense privilege, privilege for the opinions of or facts known or held by non-testifying experts, and any other applicable privilege, protection or immunity.

(See Doc. 103-3, at 1; Doc. 103-9, at 1.)

         This Court has unequivocally ruled that such objections are improper.

This Court has specifically held that ‘[t]hese type of objections are, at best, worthless and improper.' Martin K. Eby Const. Co., Inc. v. OneBeacon Ins. Co., 08- 1250-MLB-KGG, 2012 WL 1080801 (D.Kan. March 29, 2012) (citing Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 660-61 (D.Kan.2004). ‘‘Such objections are considered mere hypothetical or contingent possibilities, where the objecting party makes no meaningful effort to show the application of any such theoretical objection to any request for discovery.'' Id. At worst, these types of objections leave the requesting party ‘unsure whether or not the objection correlates to withheld information.'

Everlast World's Boxing Headquarters Corp. v. Ringside, Inc., No. 13-2150-CM-KGG, 2014 WL 2815515, at *2-3 (D. Kan. June 23, 2014). As such, Plaintiff's general objections are overruled. This determination does not, however, apply to instances in which Plaintiff subsequently raised these specific objections in response to specific discovery requests.

         B. Interrogatory No. 12.

         Interrogatory No. 12 asks Plaintiff to “[i]dentify by name and location each and every site or place where there is a grain storage system that includes a Raven product and that you contend infringes any claim of the ‘239 patent.” (Doc. 103-3, at 1.) Plaintiff objects that the interrogatory is unduly burdensome because Defendant “is in ...