By Nicole D. Prysby, J.D.
The court deferred a decision on partial summary judgment regarding monopolization claims until discovery is complete, ordered one party to bring its deficient privilege log into compliance and ordered the parties to confer on another discovery dispute.
A federal district court in Texas resolved discovery disputes between an overhead door manufacturer and a door repair and installation company. Overhead Door Corporation and Overhead Door Company of Lubbock, Inc. (Overhead) claimed that OGD Equipment Co.’s business name infringed on Overhead’s trademark. OGD claimed Overhead attempted to prevent OGD from purchasing the keywords ‘overhead’ and ‘overhead door’ in violation of the Sherman Act. Overhead sought partial summary judgment as to OGD’s antitrust and unfair competition claims, and on October 7, 2019, the court decided to defer consideration of Overhead’s motion for partial summary judgment to allow OGD an opportunity to conduct discovery. On October 25, 2019, the court considered two discovery disputes between the parties. The court ordered Overhead to bring its deficient privilege log into full compliance with federal rules. The court also ordered the parties to properly confer and attempt in good faith to resolve another discovery dispute (OGD Equipment Co. v. Overhead Door Corp., October 25, 2019, Johnson, K.).
Monopolization claims. OGD is in the business of residential and commercial door repair and installation. Overhead Door Corporation is a national manufacturer, marketer, and distributor of residential and commercial overhead doors. Since October of 2012, OGD alleged it has purchased more than $750,000.00 in products and services from Overhead. In 2017, Overhead alleged that "it held a protectable trade name and trademark over the words ‘Overhead Door’" and that OGD’s "business name, trademark, and online advertisements constituted ‘clear trademark infringement violations ... under Texas and Federal law,’ ... as well as violations of Texas unfair competition laws." OGD then alleged Overhead attempted to prevent OGD from purchasing the keywords ‘overhead’ and ‘overhead door’ in violation of the Sherman Act. OGD amended its complaint in 2019 and survived Overhead’s motion to dismiss the Section 2 Sherman Act claims.
The court had stayed discovery pending the ruling on the motion to dismiss and the discovery stay was lifted in August. While the discovery stay was in place, OGD amended its complaint, narrowing its antitrust claim. One day after the discovery stay was lifted, Overhead filed a motion seeking summary judgment as to OGD’s antitrust and unfair competition claims. On September 24, 2019, the court ordered the parties to exchange all requested and not-objected-to documents and emails by October 9, 2019.
Discovery goes forward. OGD argued that the court should defer consideration of Overhead’s motion for partial summary judgment to allow OGD an opportunity to conduct discovery. The magistrate judge agreed, in an order and report and recommendation on October 7, 2019. The order pointed out that until recently, the parties were focused on reaching a settlement and discovery only began in earnest in June 2019. OGD has not received the discovery it needs in order to properly respond to a no-evidence motion for summary judgment on its antitrust claims. OGD also informed the court of multiple outstanding discovery requests, and that no emails have yet been exchanged by any party. Because discovery was stayed as to the antitrust claims, and OGD has not had the benefit of full discovery on those claims, the court found that deferring to rule on Overhead’s motion for partial summary judgment until discovery is completed was appropriate.
Discovery disputes. On October 25, 2019, the court considered two discovery disputes between the parties. OGD argued that the Overhead’s privilege log was overbroad and deficient, as it contained thousands of entries with insufficient descriptions. Overhead argued OGD did not produce adequate discovery with regards to OGD’s Internet search terms data and emails from a certain personal email account.
As to the deficient privilege log, OGD’s counsel asserted that Overhead’s privilege log contained approximately 6,100 entries, around 4,500 of which OGD alleged only identify the document by type, date, and a claim of privilege. Overhead’s counsel acknowledged they were still in the process of reviewing and supplementing the privilege log to bring it into full compliance, thereby admitting it was presently overbroad and deficient under the Federal Rules. The court ordered Overhead to revise their privilege log such that it is fully compliant with Rule 26(b)(5) and produce the revised log to OGD by November 1, 2019. The court further ordered that lead counsel for Overhead file an affidavit certifying that the revised privilege log complies with Rule 26(b)(5) and that Overhead produce any documents removed from the current privilege log by November 1, 2019 and prepare a set of all privileged documents with all privileged language highlighted by November 4, 2019.
Regarding OGD’s document production, Overhead claimed OGD did not produce all the documents regarding OGD’s tracking of customer internet search terms. Overhead further alleged that OGD failed to produce OGD CEO Westbrook’s emails from a personal email account. In response to these claims, OGD’s counsel asserted that it had not properly conferred with Overhead’s counsel on these matters, as the parties had only exchanged emails the day before the hearing. The court found that the parties failed to comply with the "meet and confer" requirements of Rule 37(a)(1) and Eastern District of Texas Local Rule CV-7. The parties came to the court without first properly conferring regarding the disputes, much less attempting in good faith to resolve the disputes. The parties did not yet know if the documents Overhead was complaining about were in OGD’s possession or even existed at all. Without this information, it was impossible for the parties to know if an actual dispute existed. Only after the parties properly confer and attempted in good faith to resolve any dispute could the parties contact the court regarding the disputes, the court said.
This case is No. 4:17-cv-00898-ALM-KPJ.
Attorneys: Robert Parke Latham (Jackson Walker LLP) for OGD Equipment Co. Edgar Leon Carter (Carter Arnett PLLC) and Kenneth R. Glaser (Gardere Wynne Sewell, LLP) for Overhead Door Corp. Jody Dewayne Jenkins (Jenkins, Wagnon & Young PC) and David McDonald Prichard (Prichard Hawkins & Young) for Overhead Door Co. of Lubbock, Inc.
Companies: OGD Equipment Co.; Overhead Door Corp.; Overhead Door Co. of Lubbock, Inc.
MainStory: TopStory Antitrust TexasNews
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