Now-Casting Economics, LTD. v. Economic Alchemy LLC

Background

Now-Casting Economics, Ltd. brought claims under the federal trademark statute against Economic Alchemy LLC. Economic Alchemy held trademarks for “nowcast,” “nowcasting,” and related terms. Now-Casting alleged that those terms were generic or merely descriptive and that its use of them did not infringe Economic Alchemy’s trademark rights.

The motion concerned Economic Alchemy’s responses to requests for production, interrogatories, and requests for admission. Now-Casting also challenged Economic Alchemy’s failure to respond to a second set of interrogatories and document requests. Economic Alchemy opposed the motion and argued, among other things, that some information could be obtained more efficiently through depositions, that some interrogatories were improper, and that certain requests were irrelevant or burdensome.

Ruling on the First Requests

The court declined to strike Economic Alchemy’s responses to the first requests or treat the requests for admission as automatically admitted. Although the responses were late, the court accepted counsel’s explanation that he was awaiting entry of a protective order. The court also found that Now-Casting had not shown measurable prejudice and that treating all the requests as admitted could create contradictions rather than clarify the issues.

The court found that Economic Alchemy’s own use of the disputed terms, including in publications, was relevant and discoverable. It ordered Economic Alchemy to answer Interrogatory No. 7, which sought identification of writings by Economic Alchemy and its personnel concerning economic predictions or forecasting. The parties were directed to discuss narrowing that interrogatory if necessary because of burden.

The court found Interrogatory No. 8 overly broad and burdensome as written. It ordered Economic Alchemy to answer a narrower version seeking publications of which it was aware, from January 1, 2013, to the present, in which Economic Alchemy or Ms. Guzman was quoted or cited concerning the disputed terms.

The court held that Interrogatories Nos. 14–18 sought relevant information but were premature contention interrogatories—that is, questions seeking a party’s detailed explanation of its case—and that the information could be obtained more efficiently through depositions. Economic Alchemy therefore was not required to revise its responses to those interrogatories. The court ordered Economic Alchemy to answer Interrogatory No. 19, which sought the date on which it first became aware of a specified 2008 paper.

The court found Request for Production No. 5 overly broad and burdensome as written. It ordered Economic Alchemy to conduct a reasonable search and produce publications created or dated on or after January 1, 2013, that contained or described the disputed terms.

For Requests for Admission Nos. 13–29 and 32–44, the court found the requested information relevant but accepted Economic Alchemy’s denials and did not require revised responses. The court also accepted Economic Alchemy’s clarification that Request for Admission No. 30 was denied and did not require a revised response. The court deemed Requests for Admission Nos. 45–54 denied, so no further response was required, while rejecting Economic Alchemy’s relevance objection to those requests concerning foreign trademark applications or registrations.

Second Requests and Disposition

Because Economic Alchemy had not responded to the second requests, and the requests themselves were not submitted to the court, the court could not resolve objections concerning their substance. It rejected Economic Alchemy’s objection that the interrogatories exceeded the applicable limit based on Now-Casting’s representation that the first and second sets together contained 25 interrogatories. The court also rejected Economic Alchemy’s justification that Now-Casting had not responded to Economic Alchemy’s discovery requests.

The court ordered Economic Alchemy to respond to the second requests and provide amended responses to the first requests by February 19, 2021. It ordered the parties to meet and confer by February 26, 2021, and, if disputes or scheduling issues remained, to file a joint letter by March 5, 2021. The court stated that it would then decide whether to resolve the disputes in writing or hold a discovery conference.

The court granted in part and denied in part Now-Casting’s motion to compel and directed the clerk to close the motion docket entry.