United States District Court, D. Minnesota
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
MONTGOMERY U.S. DISTRICT JUDGE
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.
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.Inline filed the Third Motion
to Compel on September 21, 2016, the day after receiving this
response from Graphic.
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.
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
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
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.
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. . .