United States District Court, E.D. North Carolina, Western Division
E. GATES, UNITED STATES MAGISTRATE JUDGE
case comes before the court on a motion (D.E. 79) by
plaintiff/counter-defendant Thompson Automotive Labs, LLC
("plaintiff) to compel supplemental responses to
interrogatories nos. 11, 13, 15, and 18 and requests for
production of documents nos. 21-25, 62-68, 79, 82, 85, and
91-96 in its first set of discovery requests to
defendant/counter-plaintiff Illinois Tool Works Inc.
("defendant" or "ITW"). Defendant opposes
the motion, which has been fully briefed., For the reasons
set forth below, the motion will be denied.
claims arise from an Exclusive Supply Agreement (the
"Agreement") entered into by the parties.
See 1st Supp. Compl. ("complaint") (D.E.
21) ¶¶ 1. Specifically, under the Agreement,
defendant agreed to purchase a certain number of plaintiff s
Combustion Performance Test Tools, or CPT Tools. Id.
¶¶ 1, 29. After an attempt by defendant to purchase
plaintiffs CPT Tool technology was not successful, plaintiff
contends that defendant breached the Agreement and marketed
and sold a competing product, the AutoEKG, a product which it
contends infringes plaintiffs trademarks and trade dress.
Id. ¶¶ 60, 75. In its complaint, plaintiff
asserts claims for breach of contract (id.
¶¶ 104-07); trademark and trade dress infringement
(id. ¶¶ 108-18); inducement of trademark
and trade dress infringement (id. ¶¶
119-24); false advertising and unfair competition
(id. ¶¶ 125-33); violations of the North
Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen.
Stat. § 75.1-1 et al. (id. ¶¶
134-39); and cancellation of United States trademark
registration no. 4, 771, 676 (id. ¶¶
140-49). Defendant asserts a number of affirmative defenses
as well as counterclaims for breach of contract (Am. Aff.
Defs. & Counterclaims (D.E. 43) ¶¶ 47-52);
fraudulent misrepresentation (id. ¶¶
53-62); fraudulent concealment (id. ¶¶
63-73); negligent misrepresentation (id.
¶¶ 74-83); violations of the North Carolina Unfair
and Deceptive Trade Practices Act (id. ¶¶
84-90); and rescission based on unilateral mistake
(id. ¶¶ 91-98) or alternatively,
rescission based on mutual mistake (id. ¶¶
99-108). Plaintiff denies the material allegations of the
counterclaims. See generally Ans. to Am.
Counterclaims (D.E. 44).
served its first set of interrogatories (Interrogs. (D.E.
80-1)) and first requests for production of documents (Prod.
Reqs. (D.E. 80-2)) on 26 January 2016. On 29 February 2016,
defendant served its responses to the discovery requests.
See Resp. to Interrogs. (D.E. 80-3); Resp. to Prod.
Reqs. (D.E. 80-4). Defendant objected to all the discovery
requests at issue. In response to interrogatory no. 11, it
stated that it would provide no additional information; in
response to interrogatories nos. 13 and 15, it stated that it
would provide information after entry of an acceptable
protective order; and in response to interrogatory no. 18, it
provided some of the information requested. See
Resp. to Interrogs. Nos. 11, 13, 15, 18. In response to
production requests nos. 22, 24, 91, 93, and 95, defendant
stated that it would produce some documents requested after
entry of an acceptable protective order; and in response to
the other production requests that it would not produce any
of the documents requested. See Resp. to Prod. Reqs.
Nos. 21-25, 62-68, 79, 82, 85, 91-96. A protective order was
entered on 3 October 2016 (D.E. 66). On 8 February 2017 and 9
February 2017, plaintiff notified defendant of alleged
deficiencies in defendant's responses. See 8
Feb. 2017 Ltr. (D.E. 80-5); 9 Feb. 2017 Ltr. (D.E. 80-6).
Defendant served supplemental responses to interrogatories
nos. 13, 15, and 18 on 27 February 2017. Supp. Resp. to
Interrogs. (D.E. 80-7) Nos. 13, 15, 18. Defendant did not
serve any supplemental responses to the production requests.
In an email sent 15 May 2017 (consisting of pp. 2-3 of D.E.
82-4), plaintiff requested that the discovery requests at
issue in its motion be included in a telephonic discovery
conference with the court which defendant had requested
pursuant to § II.D of the Case Management Order
("CMO") (D.E. 32) (see 3 May 2017 Email
(consisting of pp. 7-8 of D.E. 82-4)).
conference was held on 23 May 2017. See Minute Entry
on 23 May 2017 Conf. In a written order entered that day
memorializing deadlines stated during the conference, the
court permitted plaintiff to file by 6 June 2017 a motion
relating to the matters presently at issue if they were not
resolved by that date by the parties. See Ord. on 23
May 2017 Conf. (D.E. 77) ¶ 3. Plaintiff filed the
instant motion to compel on that date.
the discovery requests as to which plaintiff seeks an order
compelling supplemental responses are interrogatories nos.
11, 13, 15, and 18 and requests for production of documents
nos. 21-25, 62-68, 79, 82, 85, and 91-96. These discovery
requests relate to (1) financial information concerning
defendant's liquids, supplies, or other related products,
and (2) technical data regarding defendant's AutoEKG.
Defendant opposes the motion, arguing that it is untimely and
seeks production of information and documents not relevant
under the Federal Rules of Civil Procedure.
APPLICABLE LEGAL PRINCIPLES
Federal Rules of Civil Procedure enable parties to obtain
information by serving requests for discovery on each other,
including interrogatories and requests for production of
documents. See generally Fed. R. Civ. P. 26-37. Rule
26 provides for a broad scope of discovery:
Parties 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 stake 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.
Civ. P. 26(b)(1).
district court has broad discretion in determining relevance
for discovery purposes. Seaside Farm, Inc. v. United
States, 842 F.3d 853, 860 (4th Cir. 2016); Watson v.
Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992).
The party resisting discovery bears the burden of
establishing the legitimacy of its objections. Eramo v.
Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016)
("[T]he party or person resisting discovery, not the
party moving to compel discovery, bears the burden of
persuasion." (quoting Kinetic Concepts, Inc. v.
ConvaTec Inc., 268 F.R.D. 226, 243 (M.D. N.C. 2010)));
Brey Corp. v. LQMgmt., LLC, No. AW-1 l-cv-00718-AW,
2012 WL 3127023, at *4 (D. Md. 26 Jul. 2012) ("In order
to limit the scope of discovery, the 'party resisting
discovery bears the burden of showing why [the discovery
requests] should not be granted." (quoting Clere v.
GC Servs., LP., No. 3:10-cv-00795, 2011 WL 2181176, at
*2 (S.D. W.Va.3 June 2011))).
governs interrogatories. Fed.R.Civ.P. 33. It provides that
"[u]nless otherwise stipulated or ordered by the court,
a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts."
Fed.R.Civ.P. 33(a)(1). Rule 33 requires that a party served
with interrogatories answer each fully under oath to the
extent that the party does not object to the interrogatory.
Id. (b)(3). Objections not made timely are waived,
subject to the court excusing the untimeliness for good
cause. Id. (b)(4).
governs requests for production of documents. A party
asserting an objection to a particular request "must
specify the part [to which it objects] and permit ...