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Clubcom, Inc. v. Captive Media

February 24, 2009

CLUBCOM, INC., PLAINTIFF,
v.
CAPTIVE MEDIA, INC., D/B/A HEALTH CLUB PANEL NETWORK, DEFENDANT.
CM SHAREHOLDER HOLDINGS, INC., F/K/A/ CAPTIVE MEDIA, INC., D/B/A HEALTH CLUB PANEL NETWORK, A CALIFORNIA CORPORATION, COUNTERCLAIM PLAINTIFF,
v.
CLUBCOM, INC.,A DELAWARE CORPORATION; COUNTERCLAIM DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

ORDER OF COURT

Presently before the Court for disposition is the MOTION TO COMPEL DISCOVERY RESPONSES, with brief in support, filed by Defendant and Counterclaim Plaintiff CM Shareholder Holdings, Inc., f/k/a Captive Media, Inc., d/b/a Health Club Panel Network ("Captive Media") (Document Nos. 75 and 76, respectfully), the MEMORANDUM OF LAW IN OPPOSITION filed by Plaintiff and Counterclaim Defendant ClubCom, Inc.. (Document No. 82), and the REPLY BRIEF (Document No. 83) filed by Captive Media (Document No. 83).

Captive Media's motion seeks to compel responses to the following discovery requests:

a. Interrogatories 2-3, 5-8, 10, 13-17;

b. Requests for Admission 64-66; and

c. Requests for Production 11-23, 24-27, 28-31, 33, 35-37, 44, 46-47, 50-61; 63-64; 66, 68, 72, 75, 77, 79, 81, and 87.

At the outset, ClubCom opposes the motion on the ground that Captive Media has failed to fulfill its "meet and confer" obligations pursuant to Federal Rule of Civil Procedure 37(d) and Local Rule 37.1.

LOCAL RULE 37.1

Local Rule 37.1 requires counsel for the moving party to submit to the Court a certificate "that said counsel . . . has made a reasonable effort to reach agreement with opposing counsel . . . on the matters set forth in the motion and summarizing the facts and circumstances of that reasonable effort . . . ." Local Rule 37.1 imposes a substantial obligation on counsel to resolve discovery problems before bringing them to the attention of the court. ClubCom contends that Captive Media "made, at best, only the most perfunctory attempt to satisfy its 'meet and confer' obligations and, at worst, did as little as possible so as to ensure that it would bring a discovery dispute to the Court." Br. at 6-7. From a review of the record, the Court does not agree.

The original discovery requests propounded by Captive Media were served on ClubCom on July 10, 2008. Thereafter, ClubCom requested and received extensions on four separate occasions. ClubCom served its discovery responses on October 6, 2008. In October 2008, Captive Media sent "meet and confer" letters with respect to the Zoom acquisition documents that ClubCom refused to produce. On November 26, 2008, Captive Media, through counsel, sent a nine-page letter to ClubCom detailing what it considered to be deficiencies in the discovery responses. On December 22, 2008, counsel for ClubCom responded to the November 26, 2008, letter, and asserted the same objections as it has raised in its response to the motion to compel.

The Court finds that Captive Media has complied with Local Rule 37.1 and will proceed to examine the merits of the motion.

DISCOVERY REQUESTS

Captive Media's motion to compel is GRANTED IN PART AND DENIED IN PART and ClubCom shall on or before March 9, 2009, provide full and complete answers to the pending interrogatories, requests for admissions, and request for production of documents to the best of its ability and understanding of the request(s), in accordance with the following rulings on the objections filed by Captive Media.

INTERROGATORIES

As a preliminary matter, the Court notes that ClubCom argues that a number of interrogatories are "contention interrogatories" and are, therefore, premature at this stage. The Court rejects this argument for a couple of reasons.

First, fact discovery ends in this case on May 4, 2009; the Court finds that any requested "contention interrogatory" is hardly premature when discovery ends in approximately nine (9) weeks. Additionally, Federal Rule of Civil Procedure 33(a)(2) specifically states "[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to facts or the application of law to fact. . . ." (emphasis added.) The Court recognizes, however, that the Rule also provides that "the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time." Id.

2. Objection GRANTED

Captive Media requests each fact upon which ClubCom bases its contention that it is entitled to recover damages, and the nature and amount of all damages. In response, ClubCom states that "[Captive Media's] breaches of the License Agreement, use of unfair trade practices, and violation of ClubCom's intellectual property rights have caused substantial damages to ClubCom." (emphasis added). The Court finds that this is a straightforward interrogatory and is deserving of a straightforward answer. The conclusory response that ClubCom has suffered "substantial damages" is a wholly inadequate response. ClubCom shall provide a complete and specific response to this interrogatory.

3. Objection DENIED

The Court finds that ClubCom has provided a complete response.

5. Objection GRANTED

Captive Media requests the identity of the ClubCom customers who "expressed confusion over HCPN-DB and how it worked with the ClubCom Network." In response, ClubCom does not identify any individual but rather states that "representatives of both the Jewish Community Centers and Fitworks expressed confusion, . . . as well as representatives of Sport & Health Clubs and Town Sports International." The Court finds that this is a straightforward interrogatory and is deserving of a straightforward answer. The general response that unidentified ...


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