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Port-A-Pour, Inc. v. Peak Innovations, Inc.

United States District Court, D. Colorado

April 17, 2014

PORT-A-POUR, INC., a Colorado corporation, Plaintiff,
v.
PEAK INNOVATIONS, INC., a Colorado corporation and MARK E. NELSON, an individual, Defendants and Counter Claim Plaintiffs, And PORT-A-POUR, INC., a Colorado corporation, JEROME J. DOHERTY, and NEIL G. OBERG, individuals, Counter Claim Defendants.

ORDER

BOYD N. BOLAND, Magistrate Judge.

This matter arises on the following:

(1) Jerome J. Doherty's Second Motion to Compel and for Sanctions [Doc. # 74, filed 3/11/2014] (the "Second Motion to Compel");

(2) Defendants' Motion for Blanket Protective Order [Doc. # 77, filed 3/14/2014] (the "Motion for Protective Order"); and

(3) Motion to Quash Deposition of Drew Nelson [Doc. # 80, filed 3/17/2014] (the "Motion to Quash").

I held a hearing on the motions on April 16, 2014, and made rulings on the record, which are incorporated here.

I previously granted an initial motion to compel and ordered the defendants "to provide complete responses to the interrogatories and produce all responsive documents, in compliance with the formalities of the Federal Rules of Civil Procedure...." Order [Doc. # 68]. In doing so, I expressly overruled the defendants' objection that the interrogatories were overbroad "blockbusters."[1]

The defendants provided supplemental discovery responses on February 28, 2014. Rather than comply with my order, the defendants renewed the overruled objections and asserted additional objections not previously made. In an attempt to excuse their improper conduct, the defendants argue in opposition to the Second Motion to Compel:

The Court ordered responses filed "in compliance with the formalities" of the rules. Those include the right to object. The Court's Order [ECF # 68] does not specify that responses be provided without objections.... Defendants included objections within "the formalities of the Federal Rules."

Response [Doc. # 86] at pp. 2-3.

The argument is strained, at best, and borders on being disingenuous. Continuing to assert objections previously overruled certainly is improper, and defense counsel knows it. In addition, Fed.R.Civ.P. 33(b) requires that discovery responses be provided within 30 days after service and that any objection not timely made is waived. My order, fairly read and in the light of Rule 33(b), precludes the assertion of new objections in the supplemental answers.

Although the defendants improperly asserted numerous objections to the interrogatories, the supplemental answers are comprehensive. On inquiry at the hearing, defense counsel responded that no information was withheld based on any asserted objection. Defense counsel also admitted, however, that he had not told Mr. Doherty's counsel that the answers were complete, the objections notwithstanding, despite direct inquiry by Mr. Doherty's counsel.

There are other problems with the supplemental responses. First, the defendants responded to requests to identify documents supporting interrogatory answers by referring Mr. Doherty to "the documents already in disclosure, as well as those which will be provided by supplementation as discovery in this case progresses." Response to Interrogatory # 8 [Doc. # 86-1] at p. 11 of 37.[2] Rule 33(d), Fed. R. Civ. P., allows a party to answer an interrogatory by referring to business records, but the responding party must "specify the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could" or to give the interrogating party "a reasonable opportunity to examine and audit the records and to make copies...." The defendants' response fails either to identify adequately the documents to be examined or to segregate and produce, on an interrogatory-by-interrogatory basis, the responsive document and produce them for inspection.

In addition, the defendants have withheld from disclosure the most important documents pending the resolution of a dispute over the form of a blanket protective order which the defendants contend is necessary to protect confidential and trade secret information. Here, the parties are direct competitors. The defendant argues that some of the responsive documents are so confidential that they should be available for inspection only by ...


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