Gaby's Bags, LLC v. Mercari, Inc.

Background

This discovery order resolved several outstanding discovery disputes and Mercari’s motion for attorney-fee sanctions. Mercari sought $116,252.50 for litigating four earlier discovery disputes and initially sought an additional $38,680 for litigating the sanctions motion. Because there was no hearing, the court reduced the latter request to $33,680, for a total request of $149,932.50.

Mercari’s sanctions motion

The court considered Federal Rules of Civil Procedure 26(g) and 37. Rule 37 generally allows expenses when a motion to compel is granted, unless an exception applies. Rule 26(g) requires attorneys or parties signing discovery responses or objections to certify, after reasonable inquiry, that the responses comply with the rules, are legally warranted, and are not made for an improper purpose.

The court found Mercari’s fee request untimely as to the discovery order issued August 24, 2020 because Mercari waited six months to seek fees and gave no explanation for the delay. The court awarded no expenses connected to a November 17, 2020 discovery order because Mercari mostly lost those motions, the court had criticized Mercari’s undeveloped arguments and misrepresentations, and an award would be unjust.

The court awarded $29,366 for two later discovery orders. It reduced the fees for one order to $12,966 because Mercari obtained about two-thirds of the relief it sought, and awarded $16,400 for the other order because Mercari obtained all the relief it requested. The court also awarded $10,760 for litigating the sanctions motion after reducing the time claimed for the motion and reply as excessive or unreasonable. The court found Gaby’s Bags and Andrew Shapiro equally responsible and held them jointly and severally liable, meaning Mercari may recover the full award from either or both of them, but may recover it only once.

The court therefore granted Mercari’s motion for sanctions in part and awarded Mercari $40,126.00.

Gaby’s Bags’ redacted documents

After reviewing nine documents privately, the court allowed specified redactions in three documents, approved existing redactions in three others, and approved one document’s redactions except for a business address. For another document, the court found no visible redactions and ordered Gaby’s Bags to file a letter brief explaining what had been redacted. Gaby’s Bags was ordered to produce corrected redactions within seven days.

Mercari’s requests for production

The court treated Mercari’s motion as unopposed because Gaby’s Bags repeatedly refused to join the required joint discovery letter brief and had not filed its responsive portion. The court corrected part of Mercari’s description of earlier orders and granted Mercari’s motion as modified. It ordered the Yates Counterclaim Defendants to produce documents responsive to specified requests for production, subject to limitations in an earlier order, within seven days.

Gaby’s Bags’ request for additional depositions

Mercari stated that Gaby’s Bags had already taken the 10 depositions allowed by Federal Rule of Civil Procedure 30. Gaby’s Bags did not address that point or argue that it should receive permission to take more depositions. The court found Gaby’s Bags had not shown that its motion should be granted and did not grant the motion.

Gaby’s Bags’ requests for production

Gaby’s Bags served 46 requests for production near the end of fact discovery and moved to compel responses to 42 of them. The court rejected Gaby’s Bags’ argument that Mercari waived its objections by serving its responses slightly late. Even assuming a delay, the court found good cause to excuse it because any delay was minimal, appeared accidental, caused no prejudice, and a waiver would be too harsh.

On the substance, the court found Gaby’s Bags’ briefing cursory and undeveloped. Where Mercari said it had already produced some responsive documents, Gaby’s Bags did not explain what additional documents it sought or why the existing production was inadequate. Where Mercari said it had no responsive documents, Gaby’s Bags did not explain why that response was incorrect. As to Request for Production 35, concerning communications with experts, the court found that not all such communications are discoverable and that Gaby’s Bags had not adequately addressed privilege and work-product issues or shown a need for additional fact discovery.

The court therefore denied Gaby’s Bags’ motions to compel concerning these requests for production.