United States District Court, Southern District of Indiana, Indianapolis Division
HECKLER & KOCH, INC., and HECKLER & KOCH GMBH, Plaintiffs/Counterclaim Defendants,
GERMAN SPORT GUNS GMBH, and AMERICAN TACTICAL IMPORTS, INC., Defendants/Counterclaimants, AND GERMAN SPORT GUNS GMBH, AMERICAN TACTICAL IMPORTS, INC., Third-Party Plaintiffs,
G. WAYNE WEBER AND NIELS IHLOFF, Third-Party Defendants.
ORDER ON MOTIONS TO COMPEL
Tim A. Baker, United States Magistrate Judge
There have been a series of escalating discovery disputes in this case. This unfortunate trend continues with the two motions to compel filed contemporaneously by Plaintiffs Heckler & Koch Inc/GmbH and Third-Party Defendants G. Wayne Weber and Niels Ihloff. [Filing No. 208; Filing No. 210.] These motions revisit discovery disputes discussed in an August 7, 2013, telephonic conference between Plaintiffs, Third-Party Defendants, and Defendants German Sport Guns and American Tactical Imports. After the conference, GSG and ATI agreed to provide supplemental written responses but failed to do so by the deadline. This missed deadline brought about the present motions to compel, which raise over forty discovery-related issues and seek to have the Court examine the minutiae of discovery. Given the number of issues raised by these motions, it is neither practical nor plausible for line-by-line, document-by-document review. Such painstaking scrutiny is beyond what is necessary to resolve these discovery motions. For the reasons set forth below, Third-Party Defendants’ motion to compel [Filing No. 208] and Plaintiffs’ motion to compel [Filing No. 210 ] are granted in part and denied in part. Third-Party Defendants’ and Plaintiffs’ requests for reasonable attorney’s fees and costs incurred in bringing these motions are also denied.
On August 7, 2013, the parties participated in a telephonic status conference with the Court. Plaintiffs HK and Third-Party Defendants G. Weber Wayne, HK USA’s President, and Niels Ihloff, managing director of HK GmbH, disputed Defendants’ objections and responses to several interrogatories and requests for production. Some of the issues were resolved; however, the Court was unable to address every discovery dispute.
Following the telephonic conference, Defendants agreed to provide supplemental written responses to certain discovery requests by September 6, 2013. They failed to do so and notified opposing parties that they had not completed their responses. However, Defendants did not provide a new date of completion as Plaintiffs and Third-Party Defendants requested. On September 18, 2013, Plaintiffs and Third-Party Defendants filed their motions to compel. By September 23, Plaintiffs and Third-Party Defendants received Defendants’ supplemental responses, which resolved certain issues addressed in their motions to compel. [Filing No. 216; Filing No. 217.] Still, over forty discovery issues remain.
Parties may obtain information regarding any relevant nonprivileged matter, subject to the limitations imposed under Fed.R.Civ.P. 26. See U.S. ex rel. McCartor v. Rolls-Royce Corp., No. 1:08-cv-00133-WTL-DML, 2013 WL 5348536, at*2 (S.D. Ind. Sept. 24, 2013). Rule 26(b)(2)(C) empowers the Court to limit the extent of discovery if it is unreasonably cumulative, duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). Discovery may further be limited if the burden outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. Pro. 26(b)(2)(C). That is to say, courts have the flexibility and discretion “to assess the circumstances of the case and limit discovery accordingly to ensure that the scope and duration of discovery is reasonably proportional to the value of the requested information, the needs of the case, and the parties’ resources.” Kleen Prods. LLC v. Packaging Corp. of Am., No. 10-C-5711, 2012 WL 4498465, at *9 (N.D. Ill. Sept. 28, 2012).
A. Prior litigation and settlement discovery requests
Plaintiffs’ and Third-Party Defendants’ motions to compel assert several discovery disputes relating to prior litigation and settlement between the parties. Third-Party Defendants and Plaintiffs seek documents held by Defendants’ former counsel Alston and Bird that relate to the settlement of prior litigation. These documents are allegedly relevant to “any discovery requests.” [Filing No. 211, at ECF p. 16; Filing No. 231, at ECF p. 9.] In response, Defendants assert the attorney-client privilege and work product doctrine. Defendants’ argument that Plaintiffs failed to provide a basis for waiving such privileges is well taken. Plaintiffs’ statement that these documents likely relate to “any discovery request” is not enough to overcome Defendants’ privileges. Absent an adequate reason to necessitate waiver, documents relating to settlement (specifically the Alston and Bird documents) are privileged and production is thus denied. See Hollinger Intern. Inc. v. Hollinger Inc., 230 F.R.D. 508, 511 (N.D. Ill. 2005) (“[A] burden rests on the one [who] would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.”) (quoting Hickman v. Taylor, 329 U.S. 495, 512 (1947)).
Plaintiffs seek to compel Defendants to identify all drawings provided to the mediator in settlement discussions. [Filing No. 211, at ECF p. 7.] Defendants argue that the Court should find such documents privileged, as producing these documents would have a chilling effect on parties engaged in settlement negotiations. Though there is no recognized federal privilege, the Court finds a strong public policy argument for preserving the confidentiality of these drawings. Settlement negotiations encourage candor among participants so as to facilitate and promote settlement. Permitting discovery of communications that occurred during the mediation process would chill any potential candor and cooperation among parties. Moreover, responsive information is obtainable from other discovery sources, such as depositions or the use of an expert. Accordingly, Defendants are not required to respond to Plaintiffs’ interrogatories concerning drawings provided to the mediator. In a related interrogatory, Third-Party Defendants seek a list of any benefit Defendants received from the settlement agreement. [Filing No. 209 at 8.] This request is vague. Accordingly, Defendants are not required to supplement their interrogatory answer or produce responsive documents.
However, the Court grants Plaintiffs’ request for production of invoices for legal services incurred in prior litigation because Defendants’ claim for damages includes fees. [Filing No. 211, at ECF p. 31.] Invoices speak directly to Defendants’ damage claim and must be produced. However, limited redaction is permitted so as to remove any thought process of legal counsel. Defendants argue that contention requests for production are improper in that they exceed the scope of Rule 26. [Filing No. 221, at ECF p. 19; Filing No. 222, at ECF p. 13-15.] Third-Party Defendants and Plaintiffs argue such requests are appropriate because they are entitled to documents relevant to Defendants’ defenses but they concede that they merely seek what is required under Rule 26. Third-Party Defendants and Plaintiffs are entitled to production of documents relevant to Defendants’ damage claims. Contention requests for production are reasonable and potentially useful to contention interrogatories, assuming that the requests for production themselves are valid. See Burnett & Morand Partnership v. Estate of Youngs, No.3:10-cv-3-RLY-WGH, 2011 WL 1237950, at *2–3 (S.D. Ind. Apr. 4, 2011) (finding contention requests for production appropriate “to bring to light the parties’ position in an informed and controlled manner that winnows down the resolution of a dispute”). Rule 34 allows a party to serve requests for production of documents that are within the scope of Rule 26. Id. With that said, Defendants must produce documents supporting damage claims under Plaintiffs’ request for production 41 to GSG and 43 to ATI that are within the scope of Rule 26. Third-Party Defendants request production of documents that support Defendants’ answers to the interrogatories included in their motion to compel. To the extent the Court finds these interrogatories valid, Defendants must also produce Third-Party Defendants’ contention requests for production.
Defendants contest Third-Party Defendants’ interrogatory concerning HKI’s alleged lack of standing because it inappropriately seeks a legal conclusion. [Filing No. 231, at ECF p. 4.] The Court disagrees. Third-Party Defendants’ interrogatory merely requests facts that support Defendants’ ...