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ACT, Inc. v. Worldwide Interactive Network, Inc.

United States District Court, E.D. Tennessee, Knoxville

November 8, 2019

ACT, INC., Plaintiff,


         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

         Now before the Court are the following Motions: (1) Plaintiff's Motion to Compel [Doc. 113], [1] (2) Defendant's Motion to Compel Discovery [Doc. 135], and (3) Defendant's Motion to Compel De-Designation [Doc. 157]. The parties appeared for a hearing on July 8, 2019, with respect to Plaintiff's Motion to Compel. Attorneys Yasamin Parsafar and Thomas Scott, Jr., appeared on behalf of Plaintiff. Attorneys Jacob Horton, Raymond Stephens, Robert Pitts, Kyle Carpenter, and Chadwick Hatmaker appeared on behalf of Defendant. Following the hearing, Defendant filed the above Motions, and the Court finds oral argument unnecessary as to these Motions.

         The Court has considered the filings in this case, and for the reasons further explained below, the Court hereby GRANTS IN PART Plaintiff's Motion [Doc. 113] and Defendant's Motion [Docs. 135], and GRANTS Defendant's Motion [Doc. 157].

         I. ANALYSIS

         The Court will address the Motions in the order in which they were filed.

         A. Plaintiff's Motion to Compel

         By way of background, on May 17, 2019, the Court entered a Memorandum and Order [Doc. 89] (“May Order”), resolving a number of discovery disputes but allowing the parties to contact the Court if certain issues were not resolved. The instant disputes originate from Plaintiff's motion to compel and the May Order. Specifically, in the instant Motion, Plaintiff raises three issues: (1) Defendant's responses to Plaintiff's First Set of Interrogatories; (2) Defendant's damages-related information, and (3) Defendant's Supplemental Responses to Plaintiff's Additional Request for Production and Interrogatories.

         During the July hearing on these issues, the parties disagreed as to whether they had conducted a meet and confer. This disagreement is not new. See [Doc. 89 at 10] (explaining that counsel cannot agree as to whether they actually met and conferred). The parties also filed supplemental briefs detailing their respective positions on whether a meet and confer occurred. The Court has reviewed the emails, and for the most part, they simply contain one party's request for a meet and confer with a proposed date (the proposed date usually being the following day) and the other party's response that he/she is not available on the proposed date. It does not appear to the Court that either party is refusing to participate in a meet and confer. In any event, given that the issues were the subject of Plaintiff's previous motion and the Court directed Plaintiff to contact Chambers if the issues were not resolved, the Court finds it appropriate to consider the merits of Plaintiff's requests.

         1. Plaintiff's First Set of Interrogatories

         As mentioned above, Plaintiff raised this issue in its first motion to compel. After the hearing on this issue and prior to the Court issuing an order, Plaintiff served additional discovery, along with an “emergency motion, ” stating that it served additional discovery as an attempt to narrow discovery. Thus, it was not clear to the Court at the time whether Plaintiff's First Set of Interrogatories were still in dispute. The Court directed Plaintiff to contact Chambers if this issue was still in dispute, and Plaintiff did so.

         Here, Plaintiff argues that Defendant's responses to its First Set of Interrogatories are still deficient for the same reasons. Specifically, Plaintiff states that Defendant's responses contain legal positions and no factual information. At the July hearing, Defendant argued that the Court's May Order already determined the issue and that Plaintiff should have filed a new motion.

         The Court finds that Plaintiff was not required to file another motion. The Court explicitly directed Plaintiff to contact Chambers to set a hearing if the issue was still in dispute. Plaintiff did so, and therefore, the Court finds another motion reasserting the same arguments unnecessary.

         Turning to the merits of the dispute, the Court notes that Plaintiff's Interrogatories 1-19 request Defendant to state all facts in support of its defenses. Defendant utilized general objections, which this Court disfavors, and then objected to each Interrogatory on the basis that it is a contention interrogatory. Defendant also responded to the Interrogatories, in large part, by setting forth arguments and legal conclusions. In its response [Doc. 41] to Plaintiff's motion to compel, Defendant argued that it provided facts with respect to Interrogatory Nos. 4 and 5 and that while it responded to Interrogatory No. 4, the discovery request was premature. Defendant continued that it did set forth facts, but additional facts would potentially be discovered and that it would supplement accordingly. Defendant argued that it set forth facts in response to Interrogatory No. 10 and its responses to Interrogatory Nos. 12-14 incorporated the response to Interrogatory No. 10. Further, with respect to Interrogatory Nos. 8 and 14, Defendant states that the facts are equally available to Plaintiff.

         Federal Rule of Civil Procedure 33 governs interrogatories and the responses thereto. Rule 33(a)(2) states, “An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact . . .” The Sixth Circuit has recognized the “general view . . . that contention interrogatories are a perfectly permissible form of discovery.” Starcher v. Correctional Med. Sys., 144 F.3d 418, 421 n. 2 (6th Cir. 1998). The Court notes the Rule 33 authorizes the Court to defer answers to contention interrogatories “because they may create disputes between the parties which are best resolved after much or all of the discovery has been completed . . .” Wood for use & benefit of Johnson v. Nw. Airlines, Inc., No. 209CV02317BBDDKV, 2010 WL 11598163, at *4 (W.D. Tenn. Mar. 16, 2010) (citing Fed.R.Civ.P. 33(b) Advisory Committee Note (1970)).

         In the present matter, the original discovery deadline expired on July 30, 2019, and therefore, the Court finds it unnecessary to defer responses any longer. The Court has reviewed Defendant's responses to the Interrogatories, and for the reasons set forth below, the Court finds that Defendant has not provided sufficient factual answers to several Interrogatories.

         Specifically, the Court ORDERS Defendant to supplement its responses to Interrogatory Nos. 1-7, 11-17 because the responses contain little, if any, facts. For instance, Defendant points to Interrogatory Nos. 4 and 5 in support of its argument that it set forth facts in its responses. In response to these interrogatories, Defendant states that Plaintiff's work lacks sufficient creativity and originality to constitute copyrightable material. This response does not set forth any facts as to why such work lacks creativity or originality. Defendant continues in its response that Plaintiff consented to the uncontrolled use of such works by others, but Defendant does not provide any facts as to the identity of “others.” Similarly, with regard to the unfair competition and false designation claims in Plaintiff's Complaint, Defendant responds that ten states use Plaintiff's terms but Defendant only lists Georgia and South Carolina.[2] These are a few examples of the missing facts from Defendant's response.

         With respect to Interrogatory Nos. 12 and 13, Defendant incorporates “specifically including, but not limited to, ” facts set forth in specific paragraphs of its Answer and Counterclaim, and in response to Interrogatory Nos. 14, 15, and 17, Defendant incorporates the facts alleged in its Answer and Counterclaim. [Doc. 38-2] (Emphasis added). This practice is impermissible. See Atlanta Coca-Cola Bottling Co. v. Transamerica Ins. Co., 61 F.R.D. 115, 120 (N.D.Ga. 1972) (“Defendant is correct in stating that incorporation by reference of the allegations of a pleading is not a responsive and sufficient answer to an interrogatory.”); see also Ntakirutimana v. CHS/Cmty. Health Sys., Inc., No. CV L-09-114, 2011 WL 13135608, at *3 (S.D. Tex. June 28, 2011) (stating that “qualifiers, such as the ‘include, but are not limited to' used by Plaintiffs, render interrogatory answers vague, evasive and incomplete” and noting that “other district courts addressing the issue have specifically held that answers to interrogatories should not refer to pleadings or other documents”).

         With respect to Interrogatory Nos. 8-10, and 18-19, Defendant does provide some facts in response to these Interrogatories. Because the Court is not aware of “all the facts” in this case, however, Defendant SHALL supplement these interrogatories if there are additional facts it has uncovered throughout discovery in this case. See Fed. R. Civ. P. 26(e)(1) (explaining a parties' duty to supplement). Accordingly, Plaintiff's request is well taken in part, and the Court ORDERS Defendant to supplement its responses to the above Interrogatories on or before November 25, 2019.

         2. Defendant's Damages Information

         In the Court's May Order, the undersigned declined to order Defendant to provide its QuickBooks in “.QBW” format because Defendant represented that such a production would include active links to its financial institution accounts. [Doc. 89 at 20]. Further, Defendant stated that it produced detailed summaries of its assessment revenues from its business dealings in multiple states and that it would produce summaries of cost information once such summaries had been created. [Id.]. The Court ...

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