The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge
MEMORANDUM AND ORDER DENYING PLAINTIFFS' MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY AND PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS (Docket No. 69)
On September 6, 2011, plaintiffs MGA Entertainment, Inc. and Little Tikes Company, Inc. (collectively, "Plaintiffs") and defendants National Products Ltd. and Playmind Ltd. (collectively, "Defendants") filed a Joint Stipulation regarding Plaintiffs' Motion to Compel Further Responses to Written Discovery and Production of Documents (the "Motion to Compel" or "MTC Jt. Stip."). (Dkt. No. 69). On September 13, 2011, Defendants filed a Supplemental Memorandum in Opposition to Plaintiffs' Motion to Compel ("Defs.' MTC Supp. Memo.") including the declaration of Steven H. Haney ("Haney MTC Decl."). (Dkt. No. 77). That same day, Plaintiffs filed a Supplemental Memorandum in Support of the Motion to Compel ("Pls.' MTC Supp. Memo.") including the declaration of Robert M. Collins ("Collins MTC Decl."). (Dkt. No. 78). On September 16, 2011, Plaintiffs filed a supplemental declaration of Robert M. Collins under seal ("Collins MTC Supp. Decl."). (Dkt. Nos. 83-84). For the reasons stated below, the Court DENIES Plaintiffs' Motion to Compel.
I. OVERVIEW OF THE PARTIES' CONTENTIONS
Plaintiffs seek an order requiring Defendants to supplement their production of documents responsive to Plaintiffs' Requests for Production Nos. 16-27, 36 and 38, which concern Defendants' identification of and communications and agreements with third party manufacturers, distributors and retailers from 2006 to the present, including documents related to Defendants' "Talking Train" products that do not bear Plaintiffs' "Little Tikes" logo. (MTC Jt. Stip. at 7-21). Plaintiffs argue that Defendants are willfully withholding documents or have not conducted an adequate search for responsive documents. (See, e.g., id. at 9). Plaintiffs also complain that counsel for Defendants offered to provide information describing Defendants' methods for collecting and producing documents but has not yet done so. (Id. at 5). Plaintiffs seek sanctions in an unspecified amount for Defendants' failure to comply with their discovery obligations and alleged spoliation of documents. (Id. at 21-25).
Defendants contend that they have produced all documents responsive to Plaintiffs' requests. (Id. at 6). Defendants further argue that to the extent that Plaintiffs seek documents "that reflect National Products['] sale of [its Talking Train] products that do not bear [Plaintiffs'] 'Little Tikes' logo," the requests seek irrelevant information that Defendants should not be required to produce. (Id. at 6-7).
A. Plaintiffs Have Failed To Satisfy Their Burden Of Establishing That Defendants Have Not Complied With Their Discovery Obligations Plaintiffs' Motion to Compel seeks an order from this Court requiring Defendants to supplement certain discovery responses based largely on speculation that Defendants have additional documents within their possession, custody or control which Defendants have improperly refused to produce. (See generally MTC Jt. Stip. at 2-5). However, at this time, there is no persuasive evidence before this Court that Defendants have failed to comply with their discovery obligations. Consequently, Plaintiffs' Motion to Compel is DENIED.
Defendants assert that they have already produced all documents in their possession, custody and control that are responsive to Plaintiffs' requests. (MTC Jt. Stip. at 6). A court cannot order a party to produce documents that do not exist. Plaintiffs' mere suspicion that additional documents exist does not justify a motion to compel. See e.g., Bethea v. Comcast, 218 F.R.D. 328, 329 (D.D.C. 2003) (a party's suspicion that another party has failed to respond to document requests does not justify compelled inspection); Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D.D.C. 2000) (a party's mere suspicion that its opponent must have documents that it claims not to have is insufficient to warrant granting motion to compel); Ayala v. Tapia, 1991 WL 241873 at *2 (D.D.C. 1991) (denying motion to compel because moving party could not identify documents that were withheld). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814 at *5 (E.D. Cal. 2010) (defendants' assertion that they are unable to locate responsive documents does not provide a ground for granting a motion to compel "unless Plaintiff can identify a specific document that Defendants have withheld").
Although Plaintiffs argued at the hearing that documents produced by third parties suggest that Defendants have additional responsive documents, counsel for Defendants explained that the documents Plaintiffs referred to reflected communications between distributors, manufacturers and retailers and third parties engaged by Defendants as independent contractors. Defendants also acknowledged that they had produced some documents in the possession, custody and control of third parties which they obtained by specific informal requests to the third parties. "Federal courts have consistently held that documents are deemed to be within [a party's] 'possession, custody or control' for purposes of Rule 34 if the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand." In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); see also United States v. Int'l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) ("Control is defined as the legal right to obtain documents on demand."). "The party seeking production of the documents . . . bears the burden of proving that the opposing party has such control." Id. "[P]roof of theoretical control is insufficient; a showing of actual control is required." In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999). Plaintiffs have not established that Defendants have possession, custody or control of third party documents where Defendants are not in physical possession of the documents (which, with the exception of those documents already produced, Defendants state they do not), and where Defendants have no legal right to demand that these third parties provide Defendants with the documents.
Plaintiffs also argue that they are entitled to documents concerning Defendants' "Talking Train" products after October 31, 2008, the sell-by date set forth in the parties' settlement agreement, even though these products do not bear Plaintiffs' "Little Tikes" logo. (MTC Jt. Stip. at 2-5). The Court disagrees, however, because Plaintiffs have failed to show how such documents are relevant to the issues in the current lawsuit. A party may "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things." Fed. R. Civ. P. 26(b)(1). Relevancy is construed broadly to encompass "any matter that bears on, or that reasonably could lead to other matter[s] that could bear on any issue that is or may be in the case." Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (internal quotations omitted). However, when the relevancy of propounded discovery is not apparent, as here, its proponent has the burden to show the relevancy of the discovery request. Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 309 (D. Kan. 1996); see also McCoo v. Denny's, 192 F.R.D. 675, 693 (D. Kan. 2000) (denying motion to compel production of documents where moving party failed to demonstrate how her request for production, which appeared irrelevant on its face, was relevant or would lead to the discovery of admissible evidence). At the hearing, Defendants conceded that documents concerning their "Talking Train" products dated after October 31, 2008 would be relevant if the products still bore Plaintiffs' "Little Tikes" logo, but insisted that no such documents exist that have not already been produced. Plaintiffs have not met their burden of showing how documents relating to "Talking Train" products past the sell-by date are relevant to the claims and defenses in this case if the products do not bear Plaintiffs' logo. Accordingly, the Motion to Compel must be DENIED to the extent it seeks such documents.
B. Sanctions Are Not Warranted
Because the Court has denied Plaintiffs' Motion to Compel, Plaintiffs' request for sanctions is likewise DENIED.
The parties are reminded that pursuant to Local Rule 37-1, when discovery disputes arise, counsel are required to confer in person and in good faith within ten days after the moving party sends a request to meet and confer. Furthermore, the parties are specifically admonished that the failure to strictly comply with the "Protocol for Future Discovery Motions" set forth in the Court's Minute Order ...