United States District Court, S.D. Indiana, Indianapolis Division
BRIGHTPOINT DISTRIBUTION, LLC, an Indiana limited liability company, Plaintiff,
DIGITAL DATA DEVICES, INC., a New Jersey corporation, Defendant.
ORDER ON MOTION TO COMPEL AND REQUEST FOR
L. Pryor United States Magistrate Judge
matter comes before the Court on Plaintiff's Motion to
Compel Production of Sales Documents and Request for
Sanctions (Dkt. 104). The matter has been referred to the
Undersigned for a ruling. The Undersigned, having considered
the Motion and provided the parties an opportunity to discuss
the matter orally, now GRANTS IN PART and
DENIES IN PART Plaintiff's Motion.
Plaintiff asserts that the Defendant has failed to supplement
its discovery responses by withholding documents relating to
the sale of 16, 823 pieces of Jawbone UP products (the
“Jawbone Inventory”) to Cellular Network
Communication Group Limited (“Cellular Network”).
Thus, Plaintiff's Motion seeks to compel the production
of all documents relating to this sale and requested
sanctions for the Defendant's failure to supplement its
discovery responses. The Defendant contends that it should
not have to produce these documents because they are
irrelevant to the issues at trial, it has fully complied with
its discovery obligations, and Plaintiff's request for
the information is late.
evidence is relevant if it “makes the existence of any
fact at issue more or less probable.” Huddleson v.
United States, 485 U.S. 681, 687, 108 S.Ct. 1496, 99
L.Ed.2d 771 (1988). The documents that the Plaintiff seeks
are relevant to the issues presented at trial in this case
and, thus, are discoverable.
litigants are under a continuing obligation to supplement
their discovery responses if they later learn that a response
is materially incomplete or inaccurate. See,
Fed.R.Civ.P. 26(e). Parties may be relieved of this duty,
however, in two circumstances: (1) when the omitted
information has been made known to the other parties during
the discovery process or in writing; see Fed R. Civ.
P. 26(e)(1)(A); and (2) when the information sought is
publicly available and equally accessible. See In re Cook
Med., Inc., IVC Filters Mktg., Sales Practices & Prod.
Liab. Litig., No. 1:14-ML-2570-RLY-TAB, 2017 WL 4099209,
at *4 (S.D. Ind. Sept. 15, 2017); Ford v. Hamilton Cty.
Juvenile Court, No. 1:05-CV-557, 2007 WL 2302816, at *8
n. 6 (S.D. Ohio Aug. 8, 2007).
Plaintiff submitted Interrogatory No. 13 and Request for
Production No. 14 to Defendant, which sought information and
documentation concerning Defendant's attempts to sell the
Jawbone Inventory. (Dkt. 104-1 at 11, 26). Defendant
originally responded to these discovery requests in December
2016 and made supplemental production in February 2017. In
the supplemental production, Defendant noted that it had been
unsuccessful in attempting to sell the Jawbone Inventory.
months later, however, on July 11, 2017, Ely Eddi, the
principal and sole shareholder of Digital Data, was deposed.
During this deposition, Eddi testified that Digital Data had
sold the Jawbone Inventory for approximately $200, 000 to
year following the deposition, on July 13, 2018, Brightpoint
sent a letter to Digital Data requesting confirmation that it
was both still in possession of the Jawbone Inventory and
that it had produced all documents related to its efforts to
sell the inventory. In response, on July 19, 2018, Digital
Data provided Brightpoint with purchase orders that supported
Eddi's 2017 deposition testimony that it had sold the
Jawbone Inventory to Cellular Network. In addition, Digital
Data explained that even though it had sold the products, it
had not received any payments from Cellular Network. After
receiving the purchase orders, on July 23, 2018, Brightpoint
requested any additional documents that Digital Data had
related to the sale to Cellular Network, including a bill of
sale, invoices, and any communications.
Defendant argues that the Plaintiff's July 23, 2018
request for supplemental discovery is untimely and that,
therefore, Defendant should not have to produce the
supplemental documentation. Plaintiff is under no obligation
to request supplementation of discovery responses-it is
Defendant's duty to supplement its responses if they
materially change. See Arthur v. Atkinson Freight
Lines Corp., 164 F.R.D. 19, 20 (S.D.N.Y. 1995). When
Digital Data's responses regarding the sale of the
Jawbone Inventory materially changed, it was under an
obligation to supplement its discovery responses at that
time. Therefore, the Undersigned is not persuaded by the
Defendant's argument that the Plaintiff's discovery
request should be denied for being untimely.
the Plaintiff has requested that the Defendant be sanctioned
for failing to disclose the sale of the Jawbone Inventory.
The Undersigned does not believe that sanctions are
appropriate here. The Court is guided by Federal Rule of
Civil Procedure 37(c)(1). This Rule states in pertinent part:
If a party fails to provide information . . . as required by
Rule 26(a) or (e) the party is not allowed to use that
information . . . unless the failure was substantially
justified or is harmless. In addition to or instead of this
sanction the Court on motion and after giving an opportunity
to be heard: . . . may impose . . . appropriate sanctions.
Fed. R. Civ. P. 37(c)(1). In essence, Rule 37(c) requires the
Court to assess whether the offending party was substantially
justified in failing to comply or whether its failure was
harmless. See Musser v. Gentvia Health Services, 356
F.3d 751, 755 (7th Cir. 2004). The Undersigned finds that the
Defendant's failure to supplement was harmless. The
Defendant disclosed the sale of the Jawbone Inventory to
Plaintiff during the deposition of Mr. Eddi in July 2017, and
in response to the Plaintiff's request for documentation,
the Defendant provided the Plaintiff with purchase orders of
the sale. While the full production of this information was
untimely, the sale itself was adequately disclosed during
discovery. Additionally, any prejudice that the Plaintiff
might have suffered from the delayed disclosure has been
further mitigated by the Court's continuance of the bench
trial from August 20, 2018 to February 19, 2019 (Dkt. 120).
Plaintiffs Motion to Compel and Request for Sanctions is
GRANTED IN PART and DENIED IN
PART. Plaintiffs request to compel production is
GRANTED. On or before January 18,
2019, Defendant is ORDERED to
supplement its responses to Request for Production No. 14 and
Interrogatory No. 13 and produce all documents, related to
its efforts to sell the Jawbone Inventory to ...