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Berster Technologies, LLC v. Coy Christmas

October 3, 2011



On September 29, 2011, the court held a hearing on plaintiff's September 6, 2011 motion for a finding of contempt, for award of sanctions, for order to compel discovery responses and for protective order. Also on calendar was defendants' September 2, 2011 motion for protective order. Rajiv Dharnidharka, Scott Pink and Ashley Joyce appeared for plaintiff. Paul Andre and Harold Storey appeared for defendants. Upon review of the motions and the documents in support and opposition, upon hearing the arguments of counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


This matter was filed on June 7, 2011 and is proceeding on a First Amended Complaint ("FAC") filed June 20, 2011. On July 13, 2011, defendants filed a motion to dismiss the FAC for lack of personal jurisdiction, failure to state a claim and improper venue. In response to defendants' motion for dismissal on grounds of lack of personal jurisdiction and improper venue, plaintiff propounded discovery requests on defendants. Thereafter, on July 26, 2011, plaintiff filed a motion for leave to conduct personal jurisdiction discovery. On August 12, 2011, plaintiff's motion was granted. On August 25, 2011, defendants submitted to the personal jurisdiction and venue of this court. The motion to dismiss for failure to state a claim was argued on September 14, 2011 before the Honorable Kimberly J. Mueller. That matter has been submitted. Doc. No. 65.

Meanwhile, on July 25, 2011 plaintiff filed a motion to compel responses to injunction-related discovery requests. On August 18, 2011, the undersigned granted the motion and directed defendants to supplement their responses on or before August 29, 2011.

On September 2, 2011, defendants filed a motion for protective order, which they scheduled to be heard on October 20, 2011.

On September 6, 2011, plaintiff filed a motion for a finding of contempt of this court's August 18, 2011 order; an award of sanctions; an order compelling defendants to supplement their supplemental responses to the injunction-related discovery requests; and, finally, a motion for protective order. The parties filed a joint discovery statement on September 22, 2011 with accompanying declarations by counsel.*fn2

On September 23, 2011, six days before the scheduled September 29, 2011 hearing on plaintiff's motion, defendants filed an amended motion for protective order with a request to consolidate the October 20, 2011 hearing on their motion for protective order with plaintiff's motion hearing.

On September 14, 2011, plaintiff filed a motion for preliminary injunction and sanctions, which is scheduled to be heard before Judge Mueller on October 12, 2011.


A. Supplemental Responses to Discovery Requests

Central to the current discovery dispute is plaintiff's dissatisfaction with defendants' supplemental responses to plaintiff's injunction-related discovery requests. Specifically, plaintiff asserts defendants (1) improperly preserved their objections to the discovery requests; (2) failed to comply with Federal Rule of Civil Procedure 33(d) with respect to their interrogatory responses; (3) improperly changed the wording of Request for Admission ("RFA") 5; (4) failed to verify their interrogatory responses; and (5) did not submit responses from all defendants. Plaintiff seeks issues sanctions pursuant to Rule 37(b)(2)(A)(I) and (ii).

1. Preservation of Objections

In their supplemental responses, defendants included the same objections that they submitted with their initial responses to the discovery requests and that were the basis of plaintiff's July 25, 2011 motion to compel. Plaintiff argues that defendants' preservation of those objections is contempt- and sanction-worthy because the undersigned overruled those objections in the August 18, 2011 order and because any appeal of that ruling was to be made to Judge Mueller within fourteen days. See Fed. R. Civ. P. 72(a); Local Rule 303; Judge Mueller's Standing Order § 1(A). Plaintiff further argues that, insofar as defendants sought to preserve their objections for appeal to the Ninth Circuit, they are unable to do so now because they did not in fact file a motion for reconsideration with Judge Mueller. See Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) ("[A] party who fails to file timely objections to a magistrate judge's [Rule 72(a) ] nondispositive order with the district judge to whom the case is assigned forfeits its right to appellate review of that order.")

In their defense, defendants assert that their supplemental responses would have been the same with or without the objections.

It is difficult for the court to understand the conundrum. It is true that defendants preserved their objections. Defendants, however, also submitted supplemental responses to the discovery requests. Thus, the court does not find that defendants' preservation ...

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