`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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` 1:13CV181
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`PREFERRED CAROLINAS
`REALTY, INC.,
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`Plaintiff,
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`v.
`AMERICAN HOME REALTY
`NETWORK, INC.,
`d/b/a NEIGHBORCITY.COM
`Defendant.
`
`MEMORANDUM OPINION AND ORDER
`This matter comes before the Court on Defendant’s Motion to
`Compel Written Discovery and 30(b)(6) Deposition. (Docket Entry
`42.) For the reasons that follow, the Court will deny Defendant’s
`instant Motion.
`
`I. BACKGROUND
`Plaintiff filed this action on March 4, 2013, alleging that
`Defendant has infringed Plaintiff’s copyrights by displaying
`Plaintiff’s photographs on Defendant’s website. (Docket Entry 1 at
`1.) The adopted Rule 26(f) Report set the discovery deadline for
`January 1, 2014. (Text Order dated July 3, 2013.)
`Defendant served its requests for production of documents on
`September 25, 2013. (Docket Entry 43 at 3; see also Docket Entry
`48 at 4.) On October 28, 2013, Plaintiff responded, agreeing to
`produce some documents, but objecting to some of the requests.
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`(Docket Entry 43 at 3; see also Docket Entry 48 at 5.)
`Specifically, Plaintiff objected to Defendant’s second and eleventh
`requests for production as overly broad and insufficiently
`particular and objected to Defendant’s seventh, twelfth,
`thirteenth, and fourteenth requests for production as overly broad
`and irrelevant to the claims and/or copyrighted works at issue.
`(Docket Entry 48 at 7-12; see also Docket Entry 43-2 at 13-20
`(Plaintiff’s Responses to Defendant’s Interrogatories and Requests
`for Production of Documents).) On November 25, 2013, Plaintiff
`produced documents it previously had committed to make available.
`(Docket Entry 43 at 3.)
`On December 5, 2013, Defendant notified Plaintiff of its
`intent to take a Rule 30(b)(6) deposition and provided a list of
`topics. (Id. at 3-4.) Plaintiff produced Daniel Washington, its
`Senior Vice President of Sales Support, as a Rule 30(b)(6) witness
`and the Parties conducted the deposition on December 20, 2013.
`(Id. at 4.) At the deposition, according to Defendant, Mr.
`Washington did not satisfactorily answer certain questions which
`Defendant contends properly fit within the topics previously agreed
`upon by the Parties. (See id. at 14-19.)
`Defendant filed the instant Motion to Compel on December 31,
`2013. (Docket Entry 42.) Plaintiff responded in opposition.
`(Docket Entry 48.) Defendant replied. (Docket Entry 59.) Since
`the close of discovery, Plaintiff has moved for summary judgment
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`(Docket Entry 49) and Defendant has moved for partial summary
`judgment as to certain claims (Docket Entry 53).
`Defendant’s instant Motion contends that “Plaintiff has
`responded with meritless objections to numerous standard requests
`for production from [Defendant] and has also refused to produce
`documents pursuant to these requests . . . .” (Docket Entry 43 at
`1.) It further argues that Mr. Washington, Plaintiff’s Rule
`30(b)(6) witness, demonstrated a lack of preparation and ability to
`answer questions sufficient to constitute a failure to appear.
`(Id. at 1, 13.) Defendant thus seeks an order requiring Plaintiff
`to produce documents responsive to the requests to which it
`objected and to afford Defendant the opportunity to depose an
`alternate Rule 30(b)(6) witness. (Id. at 2.)
`In opposition, Plaintiff contends that Defendant did not
`timely file its instant Motion as it relates to Defendant’s
`requests for production and that Defendant did not properly meet
`and confer with Plaintiff with respect to its request for an
`additional Rule 30(b)(6) deposition. (Docket Entry 48 at 1-2.) On
`the merits, Plaintiff asserts that Defendant’s document requests
`did not comply with Federal Rule of Civil Procedure 34. (Id. at
`1.) Plaintiff further argues that Defendant “has not identified
`any properly noticed questions that [Plaintiff’s Rule 30(b)(6)]
`designee could not answer . . . . [and Plaintiff] provided . . .
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`additional information [which] fills any gaps in the designee’s
`original testimony.” (Id. at 16.)
`II. DISCUSSION
`“The purpose of discovery is to provide a mechanism for making
`relevant information available to the litigants.” Fed. R. Civ. P.
`26 advisory committee’s notes, 1983 Amendment. Accordingly, under
`the Federal Rules of Civil Procedure, “[u]nless otherwise limited
`by court order . . . [p]arties may obtain discovery regarding any
`nonprivileged matter that is relevant to any party’s claim or
`defense . . . . ” Fed. R. Civ. P. 26(b)(1) (emphasis added).
`“Relevant information need not be admissible at the trial if the
`discovery appears reasonably calculated to lead to the discovery of
`admissible evidence.” Id.; see also Elkins v. Broome, No.
`1:02CV305, 2004 WL 3249257, at *2 (M.D.N.C. Jan. 12, 2004)
`(unpublished) (“[R]elevancy at discovery is a far different matter
`from relevancy at trial. At discovery, relevancy is more properly
`considered synonymous with ‘germane’ as opposed to competency or
`admissibility.”); Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D.N.C.
`1978) (“It is clear that what is relevant in discovery is different
`from what is relevant at trial, in that the concept at the
`discovery stage is much broader.”).
`However, “[a]ll discovery is subject to the limitations
`imposed by Rule 26(b)(2)(C).” Fed. R. Civ. P. 26(b)(1).
`Specifically, Rule 26(b)(2)(C) limits discovery where:
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`(i) the discovery sought is unreasonably cumulative or
`duplicative, or can be obtained from some other source
`that is more convenient, less burdensome, or less
`expensive;
`(ii) the party seeking discovery has had ample
`opportunity to obtain the information by discovery in
`the action; or
`(iii) the burden or expense of the proposed discovery
`outweighs its likely benefit, considering the needs of
`the case, the amount in controversy, the parties’
`resources, the importance of the issues at stake in the
`action, and the importance of the discovery in resolving
`the issues.
`Fed. R. Civ. P. 26(b)(2)(C); see also Nicholas v. Wyndham Int’l,
`Inc., 373 F.3d 537, 543 (4th Cir. 2004) (“Even assuming that this
`information is relevant (in the broadest sense), the simple fact
`that requested information is discoverable . . . does not mean that
`discovery must be had. On its own initiative or in response to a
`motion for protective order under Rule 26(c), a district court may
`limit [such discovery] . . . if it concludes that [a limitation in
`Rule 26(b)(2)(C) applies].”).
`Notwithstanding the foregoing limitations, the United States
`Court of Appeals for the Fourth Circuit has declared that
`“[d]iscovery under the Federal Rules of Civil Procedure is broad in
`scope and freely permitted.” Carefirst of Md., Inc. v. Carefirst
`Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003).
`Moreover, the commentary to the Rules indicates that “[a] variety
`of types of information not directly pertinent to the incident in
`suit could be relevant to the claims or defenses raised in a given
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`action.” Fed. R. Civ. P. 26 advisory committee’s notes, 2000
`Amendment, Subdivision (b)(1). In applying the foregoing
`principles, district judges and magistrate judges in the Fourth
`Circuit (including members of this Court) have repeatedly ruled
`that the party or person resisting discovery, not the party moving
`to compel discovery, bears the burden of persuasion. See Kinetic
`Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243–44 (M.D.N.C.
`2010) (citing cases).
`A. Defendant’s Requests for Production of Documents
`As an initial matter, Plaintiff asserts that Defendant’s
`instant Motion, as it relates to the production of documents,
`should be denied as untimely. (Docket Entry 48 at 2-6.) Neither
`the Federal Rules of Civil Procedure nor this Court’s Local Rules
`provide a specific timeframe in which a party must file a motion to
`compel. See Fed. R. Civ. P. 37(a); M.D.N.C. R. 37.1. Although
`some district courts in the Fourth Circuit require the filing of a
`motion to compel within strict time limits, see, e.g., D. Md. R.
`104(8)(a), this Court has not adopted such a requirement, as
`Plaintiff admits (see Docket Entry 48 at 4). The Court thus finds
`unpersuasive Plaintiff’s reliance on a case from the District of
`Maryland, which enforces a thirty-day rule, to support its
`assertion of the instant Motion’s untimeliness. (See id. at 3-4
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`(citing Blind Indus. & Servs. of Md. v. Route 40 Paintball Park,
`2012 WL 4470273, No. WMN-11-3562, at *2 (D. Md. Sept. 26, 2012)
`(unpublished)).)
`In this Court, “[g]enerally, a party must file a motion to
`compel before the close of discovery in order for that motion to be
`deemed timely.” Lane v. Lucent Techs., Inc., No. 1:04CV789, 2007
`WL 2079879, at *3 (M.D.N.C. July 17, 2007) (Osteen, Sr., J.)
`(unpublished); see also PCS Phosphate Co., Inc. v. Norfolk So.
`Corp., 238 F.R.D. 555, 558 (E.D.N.C. 2006) (“Generally, absent a
`specific directive in the scheduling order, motions to compel
`discovery filed prior to the discovery deadline have been held
`timely.”). The Court finds no reason to deviate from that
`precedent in this case and thus concludes that Defendant timely
`filed its instant Motion.
`However, with respect to Defendant’s second and eleventh
`requests for production, the Court concludes that Plaintiff
`properly objected to these requests as insufficiently particular.
`A party serving a request for production “must describe with
`reasonable particularity each item or category of items to be
`inspected.” Fed. R. Civ. P. 34(b)(1)(A). To satisfy this
`standard, such requests must “place the respondents on reasonable
`notice of what is called for and what is not.” Parsons v.
`Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C. 1992). “Broad
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`and undirected requests for all documents which relate in any way
`to the complaint are regularly stricken as too ambiguous.” Id.
`Accordingly, Defendant’s eleventh request for production,
`which seeks “[a]ny and all documents that [Plaintiff] contend[s]
`support any of [Plaintiff’s] claims against [Defendant] or are
`relevant to any of [Defendant’s] defenses as set forth in its
`Answer” (Docket Entry 43-1 at 22), fails to meet Rule 34’s
`reasonable particularity standard, see, e.g., Kidwiler v.
`Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D. W. Va.
`2000) (“[A] document request is not reasonably particular if it
`merely requests documents ‘related to a claim or defense’ in the
`litigation.” (quoting Parsons, 141 F.R.D. at 412)).
`On its face, Defendant’s second request, which seeks “any and
`all documents that support, refer to, relate to, or evidence any of
`the facts identified by you in your responses to [Defendant’s]
`Interrogatories served concurrently herewith” (Docket Entry 43-1 at
`20), appears more specific than its eleventh request. However,
`Plaintiff contends that, due to the numerous facts contained in its
`responses and the similarly high volume of documents that might
`relate to any given fact, this request “would encompass many
`documents that have nothing to do with the copyright claims at
`issue.” (Docket Entry 48 at 8.) In support of its contention,
`Plaintiff notes that, for instance, as to the fact “that it
`operates under several assumed names” it might have to “produce all
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`emails containing an assumed name.” (Id.) Plaintiff identified
`ten such assumed names (Docket Entry 43-2 at 10), suggesting that
`requiring Plaintiff to produce all documents which refer or relate
`to one of these ten names would impose an unreasonable burden,
`simply to comply with Defendant’s second request as it relates to
`one of seventeen interrogatories.
`Defendant counters that its “request[] for information that
`supports the answers that [Plaintiff] gave in its interrogatories
`. . . . is not an unreasonable request.” (Docket Entry 43 at 6.)
`In this regard, Defendant mischaracterizes its own request, which
`seeks not only documents that support Plaintiff’s interrogatory
`answers, but also those that refer or relate to facts identified.
`(Docket Entry 43-1 at 20; see also Smith v. Café Asia, 256 F.R.D.
`247, 255 (D.D.C. 2009) (finding not overly burdensome party’s
`request for identification of “all documents on which it relied in
`support of the answer to that interrogatory” where party did not
`seek identification of “all documents which relate to the
`interrogatory”).) Under these circumstances, the Court concludes
`that Defendant’s second request for production does not meet Rule
`34’s reasonable particularity standard.
`Defendant’s remaining requests for production apparently
`concern its copyright misuse defense, under which it has alleged
`that “[Plaintiff] has been engaged in a planned, coordinated, and
`illegal attempt to misuse copyrights on photographs to prevent
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`competition in violation of the Clayton Act and public policy”
`(Docket Entry 43 at 10). Its seventh request seeks “all of
`[Plaintiff’s] End User License Agreements with any MLS entity,
`including but not limited to the End User License by which
`[Plaintiff] allegedly licenses its copyrights in the photographs to
`Carolina MLS.” (Docket Entry 43-1 at 21.) In response, Plaintiff
`agreed to produce such agreements relating to the photographs in
`dispute, but otherwise objected to the request as “overly broad,
`unduly burdensome, and not reasonably calculated to lead to the
`discovery of admissible evidence.” (Docket Entry 43-2 at 16.)
`However, Defendant’s instant Motion contends that it needs all such
`agreements as “important evidence of Plaintiff’s intent to maintain
`a monopoly with various multiple listing services and exclude
`competition.” (Docket Entry 43 at 7.)
`Similarly, Defendant’s twelfth, thirteenth, and fourteenth
`requests seek “any and all documents comprising or relating to
`[Plaintiff’s] communications with [the National Association of
`Realtors, American Home Services of America, Inc., and third
`parties] regarding [Plaintiff’s] copyrights or this lawsuit.”
`(Docket Entry 43-1 at 23.) Again, Plaintiff objected to each of
`these requests as “overly broad, unduly burdensome, and not
`reasonably calculated to lead to the discovery of admissible
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`evidence” (Docket Entry 43-2 at 18-19) and Defendant’s instant
`Motion describes the requests as “highly relevant to [Defendant’s]
`defense of copyright misuse” (Docket Entry 43 at 8).
`Defendant “believes that [Plaintiff] is misusing copyrights in
`concert with others to prevent competition in the real estate
`market.” (Docket Entry 59 at 7.) Further, Defendant cites to the
`Fourth Circuit’s opinion in Lasercomb America, Inc. v. Reynolds,
`911 F.2d 970 (4th Cir. 1990), to support the relevance of its
`document requests in relation to its asserted copyright misuse
`defense. (See Docket Entry 43 at 8; Docket Entry 59 at 7.) In
`that case, the alleged infringer successfully challenged the
`rightholder’s licensing agreement as copyright misuse, because it
`included a 99-year non-compete clause as a condition of licensing
`the copyrighted works. See Lasercomb, 911 F.2d at 978. In
`contrast, Defendant’s instant filings allege a “conspiracy with
`various MLSs and brokers . . . . [to] sue[] [Defendant] in multiple
`federal districts.” (Docket Entry 59 at 5-6.) Similarly, in
`raising the copyright misuse defense in response to Plaintiff’s
`Second Motion for Summary Judgment, Defendant cites only to
`Lasercomb and claims the defense applies because “[Plaintiff’s]
`attempt to enforce its alleged copyrights is being done in concert
`with other brokers and MLSs . . . .” (Docket Entry 63 at 8-9.)
`However, when Defendant recently raised the same argument
`before another court, it concluded that, “[e]ven if . . .
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`[Plaintiff] was collectively enforcing its copyrights with other
`MLSs, that would not, alone, amount to copyright misuse.”
`Metropolitan Reg’l Info. Sys., Inc. v. American Home Realty
`Network, Inc., 888 F. Supp. 2d. 691, 711-12 (D. Md. 2012). Other
`district courts have similarly concluded that such actions to
`enforce copyrights do not constitute misuse and have taken steps to
`prevent burdensome discovery concerning antitrust issues on that
`basis. See UMG Recordings, Inc. v. Lindor, 531 F. Supp. 2d 453,
`459 (E.D.N.Y. 2007) (citing Basic Books, Inc. v. Kinko’s Graphics
`Corp., 758 F. Supp. 1522, 1538-39 (S.D.N.Y.), for proposition that
`“collective action to enforce copyrights did not amount to
`copyright misuse” and granting motion to strike copyright misuse
`defense because “allowing discovery to proceed on defendant’s
`antitrust theory would prejudice plaintiffs”); Microsoft Corp. v.
`Computer Support Servs. of Carolina, Inc., 123 F. Supp. 2d 945,
`955-56 (W.D.N.C. 2000) (finding Lasercomb inapplicable where
`defendants made only “vague allegations” that plaintiff’s efforts
`to enforce its copyrights amounted to misuse and granting motion to
`strike copyright misuse defense); Everco Indus., Inc. v. O.E.M.
`Prods. Co., 362 F. Supp. 204, 206 (N.D. Ill. 1973) (finding that
`defendant’s request in copyright suit for “all contracts and
`communications between [p]laintiff and certain other companies is
`not a properly defined request for production” to support unfair
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`competition defense and sustaining plaintiff’s objections); see
`also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007)
`(“[P]roceeding to antitrust discovery can be expensive.”).
`The Court thus concludes that Plaintiff would face a
`substantial unwarranted burden in responding to Defendant’s
`seventh, twelfth, thirteenth, and fourteenth requests. In that
`regard, the Court further notes that Defendant has not limited
`these requests for production as to a timeframe for which it seeks
`relevant documents, see, e.g., Motton v. Owens, 128 F.R.D. 72, 73
`(M.D. Pa. 1989) (“[Party’s] failure to limit his production request
`to relevant time period made his request overbroad and unduly
`burdensome.”), and that Defendant’s fourteenth request seeks
`communications with any third parties regarding copyrights or the
`instant suit (see Docket Entry 43-1 at 23). Simply put,
`Defendant’s requests do not appear “reasonably calculated to lead
`to the discovery of admissible evidence,” Fed. R. Civ. P. 26(b)(1).
`Alternately, assuming the relevancy of Defendant’s requests, “the
`burden [and] expense of the proposed discovery outweighs its likely
`benefit, considering the needs of the case . . . and the importance
`of the discovery in resolving the issues.” Fed. R. Civ. P.
`26(b)(2)(C)(iii). 1
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` Defendant also asserts that Plaintiff’s objections to its
`1
`discovery requests constitute boilerplate objections and the Court
`should disregard them on that basis. (See Docket Entry 43 at 8-10
`(citing Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364
`(D. Md. 2008) (“[M]erely stating that a discovery request is
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`B. Defendant’s Request for an Additional Rule 30(b)(6) Deposition
`As an initial matter, Plaintiff contends that Defendant did
`not properly meet and confer as to the request for an additional
`deposition of a Rule 30(b)(6) witness, as required by the Federal
`Rules of Civil Procedure and this Court’s Local Rules. (Docket
`Entry 48 at 15.) In that regard, Plaintiff notes that when the
`Parties met and conferred regarding an additional deposition,
`Defendant requested to depose two specific individuals, but now
`Defendant requests, pursuant to Rule 30(b)(6), “only that a
`‘witness’ appear who is knowledgeable about the identified
`matters.” (Id.) This Court’s Local Rules require that “moving
`counsel file[] a certificate that after personal consultation and
`diligent attempts to resolve differences the parties are unable to
`reach an accord.” M.D.N.C. R. 37.1(a). Although Defendant may
`have worded its request differently when the parties met and
`conferred than it has in its instant Motion, the Court does not
`find that Defendant has failed to “make diligent attempts to
`resolve differences.” Id. Furthermore, Defendant’s second request
`appears more modest than its first; initially, Defendant demanded
`two depositions of specific individuals as opposed to its instant
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`‘overbroad’ or ‘unduly burdensome’ will not suffice to state a
`proper objection.”)).) However, the Court does not find that
`Plaintiff has made boilerplate objections as Defendant has alleged.
`Although Plaintiff has repeated certain key terms in several of its
`responses, it has also explained its reasoning in objecting to each
`request. (See Docket Entry 43-2 at 13-20.)
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`request for one deposition of an individual selected by Plaintiff.
`Under these circumstances, the Court concludes that Defendant has
`met its obligation to meet and confer under Local Rule 37.1(a).
`Nonetheless, the Court does not find that Mr. Washington’s
`inability to answer certain questions at his deposition provides
`adequate grounds for Defendant to depose an additional Rule
`30(b)(6) witness. Rule 30(b)(6) “‘requires a good faith effort
`. . . to find out the relevant facts - to collect information,
`review documents, and interview employees with personal
`knowledge.’” Dorsey v. TGT Consulting, LLC, 888 F. Supp. 2d 670,
`685 (D. Md. 2012) (quoting Wilson v. Lakner, 228 F.R.D. 524, 528-29
`(D. Md. 2005)). However, “[a]bsolute perfection is not required of
`a 30(b)(6) witness. The mere fact that a designee could not answer
`every question on a certain topic does not necessarily mean that a
`corporation has failed to comply with its obligation.” QBE Ins.
`Corp. v. Jorda Enters., 277 F.R.D. 676, 691 (S.D. Fla. 2012); see
`also Briese Lichttechnik Vertriebs GmbH v. Langton, 272 F.R.D. 369,
`375 (S.D.N.Y. 2011) (finding that existence of “a number of
`questions to which [Rule 30(b)(6)] witnesses responded that they
`did not know the answer” failed to merit additional deposition
`where witnesses appeared otherwise adequately prepared).
`Defendant contends that Mr. Washington lacked preparation to
`adequately answer questions relating to: (1) the process involved
`in Plaintiff’s determination that certain photographs did not
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`constitute works for hire; (2) the content of two sworn
`declarations of Plaintiff’s President; and (3) the authorship of
`one of twenty photos taken of one of the subject properties.
`(Docket Entry 43 at 14-18.) A review of the deposition transcript
`indicates that, as to the first two matters, Defendant’s lines of
`inquiry stalled not principally because of lack of preparation by
`Mr. Washington, but rather because Plaintiff’s counsel perceived
`them as impinging upon attorney-client confidences. (See Docket
`Entry 43-7 at 86-88, 120-22.) Further, as to the third matter,
`Plaintiff’s counsel subsequently provided Defendant with the
`relevant information, as Defendant admits. (See Docket Entry 43 at
`18-19.) Under these circumstances, Defendant has failed to show
`2
`a lack of good faith effort by Mr. Washington warranting an
`additional Rule 30(b)(6) deposition.
`Defendant cites multiple cases for the proposition that
`“producing an unprepared Rule 30(b)(6) witness is tantamount to
`failure to appear.” (Docket Entry 43 at 13.) However, these cases
`involved extreme obfuscation and unpreparedness not reflected by
`the record in the instant case. See, e.g., Resolution Trust Corp.
`v. Southern Union Co., Inc., 985 F.2d 196, 197 (ruling that
`district court properly granted motion for sanctions where two
`
` Mr. Washington’s errata sheet also clarified that
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`2
`Plaintiff’s counsel made the determination regarding the status of
`certain photographs as works for hire. (See Docket Entry 43-7 at
`87; Docket Entry 48-4 at 2.)
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`witnesses “possessed no knowledge relevant to the subject matters
`identified in the Rule 30(b)(6) notice”); Universal Furniture
`Int’l, Inc. v. Collezione Europa, USA, Inc., 599 F. Supp. 2d 648,
`653-55 (M.D.N.C. 2009) (Osteen, Jr., J.) (holding that party did
`not satisfy Rule 30(b)(6) obligations where it failed to produce
`information directly relevant to calculation of damages and
`specifically referenced in deposition notice and, further, failed
`to produce it upon subsequent court order). Accordingly, the
`3
`Court declines to order an additional Rule 30(b)(6) deposition of
`Plaintiff.
`C. Cost-Shifting
`Because the Court has denied Defendant’s Motion to Compel, it
`“must, after giving an opportunity to be heard, require the movant,
`the attorney filing the motion, or both to pay the party or
`deponent who opposed the motion its reasonable expenses incurred in
`opposing the motion, including attorney’s fees.” Fed. R. Civ. P.
`37(a)(5)(B); see also Biovail Corp. v. Mylan Labs., Inc., 217
`F.R.D. 380, 382 (N.D. W. Va. 2003) (“‘The great operative principle
`of [Rule 37] is that the loser pays.’” (quoting Rickels v. City of
`South Bend, 33 F.3d 785, 786 (7th Cir. 1994))). “But the [C]ourt
`
` Defendant cites for this same proposition a third case,
`3
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`which discussed hypothetical misconduct by a Rule 30(b)(6) witness
`who strategically feigns ignorance at a deposition only to have the
`corporation claim knowledge of the same subject matter at trial.
`(See Docket Entry 43 at 13 (citing United States v. Taylor, 166
`F.R.D. 356, 363 (M.D.N.C. 1996).)
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`must not order this payment if the motion was substantially
`justified or other circumstances make an award of expenses unjust.”
`Fed. R. Civ. P. 37(a)(5)(B).
`Plaintiff’s Response to the instant Motion requested cost-
`shifting (Docket Entry 48 at 19) and Defendant presented no
`argument responsive to that issue in its Reply (see Docket Entry 59
`at 1-9). Under these circumstances, the Court deems Defendant to
`have had its “opportunity to be heard,” Fed. R. Civ. P.
`37(a)(5)(B). For the reasons stated above, the Court further
`concludes that Defendant’s instant Motion lacked substantial
`justification and that nothing renders cost-shifting unjust in this
`case. Accordingly, the Court will order Defendant and/or its
`counsel to pay the reasonable expenses, including attorney’s fees,
`incurred by Plaintiff in opposing the instant Motion.
`III. CONCLUSION
`Defendant has failed to establish grounds for relief under
`Federal Rule of Civil Procedure 37.
`IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
`Written Discovery and 30(b)(6) Deposition (Docket Entry 42) is
`DENIED.
`IT IS FURTHER ORDERED that, on or before April 4, 2014,
`Plaintiff shall serve Defendant with a statement setting out the
`
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`
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`reasonable expenses, including attorney’s fees, Plaintiff incurred
`in opposing the instant Motion. Failure by Plaintiff to comply
`with this order will result in denial of any cost-shifting.
`IT IS FURTHER ORDERED that, if Plaintiff timely serves
`Defendant with a statement of its reasonable expenses, Defendant
`shall file, on or before April 18, 2014, either: 1) a Notice
`indicating its and/or its counsel’s agreement to pay the claimed
`expenses; or 2) a Memorandum of no more than five pages explaining
`why Defendant contests the reasonableness of the claimed expenses,
`along with a certification that Defendant attempted in good faith
`to resolve any disagreement over the reasonableness of the claimed
`expenses. Failure by Defendant to comply with this order will
`result in the Court ordering, upon the filing of a Notice by
`Plaintiff of its reasonable expenses as contained in the statement
`it served upon Defendant, the payment of such expenses by
`Defendant.
`IT IS FURTHER ORDERED that, on or before April 25, 2014,
`Plaintiff shall file a Response of no more than five pages to any
`Memorandum timely filed by Defendant contesting the reasonableness
`of the claimed expenses. Failure by Plaintiff to comply with this
`order will result in denial of any expenses contested by Defendant
`as unreasonable.
`
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`IT IS FURTHER ORDERED that, on or before April 30, 2014,
`Defendant may file a Reply of no more than three pages to any
`Response timely filed by Plaintiff regarding the reasonableness of
`the claimed expenses.
`IT IS FURTHER ORDERED that, upon completion of the foregoing
`briefing or the time for such briefing, the Clerk shall refer this
`matter back to the undersigned Magistrate Judge for further action.
`
`
`
` /s/ L. Patrick Auld
`
`L. Patrick Auld
` United States Magistrate Judge
`
`March 28, 2014
`
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