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Apex Colors, Inc. v. Chemworld International Ltd., Inc.

United States District Court, N.D. Indiana, Hammond Division

October 23, 2017

APEX COLORS, INC. Plaintiff,
v.
CHEMWORLD INTERNATIONAL LIMITED, INC., CHEMWORLD INTERNATIONAL LIMITED, LLC, ATUL MODI, MANOJ MODI, and PAUL BYKOWSKI, Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         On 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).

         On 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.

         On May 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 sorted
· 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 the profits.

(ECF 379-4) (Ex. E). Chemworld did not respond. (ECF 378, p. 2).

         On May 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.

         Chemworld's 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 ...

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