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Inline Packaging, LLC v. Graphic Packaging International, Inc.

United States District Court, D. Minnesota

January 5, 2017

Inline Packaging, LLC, Plaintiff,
v.
Graphic Packaging International, Inc., Defendant.

          Robert R. Weinstine, Esq., Justice Ericson Lindell, Esq., and Brent Lorentz, Esq., Winthrop & Weinstine, PA, Minneapolis, MN, on behalf of Plaintiff.

          Felicia Boyd, Esq., Barnes & Thornburg LLP, Minneapolis, MN; David Hamilton, Esq., Womble Carlyle Sandridge & Rice, LLP, Baltimore, MD; Jason Hicks, Esq., and Amanda Norris Ames, Esq., Womble Carlyle Sandridge & Rice, LLP, Washington, D.C., on behalf of Defendant.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on Defendant Graphic Packaging International, Inc.'s (“Graphic”) Objection [Docket No. 116] to Magistrate Judge Leo I. Brisbois' November 2, 2016 Order (“Order”) [Docket No. 113] granting in part Inline Packaging LLC's (“Inline”) Third Motion to Compel Discovery and Request for Order to Show Cause [Docket No. 99] (“Third Motion to Compel”). Graphic argues it should not have been ordered to partially reimburse Inline for the fees and expenses Inline incurred in bringing the Third Motion to Compel. For the reasons set forth below, the Objection is overruled.

         II. BACKGROUND

         Graphic objects to a fee award that resulted from Inline's Third Motion to Compel. In that Motion, Inline asked Judge Brisbois to order Graphic to identify susceptor sales and paperboard sales from 2002 to 2007. Judge Brisbois had earlier ordered Graphic to produce that information by August 15, 2016. See Order, July 25, 2016 [Docket No. 77]. By September 20, 2016, Graphic had not provided the information and had stated to Inline that “Graphic does not keep a list of susceptor verses non-susceptor products. Graphic is not required to analyze 14 years of data and perform a forensic analysis of each product sold to determine whether it included susceptor technology or not.” Second Lorenz Decl. [Docket No. 103] Ex. M at 79.[1]Inline filed the Third Motion to Compel on September 21, 2016, the day after receiving this response from Graphic.

         On October 5, 2016, Judge Brisbois held a hearing on the Third Motion to Compel. At the hearing, Inline initially stated that it no longer believed Graphic's discovery responses were deficient, because Graphic had informed Inline that information identifying sales of susceptor versus non-susceptor products from 2002 to 2007 did not exist. Hr'g Tr. [Docket No. 115] at 3:4-15. As the hearing progressed, however, Inline retreated from that position because Graphic never stated at the hearing that it was incapable of telling which sales were susceptor and which were not, only that it did not maintain a list identifying such sales. Id. at 19:15-20:2.

         During Graphic's oral argument, Judge Brisbois asked Graphic's counsel to clarify whether the requested information was nonexistent or, alternatively, whether the information had existed but had not been assembled:

COURT: Well, there's a difference between it does not exist or it will take us time to pull it together. I mean, so which is it? What is your position? I mean, there are sentences in your briefing that lay out, We told them it doesn't exist; and then at another point you say, Well, it would take too much to pull it together. Which is it?

Id. at 12:18-24. Rather than definitively stating whether or not the information existed, Graphic's counsel responded:

GRAPHIC: Graphic does not keep a list of susceptor products versus non-susceptor products. It has just a list of the paperboard products that it sells. You can look at that list and if the word “susceptor” is contained in the product name, then you can know that that was a susceptor product. It if [sic] the word “SUC” is contained in there, you can probably figure out that that's a susceptor product.

Id. at 13:8-14. Graphic's counsel also stated that Graphic employees lacked personal knowledge of which products sold in 2002 were susceptor products and which were not. Id. at 14:6-15.

         Later, Inline's counsel stated, “What I heard [Graphic's counsel say] today was we don't have a list. That's a different issue. I didn't ask for a list. It's an interrogatory. I asked for information. . . . ...


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