United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
B. Atkins United States Magistrate Judge
matter comes before the Court upon Plaintiff Herdguard,
LLC's Motion to Compel Defendant NXT Generation, Pet,
Inc. (“NXT”) to respond to its Request for
Production of Documents filed on March 8, 2018. [R. 34; R.
58-3]. The Court held a telephone conference call on
September 8, 2018 during which Plaintiff indicated this
present discovery dispute. [R. 57]. Thereafter, the
undersigned directed the parties to file briefings for the
Court's review. This matter is ready for ruling,
following Plaintiff's Reply, [R. 61], to Defendant's
Response and Objection to Plaintiff's Motion to Compel,
discovery disputes have been referred to the undersigned for
decision pursuant to 28 U.S.C. § 636(b)(1)(A). [R. 28].
Accordingly, having considered the matter fully, and being
otherwise sufficiently advised, IT IS
ORDERED that Plaintiff's Motion to Compel [R.
58] be DENIED.
& PROCEDURAL BACKGROUND
action arises from Plaintiff's claims of breach of
contract, civil conspiracy, unjust enrichment, and tortious
interference with business relationships against NXT and
Vermont Soap Corp. (“Vermont Soap”). [R. 1-1 at
3]. Plaintiff alleges that NXT and Vermont Soap violated
their non-disclosure agreements with Plaintiff, by going into
business with one another, thereby revealing confidential and
proprietary information about Plaintiff's products. [R.
1-1 at 7 ¶ ¶ 45, 51; Id. at 8 ¶ 61;
Id. at 9 ¶ ¶ 65, 69; Id. at 10
discovery at issue in this motion concerns Plaintiff's
First Set of Request for Production of Documents which were
served to NXT on March 8, 2018 [R. 34; R. 58-3 at 6 ¶
19]. In reply, NXT raised certain objections contained within
the discovery requests on the basis that they were
“oppressive, unreasonable, and exceed[ed] the scope of
discovery permitted by the Federal Rules of Civil
Procedure.” [R. 59-5 at 1 ¶ ¶ 1-2].
Nonetheless, while NXT responded to each discovery request,
NXT expressly reserved the right to supplement the responses.
28, 2018, in order to allow for the scheduling of
depositions, the parties filed a Joint Motion to Extend the
Fact Discovery Deadline from June 29, 2018 to July 31, 2018.
[R. 42]. This motion was granted. [R. 51]. On July 26, 2018
NXT provided Supplemental Responses to Plaintiff's
discovery request, which were designated as confidential and
subject to agreed-upon terms of a protective order. [R. 52;
R. 55; R. 59 at 6]. The parties' Motion for Protective
Order, filed on August 10, 2018, was for the purpose of
“expedit[ing] the flow of discovery, facilitat[ing] the
prompt resolution of disputes over confidentiality,
adequately protect[ing] material entitled to be kept
confidential, and to insure [sic] that protection is afforded
only to materials so entitled.” [R. 55].
September 18, 2018, during a telephonic conference, the
undersigned became aware of the present discovery dispute
between the parties. [R. 57]. The next day, Plaintiff filed
this underlying Motion to Compel, alleging that NXT failed to
comply with Request #19 in its Request for Production of
Documents, which had been served to them on March 8, 2018.
[R. 58]. On September 24, 2018, NXT filed a Response and
Objection to Plaintiff's Motion. [R. 59]. In sum,
Defendant argues that: (1) Plaintiff's Request seeks
irrelevant information, which is not proportional to the
needs of this case, and (2) Plaintiff's Motion should be
denied on the basis that it was filed nearly two months after
the extended fact discovery deadline, and thus, is untimely.
[Id. at 7-10]. In response, on September 28, 2018,
Plaintiff filed a Reply in Support of this Motion to Compel.
[R. 61]. Plaintiff's main argument is that Request #19 is
relevant because it will establish a measure of damages to
which Plaintiff is entitled to pursuant to the alleged breach
of the parties' 2015 Non-Disclosure Agreement. [R. 58; R.
Civ. P. 26(b)(1) provides that-unless otherwise
limited-“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” This language is broadly construed to include
“any matter that bears on, or that reasonably could
lead to other matters that could bear on, any issue that is
or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). The scope of
discovery, however, is not without limitation. It is
“well established that the scope of discovery is within
the sound discretion of the trial court.” Chrysler
Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.
1981) (citing H. K. Porter Co., Inc. v. Goodyear Tire and
Rubber Co., 536 F.2d 1115 (6th Cir. 1976)). As such,
“[a] ruling by the trial court limiting or denying
discovery will not be cause for reversal unless an abuse of
discretion is shown.” Id. (citing Fed.R.Civ.P.
26(b); H. L. Moore Drug Exch., Inc. v. Smith, Kline and
French Lab., 384 F.2d 97 (2d Cir. 1967)).
party refuses to provide information requested by any other
party, which is thought by the requesting party to be within
the scope of Fed.R.Civ.P. 26(b)(1), the requesting party may
move the court in which the action is pending to compel
disclosure of the requested information. Fed.R.Civ.P.
37(a)(3)(B). Such a motion to compel generally may be filed
where a party has failed to provide mandatory disclosure;
failed to answer or admit an interrogatory or request for
admission; or failed to produce discoverable information,
materials, or documents- electronic or otherwise. See
generally Fed. R. Civ. P. 37. A failure to disclose,
answer or admit, or produce includes disclosures, answers or
admissions, or productions that are “evasive or
incomplete.” Fed.R.Civ.P. 37(a)(4). Prior to so moving,
however, a party seeking to compel disclosure or discovery
must in good faith confer or attempt to confer with the
opposing party “failing to make disclosure or discovery
in an effort to obtain it without court action.”
the court determine the matters sought to be compelled fall
within the scope of Fed.R.Civ.P. 26, the motion shall be
granted. Nonetheless, district courts may deny as untimely
motions to compel filed after the discovery deadline has
passed. Pittman v. Experian Info. Solutions, Inc.,
901 F.3d 619, 642-43 (6th Cir. 2018); see also Craig-Wood
v. Time Warner N.Y. Cable LLC, 549 Fed.Appx. 505, 508
(6th Cir. 2014). In fact, motions to compel filed after the
discovery deadline will generally be deemed untimely.
See, e.g., Appalachian Reg'l Healthcare v. U.S.
Nursing Corp., 2017 WL 9690401, at *3-6 (E.D. Ky. 2017);
Thomas v. Louisville/Jefferson Cty. Metro Gov't,
2016 WL 4385857, at *1 (W.D. Ky. 2016); Mitchell v.
Mike, 2015 WL 8770073, at *2-3 (E.D. Ky. 2015).