United States District Court, N.D. Indiana, Hammond Division
APEX COLORS, INC. Plaintiff,
CHEMWORLD INTERNATIONAL LIMITED, INC., CHEMWORLD INTERNATIONAL LIMITED, LLC, ATUL MODI, MANOJ MODI, and PAUL BYKOWSKI, Defendants.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Chemworld's Motion to
Reconsider Opinion and Order Regarding Sanctions for Failing
to Produce Cost and Profit Information [DE 527], filed by
Defendants Atul Modi, Manoj Modi, Chemworld International
Limited, Inc., and Chemworld International Limited, LLC
(collectively “Chemworld”) on August 6, 2017.
Plaintiff Apex Colors, Inc. filed a response on August 21,
2017. Chemworld's reply, which was due on August 28,
2017, was untimely filed, without leave of Court, on
September 2, 2017.
January 5, 2016, Apex issued written discovery requests to
Chemworld. Chemworld did not respond, prompting Apex to file
a Motion to Compel. Two of the requests at issue were
Apex's Interrogatories Nos. 3 and 4, which sought
revenues, costs, and profits on sales by Bykowski:
3. For the period 2003 to the present, state or identify
business records showing all payments received from customers
developed or identified by Paul Bykowski, and state or
identify business records showing what amount of that payment
went to Mr. Bykowski or another company or person at his
direction. Also state or identify business records itemizing
any expenses associated with these sales (for example, the
cost of Chemworld purchasing the product from a supplier).
4. For the period 2003 to the present, state or identify
business records showing profits attributable to sales from
customers developed or identified by Paul Bykowski.
(ECF 358, Ex. A).
March10, 2016, the Court denied the Motion to Compel as moot
because Chemworld had served discovery responses after the
motion was filed. (ECF 366). However, the Court granted fees
incurred in bringing the Motion to Compel under Federal Rule
of Civil Procedure 37(a)(5)(A). Id.
17, 2016, Apex and Chemworld met and conferred regarding
deficiencies in Chemworld's responses. Apex memorialized
the conversation in email correspondence to Chemworld the
same date, asking for complete interrogatory responses. For
Interrogatories 3 and 4, Apex wrote:
INT 3 and 4-this essentially asks for a breakdown of the
revenue and costs and profits made by Paul and CW. What you
provided are revenues for the dye and pigment sales. So what
we need are:
· That same information but in Excel so it can be
· The cost information
· The profit information for CW and Paul
I am assuming this is just [another] spreadsheet or two, and
please produce it in Excel. Please also send the spreadsheets
for dye and solvent sales pre-2013 in Excel format. I also
need to know if this is all sales made to Paul post 2012. I
think that will depend on when CW stopped paying Paul for lab
work separately and when it wrapped it into the higher cut of
(ECF 379-4) (Ex. E). Chemworld did not respond. (ECF 378, p.
27, 2016, Apex filed a second Motion to Compel related to the
same January 5, 2016 discovery, arguing that Chemworld's
March 10, 2016 interrogatory answers were incomplete. Apex
attached a copy of Chemworld's interrogatory responses as
an exhibit to the motion.
response to Interrogatory 3 provided:
Atul Modi, responding for himself, Manoj Modi and “the
Chemworld entities”, deposes and swears under oath that
he testified truthfully on April 17, 2015, commencing at page
361 of the transcript of the hearing on Apex's Motion for
Preliminary Injunction. As previously stated, and it is still
true today, that for the period 2003-2008 or 2009, neither
Atul, Manoj, nor any of the Chemworld entities “worked
with Paul Bykowski”. In 2008 or 2009, Chemworld began
supplying solvent dyes to Finos or Indace.
Other than those documents already produced, Atul Modi, Manoj
Modi and the Chemworld entities can only identify one (1)
additional business record showing all pigment sales to a)
[company A]; b) [company B]; c) [company C]; d) [company D];
and e) [company E]. Chemworld has previously produced all
business records available to itemize expenses associated
with sales generated by Paul Bykowski, relating to the supply
of solvent dyes (see Atul Modi's production of documents
in February and/or March 2015, as well as his Answers to
Interrogatories served by Apex's terminated counsel).
For the period of February 19, 2010 to December 31, 2012,
pigment sales to a) [company A]; b) [company B]; c) [company
C]; d) [company D]; and e) [company E] generated [an
identified dollar amount] in revenues, as shown by the only
available business record, identified as a spreadsheet to
track Paul's pigment sales. The available business record
identifies the date of the purchase (or the date of