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Lanard Toys Ltd. v. Dolgencorp LLC

United States District Court, M.D. Florida, Jacksonville Division

August 29, 2017

Lanard Toys Limited, Plaintiff,
v.
Dolgencorp LLC etc., Defendants.

          ORDER

          Patricia D. Barksdale, United States Magistrate Judge

         Before the Court is Lanard Toys Limited's motion to compel better responses to interrogatory 25 and requests for production 58 and 63 to Dolgencorp LLC, and requests for production 51 through 53 to Toys “R” Us-Delaware, Inc. (“TRU”), and for expenses incurred in bringing the motion.[*] Doc. 288. The defendants oppose the motion. Doc. 295. The Court heard argument on the motion. Doc. 308. Applicable law is in the Court's January 21 and February 26, 2016, orders. Docs. 153, 163.

         In interrogatory 25 to Dolgencorp, Lanard asks Dolgencorp to “identify and DESCRIBE all chalk pencils distributed by YOU other than the LANARD CHALK PENCIL and the DOLGENCORP PRODUCT, including, but not limited to: a) the identity of the manufacturer of such pencils; b) the dates YOU distributed such pencils; and c) total amount of sales by YOU of such pencils.” Doc. 288 at 3 (emphasis in original). Dolgencorp contends the interrogatory seeks information that is irrelevant and disproportionate to the needs of the action and would cause undue burden. Doc. 288 at 3.

         During oral argument, Lanard's counsel stated he had no specific knowledge of other chalk pencils distributed by Dolgencorp but surmised there could be others from Dolgencorp's failure to answer “none.” Dolgencorp's counsel explained he had understood the interrogatory to encompass any writing implement that uses chalk and not just any outdoor chalk holder made to look like a No. 2 pencil and represented Dolgencorp has distributed nothing akin to the latter beyond the product at issue.

         On interrogatory 25 to Dolgencorp, the Court denies the motion to compel. Lanard has not shown that any writing implement that uses chalk (beyond a product akin to an outdoor chalk holder made to look like a No. 2 pencil) is relevant, and counsel was unable articulate a narrower interrogatory at oral argument.

         In request for production 58 to Dolgencorp, Lanard seeks “[a]ll internal DOCUMENTS AND COMMUNICATIONS that RELATE TO the termination of Kenneth Marshall's employment with YOU.” Doc. 288 at 7 (emphasis in original). Lanard argues responsive documents and communications may be “evidence of TRU's pattern and practice of infringing conduct” and may provide impeachment material. Doc. 288 at 8. Dolgencorp contends the request seeks documents and communications that are irrelevant. Doc. 288 at 8. Dolgencorp argues, “This is [a] fishing expedition through confidential employee records without any need. Plaintiff's [counsel] took the deposition of Mr. Marshall and had the opportunity to ask him any questions they wished. Plaintiff also took the depositions of Dolgencorp and had the opportunity to ask questions about Mr. Marshall's termination.” Doc. 295 at 9.

         During oral argument, Lanard's counsel explained Marshall had been heavily involved in the relationship between Dolgencorp and Lanard and had implied during his deposition that something about his termination was amiss.

         On request for production 58 to Dolgencorp, the Court denies the motion to compel. Lanard has not shown that any documents and communications concerning Marshall's termination are relevant. This action was initiated in March 2014, and Dolgencorp terminated Marshall more than two-and-a-half years later in November 2016. See Doc. 1; Doc. 294 at 11. Marshall testified during his deposition that he had been fired for performance reasons a month after initiation of a performance improvement plan, he could not recall the particular criticisms of his performance, and he had not been given an exit interview. Doc. 294 at 11-13. Neither the timing of the termination nor the content of the testimony suggests the termination had anything to do with this action or the relationship between Dolgencorp and Lanard. Despite substantial discovery, Lanard presents nothing more to show relevancy.

         In request for production 63 to Dolgencorp, Lanard seeks “ALL DOCUMENTS AND COMMUNICATIONS that RELATE TO Eric Hedberg's direction to Kenneth Marshall to bring him new items, as testified by Mr. Marshall during his April 20, 2017 deposition[.]” Doc. 288 at 10 (emphasis in original). Lanard contends it “is entitled to discover whether the direction to bring new items impacted Defendants' decision to cease carrying Plaintiffs' products at issue[.]” Doc. 288 at 10. Dolgencorp contends the request is vague and indefinite. Doc. 288 at 10.

         At oral argument, Lanard's counsel pointed to Marshall's deposition testimony about a June 2013 email that mentioned dropping Lanard products for “fresh” or “new” items and suggested that the testimony could be construed as an instruction to replace Lanard's products with infringing products. See Doc. 294 at 14-15. Dolgencorp's counsel observed that the email was to a Lanard representative-not to Marshall.

         On request for production 63 to Dolgencorp, the Court grants the motion in part. By September 30, 2017, Dolgencorp must produce any 2013 communications not privileged, not protected, and not already produced between Hedberg and Marshall about replacing Lanard's products. Tailoring in that manner addresses Dolgencorp's concern about vagueness and indefiniteness.

         In request for production 51 to TRU, Lanard seeks “ALL internal DOCUMENTS AND COMMUNICATIONS that RELATE TO the prior lawsuit between YOU and LANARD styled Lanard Toys Limited v. Toys “R” Us, Inc. et al. Case No. 14-4-56-JLL-JAD, filed in the United States District Court for the District of New Jersey.” Doc. 288 at 4 (emphasis in original). Lanard contends responsive documents and communications may show willfulness through a pattern and practice of infringement and TRU should have produced a privilege log. Doc. 288 at 5, 6.

         TRU contends the request seeks documents and communications that are irrelevant, disproportionate to the needs of the action, and privileged, and Lanard seeks them just to harass and annoy TRU. Doc. 288 at 4-5. TRU argues the New Jersey action involved a dissimilar product and dissimilar issues; the New Jersey action was resolved as a business decision unrelated to the merits; the documents and communications amount to inadmissible character evidence; Lanard's theory risks litigation of the merits of an unrelated action; the New Jersey action was filed after this action; and Lanard already possesses documents (the complaint and settlement agreement) from the New Jersey action. Doc. 295 at 4-7.

         At oral argument, Lanard's counsel explained the New Jersey action had been an infringement action concerning a foam-dart gun. He clarified Lanard seeks internal documents and communications about TRU's involvement with a potentially infringing product to show a pattern or practice and TRU's procedure for handling infringement claims but does not seek any in which a lawyer had been involved. TRU's counsel responded the New Jersey action does not establish a relevant practice because it involved no pre-suit demand and one incident does not ...


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