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Tarvisium Holdings, LLC v. Dukat, LLC

United States District Court, W.D. Missouri, Western Division

January 10, 2020

TARVISIUM HOLDINGS, LLC, and 45N12E, LLC, Plaintiffs,
v.
DUKAT, LLC, 36LOWER, INC., ELLIOTT KATTAN, and BEN SCHWARTZ, Defendants.

          ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS

          GREG KAYS, JUDGE UNITED STATES DISTRICT JUDGE

         This lawsuit arises from Plaintiffs' purchase of an e-Commerce business, Essential Hardware. Now before the Court is, once again, the discovery dispute between the parties concerning the discovery of electronically stored information (“ESI”) and Plaintiffs' Renewed Motion to Compel Defendants' Discovery and for Sanctions (Doc. 74). The motion is GRANTED IN PART.

         Facts

         Plaintiffs filed this lawsuit in February 2019. Four months later, the Court entered its first scheduling order (Doc. 34), which included a discovery deadline of November 15, 2019; dispositive motion deadline of December 16, 2019; pretrial conference setting for June 22, 2020; and trial setting to begin on July 13, 2020.

         On August 23, 2019, Plaintiffs filed a motion to extend the scheduling order's deadlines (Doc. 57), which outlined several discovery issues, namely that Defendants had failed to engage meaningfully in discovery. Defendants agreed an amended scheduling order was necessary (Doc. 62).

         Four days later, Plaintiffs filed a brief addressing their concerns regarding Defendants' failure to comply with the principles of discovery for ESI (Doc. 58). Defendants' response accused Plaintiffs of also failing to complete discovery (Doc. 59). Defense counsel stated they have repeatedly informed their clients of their duty to preserve and retain all relevant information, and they answered some concerns Plaintiffs have about the collection of ESI. In their responsive briefing, Plaintiffs offered to meet and confer about the issues.

         Thus, on September 2, 2019, the Court issued an order (Doc. 63) to aid all parties to better facilitate discovery and meet deadlines. The Court noted that the ESI Principles promulgated by the Court for the Western District of Missouri, including going through the recommended checklist during a Rule 26(f) meet and confer conference at the outset of discovery, would help the parties resolve any remaining ESI disputes and avoid future disputes over ESI. To ensure counsel communicate effectively and minimize discovery problems related to ESI, the Court ordered the following:

Lead counsel for the parties shall participate in a meet-and-confer conference by September 10, 2019. At this conference, lead counsel shall be prepared to discuss: (1) Defendants' and Plaintiffs' ESI systems; (2) the specific steps that have been taken to preserve them; (3) appropriate ESI date ranges, sender, receiver, custodian, search terms, and similar parameters. The parties shall use the ESI checklist promulgated by the Court to guide these discussions. Additionally, lead counsel shall also be prepared to discuss (4) any specific concerns Defendants have with respect to ESI or traditional discovery in this case. To ensure Plaintiffs are prepared to discuss any discovery concerns Defendants may have, Defendants shall notify Plaintiffs in writing at least 24 hours before this meeting of any specific discovery concerns they would like the parties to address.

(Doc. 63 at 2). Ten days later, the Court amended the scheduling order (Doc. 67). As is relevant here, the Court ordered ESI to be substantially produced by September 30, 2019, and it extended the discovery deadline to January 21, 2020.

         On November 5, 2019, Plaintiffs' counsel filed a motion to compel discovery (Doc. 69). Plaintiffs argued that Defendants had failed to meaningfully participate in discovery or to fulfill their discovery obligations. In response, Defendants acknowledged their failure but represented to Plaintiffs-and to this Court-that they would fulfill their discovery obligations “within approximately two (2) to three (3) weeks…” or by December 10, 2019. (Doc. 70 at 4). The Plaintiffs agreed to this timeline, and the Court denied Plaintiffs' motion to compel as moot (Doc. 69).

         When Defendants did not meet their December 10, 2019 deadline, Plaintiffs filed this renewed motion to compel discovery and for sanctions (Doc. 74). Plaintiffs' counsel suggest that Defendants' counsel have provided woefully insufficient responses to document requests for over six months. Plaintiffs seek the production of documents and ESI stemming from its First Requests for Production and Interrogatories, which was served on Defendants on May 17, 2019.

         Defendants respond (Doc. 76), arguing that Plaintiffs only just completed their document production for ESI on December 6, 2019. Defendants also argue that Plaintiffs have failed to respond to their requests for discovery sent on or about May 3, 2019.

         In their reply brief (Doc. 77), Plaintiffs acknowledge that Defendants' refusal to engage meaningfully in discovery has delayed their own production. Plaintiffs also note that Defendants have not filed any discovery motion against them, and to date, only Plaintiffs have meaningfully fulfilled their discovery obligations. Plaintiffs argue that Defendants refused to even engage in discussion about search terms and ESI related issues before and after the Court's September 30, 2019 deadline for the parties to produce ESI. Despite Defendants' stonewalling, Plaintiffs nonetheless completed their production of 95% of its documents and ESI.

         Plaintiffs now move for the Court to issue an order: “(1) compelling Defendants to produce the documents requested by Plaintiffs in their May 17, 2019 requests by December 20, 2019; (2) award Plaintiffs their attorneys' fees, costs, and expenses for bringing both motions to compel; (3) strike Defendants' pleadings; and (4) enter an order of ...


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