United States District Court, D. Nevada
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff Tahoe eCommerce, LLC, a Nevada limited liability company's ("Tahoe eCommerce") Motion to Compel Defendant Hussain Rana, an individual dba MEATPROCESSINGTOOLS.COM ("Rana"), to Supplement Responses to Discovery Pursuant to FRP 26(e). (Doc. # 52.) Rana filed a response (Doc. # 56) and Tahoe eCommerce filed a reply (Doc. # 61).
This Complaint was filed on October 7, 2011 by Tahoe eCommerce against Rana asserting claims for unfair competition under the Lanham Act, 15 U.S.C. § 1051, et. seq., breach of contract and breach of the implied covenant of good faith and fair dealing related to Rana's operation of a business and website, www.meatprocessingtools.com, which Tahoe eCommerce alleges infringes its trademark, www.meatprocessingproducts.com. (Doc. # 1.) Rana was ultimately served by publication on February 28, 2012 (Doc. # 9), and the Clerk entered default against Rana, but the default was ultimately set aside by the court. (Docs. # 14, # 18.) Rana answered the complaint on October 3, 2012. (Doc. # 21.)
A discovery plan and scheduling order was entered on November 9, 2012, setting April 3, 2013 as the discovery cutoff date. (Doc. # 26.) On March 5, 2013, Tahoe eCommerce's attorney, Matthew Francis, moved to withdraw as counsel and that motion was granted the following day. (Docs. # 29, # 30.) Tahoe eCommerce's current attorney, Clifton J. Young, filed a notice of appearance on April 3, 2013. (Doc. # 31.) Tahoe eCommerce filed its motion for summary judgment on April 29, 2013. (Doc. # 32.) Rana's counsel was subsequently granted permission to withdraw, and Rana is now proceeding pro se. After several extensions were granted, briefing was completed, and then the motion was denied. (Doc. # 46.)
A status conference was held on March 10, 2014, and in light of the passing of the discovery deadline and denial of Tahoe eCommerce's motion for summary judgment the court ordered the parties to file their joint pretrial order and set trial for October 20, 2014. (Doc. # 48.) The joint pretrial order was filed on May 27, 2014. (Doc. # 50.) Trial remains set for October 20, 2014. ( Id. )
On June 6, 2014, Tahoe eCommerce filed the instant motion to compel. (Doc. # 52.) In this motion, Tahoe eCommerce asserts that it served discovery, including a request for production of documents and interrogatories, on Rana and Rana served responses on February 11, 2013. ( Id. at 3.) In response to requests 13, 15 and 29, Rana provided two-pages of documents. ( Id. ) Tahoe eCommerce now contends that it does not know the basis for the information provided in these documents. ( Id. at 5.)
In response to requests 5, 7, 9, 10, 12, 16, 18, 19, 20, 21, 22, 23, 25, 27 and 28, Rana responded that there were no responsive documents. ( Id. at 3.)
As to requests 2, 14, 17 and 26, Rana responded that he was withholding specific sales information as privileged and then stated that the documents in question consist of a spreadsheet documentation of sales including names and identifying information of Mr. Rana's customers, and that the information which identifies customer names and other information is summarized under Federal Rule of Civil Procedure 26(b)(5). Tahoe eCommerce contends the summary was never provided. ( Id. )
As to all but one of the remaining requests (1, 3, 4, 6, 8, 11, 30, 31, 32, 33, 34 and 35), Rana responding that no documents were in his possession, custody or control. ( Id. ) Tahoe eCommerce argues that Rana was aware of the existence of documents, but did nothing to procure and disclose those documents.
Finally, Tahoe eCommerce asserts that in response to its interrogatory 14 which asked Rana to describe each sale of goods under the marks at issue, Rana responded: "The information requested is provided in Bates ="; however, Rana never provided the bates label where the information could be located. ( Id. at 3-4.)
Tahoe eCommerce argues that Federal Rule of Civil Procedure 26(e) imposes a continuing duty on a party to supplement responses to discovery, and Rana has failed to do so. As a result, Tahoe eCommerce argues that at a minimum Rana should be required to disclose tax returns for years 2011 through 2013 and any 1099-Ks for those years. ( Id. at 4.)
In his response, Rana argues that Tahoe eCommerce is essentially seeking discovery outside the deadlines of the discovery plan and scheduling order without timely seeking to extend such deadlines, and at this point it is too late to do so. (Doc. # 56.)
In its reply, Tahoe eCommerce claims it is not seeking to extend the time for discovery or serve additional discovery; instead, it wants the court's assistance in requiring Rana to supplement ...