Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Polylok Inc v. Bear Onsite, LLC

United States District Court, W.D. Kentucky, Louisville Division

March 22, 2017

Polylok, Inc. and Peter Gavin and Michael N. Delgass, as Trustees of The Peter Gavin Spray Trust, Plaintiffs,
v.
Bear Onsite, LLC, Promold & Tool, LLC, Michael Jay Hornback, and Premier Promold & Tool, Inc., Defendants.

          MEMORANDUM OPINION AND ORDER

          Colin Lindsay, Magistrate Judge.

         Before the Court is a Motion to Compel (“Motion to Compel”) (DN 210) discovery responses and for sanctions filed by Plaintiffs Polylok, Inc. and Peter Gavin and Michael N. Delgass as Trustees of The Peter Gavin Spray Trust (“Plaintiffs”). Defendants Michael Jay Hornback (“Hornback”), Promold & Tool, LLC (“Promold”), and Premier Promold & Tool, Inc. (“Premiere”) (collectively known as “the Hornback Defendants”) filed a response (DN 216), and Plaintiffs have filed a reply (DN 221). Therefore, this matter is ripe for review.

         I. BACKGROUND

         At issue in this dispute are three different categories of documents: (1) the Hornback Defendants9; responses to document requests concerning the Lifetime branded filter (“Lifetime Requests”); (2) certain tax returns of the Hornback Defendants; and (3) redacted communications provided by the Hornback Defendants.

         A. Lifetime Requests

         As an initial matter, the Court will address some deficiencies with respect to the Motion to Compel. On December 23, 2015, Plaintiffs served Hornback with its “Amended First Set of Requests to Defendant Michael J. Hornback” (“Amended First Set of Requests”), which consisted of fifty (50) separate document requests. (DN 210-9.) The document requests concerning the Lifetime branded filter (“Lifetime Requests”) are at issue here. (DN 221, p. 2.) Plaintiffs have not identified which of the fifty requests constitute the Lifetime Requests. It does not appear to be a point of contention between the parties, however. Therefore, the Court will address that category as a whole. Additionally, Plaintiffs state that the Hornback Defendants have provided no responses to the December 23, 2015 requests for production even though the requests for production attached to the Motion to Compel appear to be directed toward Hornback individually. (See DN 210-9 [“Amended First Set of Requests to Defendant Michael J. Hornback”].) While it is possible that the Amended First Set of Requests served on Hornback are duplicative of requests sent to the other Hornback Defendants, that is not clearly stated. Regardless, it appears that both parties agree that all of the requests at issue apply equally to all of the Hornback Defendants; therefore, the Court will do the same.

         On January 21, 2016, the undersigned stayed discovery pending a ruling on Plaintiffs9; motion for leave to file a third amended complaint (DN 170); on March 4, 2016, the undersigned clarified its January 21, 2016 order, stating that the parties shall respond to “existing and outstanding written discovery, ” but that all other discovery was stayed and shall commence seven days after a ruling on the motion for leave to file a third amended complaint. (See DNs 178 [order staying discovery]; 186 [order clarifying DN 178].) Because the Lifetime Requests were served on December 23, 2015, one could construe the March 4, 2016 order as ordering the Hornback Defendants to respond by January 22, 2016 (i.e., within thirty days) because they were “existing and outstanding written discovery.” Plaintiffs have not done so, however. Rather, Plaintiffs state that the undersigned9;s March 4, 2016 order “clarified that the January 21 Order staying discovery did not apply to preexisting written discovery unrelated to the proposed Lifetime claims . . . .” (DN 210-, p. 7.) In other words, Plaintiffs agree that the Lifetime Requests were subject to a discovery stay as they were related to the newly proposed additional claims; the Hornback Defendants do not disagree with this characterization.[1] Consequently, when District Judge David J. Hale granted the motion for leave to file a third amended complaint (see DN 190) on April 22, 2016, according to the undersigned9;s March 4, 2016 order, discovery commenced seven days later on April 29, 2016. Thus, according to Plaintiffs, responses to the Lifetime Requests were due, at the very latest, thirty days later on May 30, 2016.[2] The undersigned will accept this deadline because, regardless of parties9; interpretation of the Court9;s March 4, 2016 order, Plaintiffs appear to be giving the Hornback Defendants the longest deadline conceivable under the March 4, 2016 order.

         On June 24, 2016, the parties participated in a telephonic status conference with the undersigned. (DN 206.) Plaintiffs assert that during this conference, counsel for the Hornback Defendants stated that his clients would not produce documents in response to the Lifetime Requests and as a result, directly induced Plaintiffs to file this motion to compel. (DN 221, p. 4.) The undersigned set a deadline of July 1, 2016 for Plaintiffs to file a motion to compel. (DN 206.) On June 29, 2016, two days before the deadline for Plaintiffs to file a motion to compel, the Hornback Defendants sent Plaintiffs a letter via email stating that they would be mailing Plaintiffs a “disc containing . . . documents . . . regarding the Lifetime Filter.” (DN 210-7, p.2.) The next day, June 30, 2016, Plaintiffs had not received the disc and filed the Motion to Compel. (DN 221, p. 4.) Plaintiffs received the disc containing the production of the Lifetime Filter documents on July 1, 2016. (Id.)

         B. Tax Returns

         Plaintiffs argue that the Hornback Defendants9; responses to the “Amended First Set of Requests” requesting tax returns from 2000 to the present are deficient. (See DN 210-9, p. 6 [“For each year, beginning October 10, 2000, all documents concerning your tax returns.”].) Again, although the attached Amended First Set of Requests were directed to Hornback individually, both parties appear to agree that the requests for tax returns from 2000-present apply equally to all of the Hornback Defendants; therefore, the Court will do the same.

         The Hornback Defendants produced tax returns for 2012-2014 on April 7, 2016 and apparently had already produced tax returns from 2007-2012 via former counsel. (See DN 210-1, p. 8; DN 216, p. 3; DN 221, p. 6.) Therefore, the tax returns at issue date from 2000 to 2006.

         C. Redacted Communications

         Plaintiffs do not specifically identify in the brief supporting the Motion to Compel what redacted communications are at issue. However, in correspondence dated April 27, 2016, Plaintiffs state that the Hornback Defendants have produced redacted communications between Hornback and Theo Terry without a privilege log. (DN 210-5, p. 2.) The Court presumes the redacted communications were produced by the Hornback Defendants in response to the Amended First Set of Requests, but that is not expressly stated as far as the Court can tell. The redacted communications at issue appear to be attached to the Hornback Defendants9; response as Exhibit F (DN 216-6).

         D. Relevant Correspondence between Counsel

         On April 27, 2016, counsel for Plaintiffs wrote a letter to counsel for the Hornback Defendants (DN 210-5). In that letter, counsel for Plaintiffs (1) reminded counsel for the Hornback Defendants about the impending deadline for responses to the Lifetime requests; (2) took issue with the Hornback Defendants9; April 7, 2016 production of individual tax returns for 2012-2014, noting that they had requested tax returns dating back to 2000; and (3) took issue with redactions of portions of communications between Hornback and Terry. (DN 210-5, p. 2.)

         On May 31, 2016, counsel for Plaintiffs wrote another letter to counsel for the Hornback Defendants, noting that the Hornback Defendants had not responded to the Lifetime Requests and warning that in order “[t]o avoid [c]ourt intervention, by close of business tomorrow, please let us know the Hornback Defendants9; position on each of the issues raised in the April 27, 2016 letter, and confirm in writing that the [Hornback Defendants] will comply fully with the [Lifetime Requests] by no later than the end of this week.” (DN 210-6.)

         On the same day, counsel for the Hornback Defendants counsel responded, stating that due to ongoing personal health complications of counsel, counsel would “do my best” to respond “by the end of the next week.” (DN 221-1 [May 31, 2016 email].)

         On June 10, 2016, counsel for the Hornback Defendants sent a letter to counsel for Plaintiffs. (DN 210-12.) In that letter, counsel for the Hornback Defendants stated, among other things, that they would not be producing tax returns before 2007 unless counsel for Plaintiffs could demonstrate why they were needed, and the “redacted portions are either work product or privileged”; the letter did not mention the Lifetime Requests. (Id.)

         On June 15, 2016, counsel for the Hornback Defendants counsel emailed counsel for Plaintiffs, stating, “Because of [co-counsel's] hospital stay and some personal issues, I would appreciate a two week extension on both discovery and the pending response. Among other things, unfortunately[] I have not had opportunity to sufficiently communicate with my client.” (DN 216-1.) On the same day, counsel for Plaintiffs responded, refusing to accommodate any more time extensions, asking for clarification on the “personal issues, ” and requesting that the Hornback Defendants make clear if their intentions were to “object and/or respond with anything less than full compliance . . . ” with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.