UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WISCONSIN
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`DESIGN BASICS, LLC,,
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` Plaintiff/Counterclaim Defendant,
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`v. Case No. 13-C-0560
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`
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`CAMPBELLSPORT BUILDING SUPPLY INC.,
`BERLIN BUILDING SUPPLY INC.,
`KIEL BUILDING SUPPLY INC.,
`DREXEL INC.,
`DREXEL BUILDING SUPPLY INC.
`JOEL M. FLEISCHMAN
`also known as JOEL C. FLEISCHMAN,
`and ALBERT J. FLEISCHMAN,
`
` Defendants,
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`
`
`and
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`WILSON MUTUAL INSURANCE COMPANY,
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`
`
`
`
` Intervenor Defendant/Counterclaimant.
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`DECISION AND ORDER
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`
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`This action alleging that the Defendants committed copyright violations of
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`Plaintiff Design Basics, LLC (―Design Basics‖) copyrighted architectural works is
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`before the Court on the motion of Design Basics to strike the Defendants’ objections to
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`discovery and to compel discovery. (ECF No. 27.) The motion, filed as a single
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`document with the supporting brief, does not cite any federal rule of civil procedure
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`relative to the relief that is sought, which is contrary to Civil Local Rule 7(a) (E.D.
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`Wis.).
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`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 1 of 7 Document 36
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`EASTERN DISTRICT OF WISCONSIN
`
`
`
`
`
`
`
`
`
`DESIGN BASICS, LLC,,
`
` Plaintiff/Counterclaim Defendant,
`
`v. Case No. 13-C-0560
`
`
`
`
`
`
`CAMPBELLSPORT BUILDING SUPPLY INC.,
`BERLIN BUILDING SUPPLY INC.,
`KIEL BUILDING SUPPLY INC.,
`DREXEL INC.,
`DREXEL BUILDING SUPPLY INC.
`JOEL M. FLEISCHMAN
`also known as JOEL C. FLEISCHMAN,
`and ALBERT J. FLEISCHMAN,
`
` Defendants,
`
`
`
`and
`
`WILSON MUTUAL INSURANCE COMPANY,
`
`
`
`
`
` Intervenor Defendant/Counterclaimant.
`
`DECISION AND ORDER
`
`
`
`
`
`
`
`This action alleging that the Defendants committed copyright violations of
`
`Plaintiff Design Basics, LLC (―Design Basics‖) copyrighted architectural works is
`
`before the Court on the motion of Design Basics to strike the Defendants’ objections to
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`discovery and to compel discovery. (ECF No. 27.) The motion, filed as a single
`
`document with the supporting brief, does not cite any federal rule of civil procedure
`
`relative to the relief that is sought, which is contrary to Civil Local Rule 7(a) (E.D.
`
`Wis.).
`
`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 1 of 7 Document 36
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`
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`Regardless of the omission, at a minimum, the motion invokes Federal Rule of
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`
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`Civil Procedure 37(a)(1) and Civ. L.R. 37. Both rules require any motion be
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`accompanied by a statement certifying that Design Basics met and conferred with the
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`Defendants in a ―good faith‖ effort to resolve the discovery dispute. The meet and
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`confer requirements were piloted in local rules (see Rule 37, Advisory Comm. Note
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`1993 Amend.), and were added to Rule 37(a) because they were successful. Although
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`not explicitly stated by the Advisory Committee Note, inferentially the success is the
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`informal resolution of discovery disputes and a reduction of the filing of unnecessary
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`discovery motions.
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`Not all pre-filing meet and confer statements are sufficient. In considering
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`whether pre-filing ―meet and confer‖ requirements have been satisfied, courts in this
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`district have considered the tone and content of communications. See Carlson v. City
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`of Delafield, No. 08-C-751, 2010 WL 1641915, at *2 (E.D. Wis. Apr. 21, 2010).
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`The motion contains the following certification:
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`that on
`Plaintiffs’ Counsel, Dana LeJune, certifies
`December 9, 2013, he sent a letter to defense counsel
`detailing why Defendants’ responses to discovery and
`disclosures were deficient (Exhibit 1). Thereinafter on
`December 11, 2013, Attorney Michael Hopkins had a
`telephone conference with Attorney Buttchen to discuss
`Mr. LeJune’s letter and Defendants’ discovery responses.
`Mr. Hopkins confirmed the substance of this discussion
`with Attorney Buttchen via an email, which was
`responded to, in part, by Attorney Buttchen (See email
`string, Exhibit 2).
`In
`this email correspondence
`Defendants agreed to produce all available emails (in
`native format) and allow mirroring of the hard drives of
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`- 2 -
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`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 2 of 7 Document 36
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`
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`computers used by defendants’ in-house draftsmen. A
`dispute exists as to whether Defendants have agreed to
`produce digital copies of the house plans located in
`Defendants’ cloud storage service.
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`Soon after Defendants were told that this motion was
`being drafted, on December 13, 2013, they supplemented
`their initial discovery responses. In summary, although
`some additional materials have been provided, Defendants
`still have not answered all the interrogatories, and still
`have not produced any emails (archived or otherwise), and
`still resist production of their collection of house plans
`numbering in the thousands. Additionally, they continue
`to resist the mirroring of the hard drives on their
`computers, servers and storage devices.
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`* * * *
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`CERTIFICATE OF CONFERENCE
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`I hereby certify that on December 13, 2013 at 4:22 pm,
`counsel for Plaintiff conferred with opposing counsel on
`this matter, and that multiple email and telephone
`communications have been engaged in this endeavor.
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`s/Dana A. LeJune
`Dana A. LeJune
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`
`
`
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`(Pl.’s Mot. & Br. Strike & Compel, 1-2, 17.)
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`Neither the tone nor the content of the foregoing statement and/or the
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`supporting exhibits disclose that Design Basics met and conferred with the
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`Defendants in a ―good faith‖ effort to resolve the discovery dispute. Design Basics’
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`statement discloses that, despite the Defendants’ responsiveness, Design Basics was
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`didactic and unwilling to work with them to resolve the discovery disputes, instead
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`filing its motion to compel all outstanding answers and/or materials requested by its
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`interrogatories and requests for production. Design Basics’ contact with the
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`- 3 -
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`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 3 of 7 Document 36
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` Defendants does not reflect good faith on its part. The Court would have a sound
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`basis to deny the motion outright.
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`The filings before the Court establish that the Defendants’ responses were not
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`complete as of December 9, 2013. However, they began to supplement their
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`responses. The Defendants provided Design Basics with their first supplemental
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`response on December 13, 2013.
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`Instead of engaging in good faith negotiations to obtain the additional
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`outstanding materials from the Defendants, Design Basics filed its motion to strike
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`and compel on December 17, 2013. The Defendants subsequently provided Design
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`Basics with additional supplemental responses dated December 19, 2013. (Pl’s
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`Reply, Ex. E), January 7, 2014 (Id., Exs. F & G), January 17, 2014, (Id. Ex. H). (ECF
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`Nos. 29-5, 30, 30-1, 30-2.) Additional information is also included in letter dated
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`January 31, 2014, from the Defendants to Design Basics. (ECF Nos. 31, 31-1.)
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`The parties’ filings have consumed about a ream of paper – 500 sheets.
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`Having combed through the parties’ filings, there is a clear dispute regarding the
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`scope of the plans to be disclosed by the Defendants. That request is contained in
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`Request No. 1 of the Plaintiff’s First Request for Production of Documents which
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`reads as follows:
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`REQUEST 1. Your house plan ―inventory‖ including but
`not limited to all genesis and template documents, in
`native format (such as CAD files, including but not
`limited to *.dwg, *.spd, *.dxf, *.cdc, *.plt, *.dgn, and/or
`*.dwf."). This request includes all house plans (and all
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`- 4 -
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`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 4 of 7 Document 36
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`
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`drafts, sketches, mockups, genesis and other precursor
`documents, including everything shown to each and every
`person who did plan modification and/or drafting for you
`and/ or any other Defendant) you have drawn or have had
`drawn, including those you and/or any other defendant
`helped to draw.
`
`
`
`
`
`(Ex. F.) (ECF No. 30.)
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`
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`The Defendants’ second supplemental response is as follows:
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`RESPONSE N0.1: Objection. This document request is
`overly broad, unduly burdensome, and seeks information
`that is not reasonably calculated to lead to the discovery of
`admissible evidence. Subject to such objection, and
`without waiving the same, see Exhibit A, which has
`already been provided, and Exhibit I. All plans relevant to
`this suit have been provided to Plaintiff.
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`(Id.)
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`
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`According to Rule 26 of the Federal Rules of Civil Procedure,
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`[p]arties may obtain discovery regarding any
`nonprivileged matter that is relevant to any party’s claim
`or defense—including the existence, description, nature,
`custody, condition, and location of any documents or
`other tangible things and the identity and location of
`persons who know of any discoverable matter. For good
`cause, the court may order discovery of any matter
`relevant to the subject matter involved in the action.
`Relevant information need not be admissible at the trial if
`the discovery appears reasonably calculated to lead to the
`discovery of admissible evidence.
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`Fed. R. Civ. P. 26(b)(1).
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`Design Basics’ Complaint alleges
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`that
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`the Defendants, singularly or
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`collectively, have
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`infringed
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`its copyright-protected plans entitled ―Morgan,‖
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`―Ambrose,‖ and/or ―Manning‖ on one or more occasions by, inter alia, creating one or
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`- 5 -
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`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 5 of 7 Document 36
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` more derivative works from said plans for one or more of their customers. (Compl. ¶
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`16.) It further alleges that the Defendants ―have regularly and systematically infringed
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`[Design Basics’] copyrights and those of other designers and architects in original
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`architectural works, and have induced others, including individual homeowners,
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`contractors and other entities and individuals engaged in the business of home building
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`to infringe [Design Basics’] copyrights in its original architectural works, to the profit
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`of said Defendants, contractors and other home builders, and to [Design Basics’]
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`detriment,‖ and ―[u]pon information and belief, the Defendants have infringed the
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`copyrights in other original architectural works of [Design Basics], the scope and
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`breadth of which infringing activities will be ascertained during the course of
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`discovery.‖ (Id. at ¶¶ 18, 20.)
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`
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`In their opposing brief, the Defendants cite DellaCasa, LLC v. John Moriarty
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`& Associates of Florida, Inc., No. 07-21659-CIV, 2007 WL 4117261, at *2 (S.D. Fla.
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`Nov. 16, 2007), a decision in an architectural copyright infringement action denying
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`the plaintiff’s motion to compel the defendant to produce all drawings and designs in
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`its possession including those for Harbour House and Carillon projects. In denying the
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`motion, the court relied on the fact that the plaintiff’s causes of action involved three
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`Trump Tower projects and did not relate to either the Harbour House or Carillon
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`projects. Id. Furthermore, the court determined that the plaintiff had not established
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`good cause to allow discovery under the broader subject matter standard. Id.
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`DellaCasa is distinguishable because the copyright infringement allegations of
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`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 6 of 7 Document 36
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`the Complaint in this action are not limited to a specific plan or plans. Design Basics
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`alleges that the Defendants have regularly and systemically infringed on its
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`copyrighted plans and those of others. Given the breadth of the allegations in this
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`action, the Defendants’ contention that the request is not likely to lead to the discovery
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`of admissible evidence lacks merit. Furthermore, the Defendants’ conclusory and
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`unsubstantiated claims that the request is overly broad and burdensome are insufficient
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`to provide a basis for denying the request for relevant materials.
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`
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`Therefore, request number one of Design Basics’ request for production of
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`documents is granted. In all other respects, the motion to compel is denied.
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`Additionally, at this juncture, the Defendants’ request for fees and costs is denied. See
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`Fed. R. Civ. P. 37(a)(5)(C).
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`NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
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`ORDERED THAT:
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`Design Basics’ motion to strike the Defendants’ objections to discovery and to
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`compel discovery (ECF No. 27) is GRANTED as to Request No. 1 of its first request
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`for production of documents and DENIED in all other respects.
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`Dated at Milwaukee, Wisconsin, this 19th day of February, 2014.
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`BY THE COURT:
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`__________________________
`HON. RUDOLPH T. RANDA
`U.S. District Judge
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`Case 2:13-cv-00560-RTR Filed 02/20/14 Page 7 of 7 Document 36
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