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Brooks v. Motsenbocker Advanced Developments

October 29, 2007

GEORGE A. BROOKS; BROOKS INDUSTRIES, INC., PLAINTIFF,
v.
MOTSENBOCKER ADVANCED DEVELOPMENTS, INC.; GREGG A. MOTSENBOCKER; SKIP A. MOTSENBOCKER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge

ORDER:

(1) DENYING IN PART PLAINTIFF'S MOTION TO COMPEL;

(2) DENYING REQUEST TO IMPOSE SANCTIONS; and

(3) DENYING WITHOUT PREJUDICE

MOTION TO ENTER PROTECTIVE

ORDER

[Doc. No. 29]

George Brooks and Brooks Industries, Inc. ("Plaintiffs") have filed a motion to compel Motsenbocker Advanced Developments, Inc. ("MAD"), Gregg Motsenbocker and Skip Motsenbocker (collectively, "Defendants") to provide initial disclosures as required by Federal Rule of Civil Procedure 26(a)(1) and this Court's June 27, 2007 Order setting Rule 26 compliance deadlines. Plaintiffs also request sanctions and move for a protective order. Defendants oppose, arguing that they did provide initial disclosures and that the motion to compel, request for sanctions and motion for protective order are premature. For the following reasons, the Court DENIES in part the motion to compel, DENIES the request for sanctions and DENIES without prejudice the motion for protective order. Defendants' Initial Disclosures.

Plaintiffs' lead counsel, Michael Trevelline of Washington D.C., filed Plaintiffs' moving papers and asserted that Defendants failed to make any initial disclosures. Mem. Ps.&As. p.5, ll.2-3. Defendants, however, clarified that they in fact sent their initial disclosures to Plaintiffs' local counsel, Peter Shenas, on August 1, 2007, and that since August 1 Defendants' documents have been available for Plaintiffs to copy. In reply, Plaintiffs argue that Defendants' initial disclosures were woefully inadequate as they fail to address several key issues in the complaint.

Trevelline said that because Defendants failed to provide meaningful initial disclosures, on August 16, 2007 Plaintiffs sent requests for production and interrogatories that included requests for the same information that should have been provided in the initial disclosures. Defendants did not respond to the discovery. Trevelline then explained that on August 24 and September 10, 2007, Shenas personally met with Defendants' counsel to resolve these discovery disputes. Ultimately, Plaintiffs gave Defendants an extension of time to respond to discovery that did not concern the initial disclosures, but did not extend the time for them to provide further initial disclosure information.*fn1

Rule 26(a)(1) requires that a party, without awaiting a discovery request, must disclose the name, and if known, the address and telephone number of potential witnesses, categories of documentary evidence, computation of damages and insurance information. Parties have a duty to supplement disclosures made under Rule 26(a)(1) if they learn that (1) their initial disclosures are incomplete or incorrect; and (2) "the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. Proc. 26(e). According to Rule 26(a)(3), "[a]s trial approaches, the parties must then choose their trial witnesses and exhibits from this list of persons and documents they have disclosed pursuant to Rule 26." Crafton v. Blaine Larsen Farms, Inc., 2006 U.S. Dist. LEXIS 27999, *2 (D. Idaho 2006).

Here, Defendants disclosed this information: (A) they identified as witnesses the two individual defendants and all witnesses Plaintiffs identified;*fn2 (B) they identified as categories of evidence all documents produced in the Maryland action, form agreements for Defendants' contracts, videos of certain products, product labels and patents and accounting and shipping documents; (C) they contend that Plaintiffs are not entitled to damages; and (D) there is no insurance coverage for this claim. Opp'n, Ex. A. Plaintiffs argue these disclosures are inadequate because they do not address several key issues in the complaint and that they cannot prepare for Defendants' defenses. Plaintiffs assert that Defendants refuse to produce the information because they believe they have no liability to Plaintiffs, so need not produce it.

The Court finds that Defendants did provide initial disclosures that cover the four requirements of Rule 26(a)(1). While the disclosures fail to address several items in the complaint, Defendants are free to supplement those disclosures as they become aware of further information. To the extent Defendants are already aware of information but have not yet disclosed it, they must do so by November 7, 2007. Further, Plaintiffs are free to conduct discovery into additional matters, per Rule 26(a)(5).*fn3

Finally, at trial Defendants will be limited to using only the witnesses and exhibits they identify in their initial ...


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