Case 2:17-cv-00062-UA-MRM Document 49 Filed 08/18/17 Page 1 of 10 PageID 723
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`FORT MYERS DIVISION
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`HERBERT E. TOWNSEND, an individual,
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`Plaintiff,
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`v.
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`BROOKS SPORTS, INC., a Washington
`corporation,
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`Defendant.
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`Case No. 2:17-cv-00062-UA-MRM
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`DEFENDANT BROOKS SPORTS, INC.’S RESPONSE
`IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 42)
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`Defendant Brooks Sports, Inc. (“Brooks”) submits this response in opposition to Plaintiff
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`Herbert Townsend’s (“Townsend”) Motion to Compel Defendant to Produce Documents and to
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`Answer Plaintiff’s Interrogatory No. 1 (Dkt. No. 42, “Mot.”). Townsend’s Motion alleges a
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`number of disputes, not one of which is ripe for consideration (and many of which are not
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`disputes at all). Townsend’s misunderstanding stems from a failure to meet and confer prior to
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`filing this Motion. Had Townsend followed the Court’s rules and discussed the issues with
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`Brooks, this Motion could have been avoided. As such, and for the reasons explained here, the
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`Motion should be denied.
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`I.
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`RELEVANT BACKGROUND
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`Townsend served discovery requests on June 21, 2017. Mot. at 2. Brooks timely
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`responded to those requests on July 21, 2017. See id. To date, Townsend has not met and
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`conferred with Brooks regarding any of Brooks’ responses or the documents implicated therein.
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`A.
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`Brooks Is Not Shirking Its Discovery Obligations
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`Brooks takes its discovery obligations seriously. Brooks therefore objects to Townsend’s
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`Case 2:17-cv-00062-UA-MRM Document 49 Filed 08/18/17 Page 2 of 10 PageID 724
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`unsupported characterizations of its efforts in this case. Without belaboring the particulars,
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`Brooks respectfully disagrees with those characterizations. As one example, Townsend argues
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`that Brooks “has refused to produce any documents, and has even refused to answer whether any
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`information and documents are outside its voluminous and repetitive objections.” Id. at 1. In
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`fact, Brooks was clear in telling Townsend’s counsel the opposite. See Dkt. No. 42-5 at 1
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`(Hayden Aug. 2, 2017 Em. to Hampton) (“Brooks also was not asserting that no documents
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`requested by Mr. Townsend is not objected to. We are reviewing documents we collected from
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`Brooks and expect to have a production timeline to give you in mid-next week.”). What the
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`discovery correspondence reflects, and what Townsend would have understood had he met and
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`conferred, is that Brooks is working diligently and in good faith to provide responsive discovery
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`to Townsend.
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`B.
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`Brooks’ Objections on Confidentiality Grounds Are Resolved
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`Townsend complains that, in its discovery responses, Brooks objected to producing
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`confidential documents and discovery, including “yearly gross sales” and revenue, confidential
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`design and engineering documents, and market information in the absence of a protective order.
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`See Mot. at 3–4 (quoting Dkt. No. 42-3 at 6–7 and referring to Brooks’ Initial Disclosures, filed
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`as Dkt. No. 38-21). Brooks agreed to produce responsive, non-privileged discovery “once a
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`suitable protective order is in place.” Id. at 4–5; see generally Fed. R. Civ. P. 26(c)(1)(G)
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`(contemplating protective orders so “that a trade secret or other confidential research,
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`development, or commercial information not be revealed or be revealed only in a specified
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`way.”).
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`These objections on confidentiality grounds were not a surprise to Townsend. Not only
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`had Townsend agreed with Brooks that a protective order would be necessary in this case well
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`before Brooks served its responses, but Townsend also made a production accompanying his
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`Infringement Contentions with an “Attorneys’ Eyes Only” designation, presumably in reliance
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`on a future protective order. See Dkt. No. 29 at 6 (“The parties . . . agree that a protective order
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`is needed.”).
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`Since the filing of Townsend’s Motion, the parties have agreed on the terms of an interim
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`protective order to safeguard the parties’ confidential information.1 With that objection resolved,
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`Brooks has begun processing documents for production within the next week, and Brooks
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`expects to continue to produce additional relevant documents as they are located and reviewed.
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`There is no dispute as to these documents.
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`C.
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`Brooks Continues to Diligently Search for and Produce the Requested
`Discovery Relating to the Accused Products
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`Brooks’ investigation into relevant documents began shortly after the case was filed and
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`continues today. But the products (running shoes) implicated by Townsend’s requests are not
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`part of Brooks’ current product lines, nor have they been for several years. In the intervening
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`years, Brooks has moved the location of its offices two times. Many records relating to the
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`original design and development of these former products are now archived or otherwise not
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`immediately accessible, and take time to locate, collect, and produce.
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`For example, Townsend’s interrogatory seeks the number of units sold and annual
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`revenue relating to shoes containing a particular midsole configuration. Mot. at 3 (quoting
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`Interrogatory No. 1). Brooks maintains an analytical reporting tool with current information
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`relating to its recent products. Brooks is able to run reports from that data. However,
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`Townsend’s interrogatory seeks older (not current) sales data that is unavailable through this
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`1 Townsend did not provide a draft to Brooks with the documents he designated “Attorneys’
`Eyes Only,” specifying exactly what that he intended that designation to mean and limit. Brooks
`offered to prepare a draft. Dkt. No. 42-5 at 4 (Hayden July 24, 2017 Em. to Hampton). Brooks
`provided that draft two days later. Id. at 3 (Hayden July 26, 2017 Em. to Hampton). To date, the
`parties continue to negotiate the scope of the protective order (specifically, what types of
`documents to which Mr. Townsend (personally) will be permitted access).
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`3
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`tool. Thus, from reasonably accessible data, Brooks cannot obtain records to fully respond to
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`Townsend’s discovery requests.
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`Rather, Brooks has had to turn to archives of sales data dating back to the relevant
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`timeframe. The archived data is not used for day-to-day reporting. Nor can Brooks run reports
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`from the archived data in a way that is analogous to its active database. To obtain data from the
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`archives, Brooks’ data analysts must process the archival data such that they may create and run
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`queries (e.g., write code) to extract sales and other information. Furthermore, in the years since
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`Brooks sold the accused shoes, the metrics used to track Brooks’ sales data appear to have
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`changed. In other words, a dollar figure reflected as revenue in Brooks’ active sales data may
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`not correspond to the same dollar figure in Brooks’ archival data. Until Brooks understands and
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`potentially adjusts for such discrepancies, data in its response may be inaccurate and/or
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`incomplete. Thus, to respond to Townsend’s interrogatory in a way that can be meaningfully
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`verified, Brooks has to (i) access the archival data, (ii) prepare queries to extract data relating to
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`the accused products, and (iii) verify the resulting data with data from Brooks’ active database.
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`Brooks is actively performing these steps. However, despite its efforts, and given the
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`complexities of this analysis, at the time of filing of this opposition Brooks does not believe it
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`could comply with the proposed production timeframe demanded in Townsend’s Motion. See id.
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`at 8 (requesting that Brooks be ordered to produce the above, archived information within three
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`days from the date of an order).
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`Townsend also seeks a specific listing of Brooks’ shoes that contained a particular
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`midsole configuration. Id. at 3–4. As noted above, at a certain point in time, Brooks transitioned
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`beyond this design to newer models. When Brooks initially investigated a list of shoe models
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`and related data responsive to Townsend’s discovery requests, the result contained certain
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`seemingly-anomalous data around the transition, raising questions related to if, where, and when
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`particular shoe models were sold. Brooks is investigating and re-conducting some of its previous
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`internal analyses to investigate its former product lineup and which shoes containing the accused
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`midsole may have been sold in the U.S. around this transition period. Brooks informed
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`Townsend’s counsel of this investigation and offered to provide a tentative product listing
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`informally, notwithstanding the possibility of some inaccuracies. Brooks also offered to
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`prioritize the collection of certain documents in which Townsend was particularly interested, to
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`which Townsend has not responded. See Declaration of Jonathan T. McMichael, ¶ 2, Ex. A at 1
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`(Aug. 3 Em. from Hampton).
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`Finally, Townsend seeks technical and advertising documents relating to the accused
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`shoes. Mot. at 3–4. This request is largely intertwined with the difficulties Brooks has identified
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`above. For example, once Brooks determines which shoes contained the relevant midsole,
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`Brooks’ investigation into technical and advertising documents will involve locating, collecting,
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`and reviewing paper documents and archived electronic documents. As noted above, despite
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`Brooks’ offers, Townsend has not contacted Brooks to expedite the collection and production of
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`these or any other particular type of documents. See Ex. A at 1.
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`As set forth above, Brooks has been attempting to locate and accurately produce
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`discovery responsive to Townsend’s request. Had Townsend met and conferred prior to filing
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`this Motion, Brooks would have conveyed this information to him. Indeed, Brooks specifically
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`offered to do so before Townsend prematurely filed this Motion. Id.; see also id. at 2. To the
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`extent Townsend believes that Brooks has sat on its hands and withheld relevant discovery, that
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`is incorrect and the misconception is a result of a failure to meet and confer. There is no dispute
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`that once located, the responsive discovery will be produced.
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`II.
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`ARGUMENT
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`Given the above facts, Townsend’s Motion should be denied for numerous reasons.
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`A.
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`Townsend Failed to Meet and Confer
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`First, Townsend’s Motion violates this Court’s rules. Local Rule 3.01(g) requires that
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`before filing a motion, “the moving party shall confer with counsel for the opposing party in a
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`good faith effort to resolve the issues raised by the motion.” This “requires a substantive
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`conversation in person or by telephone, and it does not envision an exchange of ultimatum by
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`fax or letter.” Dkt. No. 32 (Scheduling Order) at 8 (emphasis in original).
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`No such conference occurred here. Although Townsend certifies that the required
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`conference took place, Mot. at 9, that did not happen. Rather, the parties exchanged emails
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`relating to Brooks’ discovery responses and the need for a protective order. See generally, Ex.
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`A. In those emails, Brooks answered Townsend’s questions, and further expressed that it was
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`“happy to discuss” the issue live if Townsend had any further concerns. Id. at 1, 2. Plaintiff
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`never picked up the phone. Instead, he filed the instant Motion alleging a dispute where one
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`requiring the Court’s time and prescription does not exist. Townsend’s approach is expressly
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`contrary to this Court’s rules.
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`If Townsend had properly contacted Brooks about his concerns before filing this Motion,
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`Brooks would have explained its confidentiality concerns and document collection efforts to
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`Townsend. Then, the parties could have discussed the steps that Brooks was undertaking,
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`discussed what data may not be reasonably accessible, determined if there were disputes with
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`respect to those issues, tried to resolve them, and, if unsuccessful, brought those specific issues
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`to the Court in a proper motion to compel. The fact that no dispute is ripe is evident; since he
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`filed this Motion, Townsend agreed to an interim protective order, and Brooks is beginning to
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`produce documents to Townsend. The Court therefore should deny the Motion as premature.
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`B.
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`Brooks Has Not Refused to Produce Any Documents
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`Townsend’s failure to meet and confer is not merely symbolic. Had Townsend complied
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`with the rules and discussed the issues by phone, this Motion could have been avoided. This is
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`because, as explained herein, there is no dispute with respect to the discovery sought. Brooks
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`was not and is not categorically refusing to produce documents responsive to his requests.
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`The allegedly disputed discovery falls into two categories, neither of which warrants
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`Court intervention. First, as explained above, the bulk of Townsend’s concerns relate to
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`confidential documents. Brooks initially objected that in the absence of a protective order, its
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`confidential business information would be subject to unlimited dissemination. Mot. at 3–5;
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`Ex. A at 2, 5–6. Brooks’ concern was particularly acute given that Townsend expressed a desire
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`to share Brooks’ confidential documents with an undisclosed third party. See Ex. A at 2, 4.
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`Regardless, that issue is now moot; Townsend agreed after he filed this Motion to an interim
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`protective order.2 Accordingly, Brooks is now beginning its production of responsive discovery
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`and will continue to produce additional materials as they are located.
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`Second, Townsend claims that Brooks has failed to produce responsive documents fast
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`enough, and to provide a date certain by which its production will be complete. But, as
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`explained above, the documents sought in Townsend’s discovery requests relate to an older
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`generation of Brooks shoes. Since those shoes were sold, Brooks has not only moved its
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`physical headquarters, but has also migrated its electronic record keeping. Responsive discovery
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`is not readily accessible.
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`2 Townsend asserts that Brooks has “refus[ed] to provide asserted confidential information and
`documents for outside counsel access only.” Mot. at 8. This is incorrect. The day before filing
`this Motion, Townsend’s counsel represented by email that it was “willing [to] accept all
`production and the interrogatory response immediately as outside attorney access only.” See Ex.
`A at 1. Brooks did not refuse Townsend’s offer; Townsend failed to meet and confer before
`filing this Motion. Since then, the parties have agreed on an interim protective order and Brooks
`no longer maintains objections on confidentiality grounds.
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`Nevertheless, Brooks has undertaken a significant effort to promptly locate the
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`information Townsend seeks. With respect to technical documentation, this includes
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`investigating and reviewing hard-copy documents and electronic documents that are no longer
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`used in the ordinary course of business. The same is true with respect to sales information; the
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`discovery sought does not exist in a form that can be immediately produced. Brooks therefore
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`has asked its data analysts reconstruct older data from an archival system. Once the archival data
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`is retrieved, those analysts must write code to elicit sales data, and verify this older data by
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`reconciling it with more recent metrics to ensure that the information is consistent with current
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`records. To forego these basic steps, as Townsend requests, would risk Brooks producing
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`misleading and inexplicable information in this case.
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`III. CONCLUSION
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`There is no dispute regarding the discovery implicated in the Motion. By skipping the
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`Court’s meet and confer procedure, Townsend misapprehends (and misrepresents) a
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`disagreement that simply does not exist. Since the Motion was filed, the parties have already
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`agreed on a protective order, and accordingly Brooks has already begun processing documents
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`for production to Townsend. Brooks has also continued its diligent investigation into further
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`responsive documents, the vast majority of which are in locations and formats that are no longer
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`readily used in the ordinary course of business. There is no dispute that Brooks will continue to
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`produce relevant discovery resulting from its searches as discovery progresses.
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`Therefore, Brooks respectfully requests that the Court deny Townsend’s Motion.3
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`3 If it is so inclined, the Court should order the parties to meet and confer and submit a concrete
`proposal regarding remaining disputes, if any, within 14 days of the Court’s Order. As it stands,
`Townsend’s generalized demand that Brooks’ production of archived data has not been fast
`enough is neither reasonable nor ripe.
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`Dated: August 18, 2017
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`Respectfully Submitted,
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`FENWICK & WEST LLP
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`By: /s/Darren Donnelly
`Darren Donnelly (admitted pro hac vice)
`801 California Street
`Mountain View, CA 94041
`Tel: (650) 988-8500
`Fax: (650) 938-5200
`Email: ddonnelly@fenwick.com
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`Attorneys for Defendant Brooks Sports, Inc.
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`Amy E. Hayden (admitted pro hac vice)
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Tel: (415) 875-2300
`Fax: (415) 281-1350
`Email: ahayden@fenwick.com
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`Jonathan T. McMichael (admitted pro hac vice)
`1191 Second Avenue, 10th Floor
`Seattle, WA 98101
`Tel: (206) 389-4510
`Fax: (206) 389-4511
`Email: jmcmichael@fenwick.com
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`Bryan D. Hull
`Florida Bar No. 20969
`BUSH ROSS, P.A.
`1801 N. Highland Avenue
`Tampa, FL 33601
`Tel: (813) 224-9255
`Fax: (813) 223-9620
`Email: bhull@bushross.com
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on August 18, 2017, all counsel of record who consented to
`electronic service are being served with a copy of this document via the Court’s CM/ECF
`system. I further certify that I mailed the foregoing document and the notice of electronic filing
`by first-class mail to any non-CM/ECF participants.
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`/s/Darren Donnelly
`Darren Donnelly
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