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Graco, Inc., et al v. Pmc Global

March 24, 2011


The opinion of the court was delivered by: Arpert, U.S.M.J




This matter comes before the Court on Motion by Defendants PMC Global, Inc., PMC, Inc., PMC Europe Investments, S.L., Denis S. Commette ("Commette"), and Gama Machinery USA, Inc. ("Gama" or "Gama USA") (collectively "Defendants" or "PMC") to compel further responses to written discovery [dkt. entry no. 486], returnable October 18, 2010. Plaintiffs Graco, Inc. and Graco Minnesota, Inc. (collectively "Plaintiffs" or "Graco") filed opposition on October 4, 2010. For the reasons stated herein, PMC's Motion is granted in part and denied in part.


Based upon the fact that the Court and the parties are well-versed with respect to the factual background and procedural history of this matter, only a brief recitation of same is necessary here.

Graco filed a Complaint [dkt. entry no. 1] on March 14, 2008 alleging "breach of contract and related duties" (see Pl.'s Complaint, dkt. entry no. 1 at 19-21), "tortious interference" (Id. at 21-23), "misappropriation of trade secrets and misuse of confidential business information" (Id. at 23-24), violation of the "Lanham Act" (Id. at 24-25), violation of the "New Jersey Fair Trade Act" (Id. at 25-26), "unfair competition" (Id. at 26), and "unjust enrichment" (Id.) related to its acquisition of Gusmer Corporation and Gusmer Europe (collectively, "Gusmer") from PMC by way of two (2) Stock Purchase Agreements ("SPA") (Id. at 7, ¶¶ 28-29). More specifically, Graco alleges that Gama USA, a Delaware corporation, and PMC, Inc., a subsidiary that "also does business as Gama-Europe and Garraf Maquinaria, S.A." (see Pl.'s Second Amended Complaint, dkt. entry no. 91 at 3, ¶ 6), and Garraf Maquinaria S.A. ("Garraf"), a Spanish corporation with PMC affiliations that "also does business as Gama and Gama-Europe" (Id. at 3, ¶ 7), "are manufacturing, marketing, and selling spare parts for Gusmer products without Graco's permission...and are using Graco Trade Secrets and Confidential Business Information to manufacture these spare parts" and "are directly soliciting the trade of current customers of Graco...using Graco Trade Secrets and Confidential Business Information" (see Pl.'s Complaint at 17-18, ¶ 75, 81; see also id. at 17-18, ¶¶ 76-79, 82-86).

On June 30, 2008, PMC filed an Answer [dkt. entry no. 23] denying Graco's allegations (see Def.'s Answer, dkt. entry no. 23 at 2-39) and a Counterclaim alleging violation of "section 2 of the Sherman Act, 15 U.S.C. § 2" (Id. at 53-54), "attempted monopolization and conspiracy to monopolize" (Id. at 54-55), "tortious interference with business advantages" (Id. at 55), violation of the "New Jersey Fair Trade Act" (Id. at 55), "unfair competition" (Id. at 56), and "trade libel and disparagement" (Id.) related to Graco's business practices and conduct in the "in-plant polyurethane processing equipment ("IPPE") market nationwide" (Id. at 46, ¶¶ 1-3). More specifically, PMC alleges that "through its acquisitions of Liquid Control, Decker Industries ("Decker"), Gusmer, and GlasCraft, Graco has built a monopoly position in the IPPE market...[with] nearly 100% market share and no significant competitors". Id. at 48, ¶ 12. PMC alleges that in response to Garraf asking Gama "to distribute Garraf products", Graco "has taken multiple steps to ensure that Gama's efforts to sell Garraf products in the United States meet with failure...that go well beyond legitimate competition and into the realm of abuse of monopoly position". Id. at 49, ¶¶ 15-19. PMC maintains that Graco has threatened not to deal with any IPPE distributor "that considers carrying Garraf products" (Id. at 49, ¶¶ 20-21), that such threats have been successful as "it has been essentially impossible to identify distributors for Garraf products...and existing Gama customers have stopped buying" even though Gama and Commette "have been informed on multiple occasions by distributors that the distributors would have carried or continued to carry Garraf products but for Graco's refusal to deal with any distributor carrying competing products" (Id. at 50, ¶¶ 22-24). Further, PMC contends that "Graco also has engaged in other false and predatory communications intended to block Garraf products from being distributed in the United States and to destroy Gama's business" (Id. at 50, ¶ 25), including "falsely claim[ing] to the trade that Gama's products are based on old or outmoded Gusmer technology" (Id. at 51, ¶ 26), making "numerous public false and knowing statements and threats concerning Gama's continued viability and the quality of Gama's product line" (Id. at 51, ¶¶ 27, 30-31), and "asserting that Graco prohibits current distributors from picking up and selling Gama's line or products and demanding that the distributor elect between Graco and Gama lines" (Id. at 51, ¶ 32).

At issue here is PMC's contention that "Graco's discovery obligations...are still incomplete" even after "the parties have extensively met and conferred". See Def.'s Br. at 1. Specifically, according to PMC, written discovery that remains in dispute includes:

-Graco's Fourth Supplemented Responses to Commette's First Set of Interrogatories ("Commette 1st Interrogatories"), nos. 1-4; -Graco's Third Supplemented Responses to PMC's First Set of Interrogatories ("PMC 1st Interrogatories"), nos. 1, 5, 6, 8; -Graco's Responses to Commette's First Set of Requests for Production ("Commette 1st RFP"), generally; -Graco's Responses to PMC's First Set of Requests for Production ("PMC 1st RFP"), generally; -Graco's Supplemented Responses to Defendants' Second Set of Interrogatories ("Def.'s 2nd Interrogatories"), nos. 19-21; -Graco's Responses to Defendants' Second Set of Requests for Admissions ("Def.'s 2nd RFA"), nos. 65-70; -Graco's Responses to Defendants' Second Set of Requests for Production ("Def.'s 2nd RFP"), nos. 146, 148-176, 180, 195-197, 207 (improperly designated within Graco's Responses to Defendants' Third Set of Requests for Production), 211 (improperly designated as within Graco's Responses to Defendants' Third Set of Requests for Production); -Graco's Supplemented Responses to Defendants' Third Set of Interrogatories ("Def.'s 3rd Interrogatories"), nos. 24-27, 29, 32-33; -Graco's Supplemented Responses to Defendants' Third Set of Requests for Admissions ("Def.'s 3rd RFA"), nos. 157-158; and -Graco's Responses to Defendants' Third Set of Requests for Production ("Def.'s 3rd RFP"), nos. 213-214, 217, 225-227, 229-237, 250-259, 261-262, 268, 271-273, 275-277, 289, 298-317.

Id. at 1-3.

PMC maintains that "Graco has largely failed to amend or supplement any of the requests at issue" and, "even in the rare instances where Graco has agreed to supplement a response, its supplementation has been incomplete and falls far short of addressing the issues the parties discussed and confer sessions". Id. at 3. Importantly, PMC notes that "Graco has largely refused to identify the specific documents [it] claim[s] are responsive", instead arguing that same "should be self-evident to PMC by conducting searches through the over six hundred thousand pages of documents produced to date". Id. at 3-4. With respect to damage-related discovery, PMC maintains that "the parties agreed that they would create reports and/or documents not necessarily generated in the normal course of business" in order to "enable both parties to provide the information necessary for each to perform its damage analyses without producing thousands of pages of useless spreadsheets and other financial records". Id. at 4. PMC further maintains that the parties "reviewed the types of damage documents that each side wanted and confirmed that the terminology each side was using was understood by the other" so as to "avoid blanket objections based exclusively upon the manner in which PMC described [Graco] divisions" and that "Graco expressly confirmed that it understood what PMC was referring to by the use of 'HPCF' and 'Fast Set' and represented that this language was sufficient to be able to work on obtaining the substantive financial information PMC requested". Id. at 4-5.

PMC contends that "Graco has subsequently taken the position that it will not run reports or compilations that are not normally generated during day-to-day business...after PMC produced the corresponding reports" and, although Graco "produced two Access databases, neither are wholly responsive to PMC's damage-related requests". Id. at 5. PMC further contends that "Graco has not amended or supplemented its responses or withdrawn its meritless objections" and "is attempting to circumvent this Motion and further delay resolution of the issues". Id. at 5-6. PMC argues that Graco's assertion that it "failed to meet and confer on damage-related requests" is "preposterous" because PMC "has already met and conferred with Graco on each of the discovery requests pertaining to damages through written correspondence, telephone conferences and in person". Id.

Oppositely, Graco contends that PMC's "countless complaints and [its] requests to compel and sanction Graco lack merit". See Pl.'s Opp'n Br. at 1. Graco notes that it "has produced documents and information responsive to PMC's requests" and that, "where it has declined to do so, [Graco] has asserted timely and proper objections to PMC's vastly overbroad requests for irrelevant materials". Id. Graco relies on the arguments set forth below in support of its contention that "all of PMC's requests for relief should be denied". Id.

On September 24, 2010, PMC filed the instant Motion seeking a Court Order compelling further responses to written discovery.

A. PMC's Arguments in Support of the Motion to Compel

1. Graco should be required to revise all vague responses to indicate one way or the other whether it has produced responsive documents.

PMC maintains that Graco cannot "justify its ongoing discovery deficiencies by blaming PMC for propounding written discovery within the timeframe permitted by statute and the Court's Scheduling Order" and notes that "Graco has now had almost four months to produce documents responsive to the last set served on May 28, 2010 and is...still not in compliance with its obligations". See Def.'s Br. at 9. PMC notes that it "operated under the same time constraints...[as Graco] and nonetheless produced documents while depositions were ongoing". Id. at 9-10. Importantly, PMC maintains that its decision "not to take the deposition of [Graco's] Rule 30(b)(6) witness on document collection issues" has nothing to do with, and is not determinative, as "to what Graco produced...[rather than what Graco] collected or how it did so". Id. at 10.

Citing Armor Screen Corp. v. Storm Catcher, Inc., 2009 WL 291160, at *3 (S.D. Fla. 2009), PMC argues that "the ambiguity in Graco's responses is axiomatic -- either Graco believes it has produced responsive documents, which PMC disputes, or Graco acknowledges that it has not, but will produce documents" -- and that "it is not acceptable for a party to respond by objecting and stating it will produce responsive documents to the extent they exist". Id. Therefore, PMC "requests the Court order Graco to revise all such vague responses to indicate one way or the other whether it has produced all responsive documents". Id.

2. Graco should be required to provide more specific answers to Commette 1st Interrogatories nos. 1-4 related to Graco's evidence of access to purported trade secrets and confidential information.

PMC notes that "these interrogatories ask Graco to describe in detail all instances where Commette or Carles Royo ("Royo") purportedly misappropriated or improperly disclosed Graco's trade secrets, including the identification of the dates, witnesses, supporting documents, and specifically what trade secret is at issue". Id. at 11. PMC points out that they "do not seek to have Graco further identify its alleged trade secrets but rather how PMC is alleged to have accessed them". Id. PMC argues that "despite a Fourth Supplemented Response, Graco still has not said how Commette and Royo misappropriated the trade secrets [at] issue". Id. Although Graco's response is voluminous in length, PMC contends it is "wholly lacking in terms of necessary facts to connect the dots between Graco's allegations and speculative assumptions as to who had access to what and when, and which alleged trade secrets were taken when and by whom". Id. Rather, "Graco makes vague references to meetings for which it cannot confirm the attendees, the agenda, or any other pertinent details", including references to "other former Gusmer employees". Id. Therefore, PMC states that "if Graco does not know these facts, it has an obligation to say so". Id.

3. Graco should be required to provide more specific answers to interrogatories and further responses to requests for production and admissions related to PMC's alleged used of Graco's confidential information or misappropriation of Graco's alleged trade secrets.

(a) Def.'s 2nd Interrogatories nos. 19-21.

Although "Graco claims that it is not required to respond to these interrogatories because they would require the production of a final list of trial exhibits", PMC maintains that they "merely seek the identification of documents that support Graco's claims of misappropriation" and that this "does not require Graco to reveal attorney-client or work product information". Id. at 12. PMC contends that Graco's cross-references to "other voluminous sets of discovery...[are] wholly inadequate". Id. Citing FED. R. CIV. P. 33(d) and Govas v. Chalmers, 965 F.2d 298, 302 (7th Cir. 1992), PMC argues that although a party may answer an interrogatory "by specifying a business record where the answer may be found, ...a party that knows or has access to an interrogatory answer may not use Rule 33(d) to avoid furnishing a responsive interrogatory answer where the answer cannot be ascertained from the documents". Id.

(b) PMC 1st Interrogatories no. 5.

PMC notes that "this interrogatory asks Graco to provide a detailed description of all instances where PMC or Royo allegedly solicited Graco's current or former customers or distributors, and to identify for each instance individuals with knowledge of the solicitation, the dates and location, and any documents which may support the solicitation". Id. at 13. PMC points out that Graco's response "only references another interrogatory" and vaguely refers to "other individuals employed or otherwise retained by PMC". Id. PMC argues that, "to the extent Graco has knowledge of other individuals, it is obligated to tell PMC who they are" and, if not, is obligated to "say so". Id. Further, Graco's "response mainly omits a description of the solicitation, the dates, the identity of witnesses, and the identification of any supporting documents" and the "few documents that Graco listed in its August 2010 supplemental responses are not illuminating on this matter". Id. Citing Smoothline v. North American Foreign Trading Corp., 2003 U.S. Dist. LEXIS 3085, at *2-5, 15 (S.D.N.Y. 2003) and In re Stasch, 2007 Bankr. LEXIS 1768, at *11-15 (Bankr. S.D. Fla. 2007), PMC argues that it "is entitled to a negative inference that there were no such instances other than those for which Graco provided specific detail". Id. at 13-14.

(c) PMC 1st Interrogatories no. 6.

PMC notes that "this discovery request calls for a description of all instances where Graco lost sales, orders, customers, or distributors arising out of any alleged misconduct by PMC or Royo, and also seeks the identity of the customer, the products involved, the loss in dollars, the date of each loss, the parties involved, and the identification of any witnesses or supporting documents as to each purported loss". Id. at 14. PMC contends that although "Graco provided a list of entities, it failed to include any of the other pieces of information called for by this interrogatory" and "inexplicably limits its response to a comparison between lost sales in 2006 and 2008" including a "single column of negative numbers which is incomprehensible". Id. PMC points out that although "Graco recently supplemented with a list of alleged supporting Bates numbered documents", these documents "provide no insight as to why sales would increase or decrease as a result of Gama USA" and "address only Graco's non-North American customers". Id. at 15-16. PMC states that it "has sought clarification" but that "Graco's supplementation has done little to shed light on these matters" even though "Graco's own witness has testified as to data that is maintained such as logging lost opportunities and lost sales and even confirmed that reports can be run showing such data". Id. at 15. PMC argues that "Graco should be ordered to provide a complete supplemental response". Id.

(d) PMC 1st Interrogatories no. 8.

PMC notes that this interrogatory "seeks a description of all instances where PMC or Royo allegedly acted in concert with others and agreed to inflict injury on Graco, including the dates and locations of each such instance and the identification of any witnesses with knowledge of the facts and documents supporting the facts". Id. PMC argues that "Graco declined to provide any substantive response to this interrogatory and instead cross-references three other voluminous sets of discovery responses". Id.

(e) Def.'s 2nd RFP nos. 148-176.

PMC notes that in response to these documents requests, "Graco identified certain entities that...PMC solicited causing Graco to lose the associated business". Id. Based on these assertions, PMC "sought documents supporting Graco's contentions for each of the identified entities". Id. at 15-16. However, "a search of Graco's production reveals very few hits which are even responsive to the entity's name let alone support the contention". Id. at 16. PMC argues that Graco should be compelled to "to amend its written responses or identify documents by Bates number...or else concede that it has no proof of lost sales". Id.

(f) Def.'s 2nd RFA nos. 65-70.

PMC notes that "these requests ask Graco to admit or deny whether affidavits from Doug Farrow, Jush Mulder, Eric Rennerfeldt, Mark Weinberger, Brian Zumbolo, and Max Baumgartner[, ...previously submitted in support of pending motions,] were submitted as expert testimony". Id. PMC "served these Requests for Admissions...[in order] to learn more about Graco's position in light of similar objections Graco raised regarding document requests". Id. PMC contends that "Graco has objected to each of these requests and refused to provide a response on the grounds that these requests improperly seek expert opinion which Graco claims is premature". Id. at 16-17. PMC argues that "whether or not Graco chooses to identify these declarants as its experts for trial is irrelevant...[because] entitled to an admission in response admitting that these affidavits were submitted (at least in part) in an expert capacity". Id. at 17. PMC further argues that "given the state of the waiver law and Graco's failure to advance a sustainable objection, the Court should deem these matters admitted and compel Graco to comply with PMC's document requests or enter an order striking each of these affidavits". Id. at 17.

4. Graco should be required to provide more specific answers to interrogatories and further responses to requests for production and admissions related to steps Graco took to protect trade secret and confidential information.

(a) Def.'s 2nd RFP no. 180 and Commette 1st Interrogatories nos. 3-4.

PMC maintains that Graco has asserted that "it has Confidential Disclosure Agreements with various employees and third parties" and, therefore, PMC is entitled to see and review any related documents that Graco relies upon in support thereof". Id. However, to date "Graco has produced blank, undated versions of the Confidential Disclosure Agreement" and it is not clear "whether or how this template was used". Id. PMC states that the "50 executed copies" that Graco produced "were from the disclosures associated with the sale of Gusmer and for prior Gusmer suppliers...not Graco's suppliers or anyone with whom Graco has done business since the date of the sale". Id. PMC further notes that its request "pertains not only to Confidential Disclosure Agreements with suppliers and third parties, but also with Graco's employees". Id. at 17-18. PMC argues that "Graco's refusal to comply is particularly damaging in light of Graco's inability to identify...what its trade secrets are, what Graco did to maintain their secrecy, and the circumstances under which PMC allegedly acquired, used, or disclosed those trade secrets". Id. at 18.

Separately, PMC claims that "Graco has completely ignored the interrogatories which require it to identify each trade secret disclosed to third parties as well as the identities of those third parties". Id. PMC argues that "Graco's misappropriation claims fail in their entirety if it cannot prove that the alleged trade secrets were protected" and that "sharing confidential information with its suppliers negates Graco's claims unless it can demonstrate that it took necessary steps to maintain...confidentiality". Id. Citing Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104-105 (D.N.J. 1990), PMC argues that it "is entitled to the actual executed agreement for every supplier to whom the alleged trade secrets were disclosed at any point in time" and "explicitly seeks an order compelling complete production and responses". Id.

(b) Def.'s 2nd RFP nos. 195-197.

PMC notes that it "asked for documents showing which employees attended...[conduct-of-business ("COB") training,] what the training consisted of, and any documents provided at [the] training" in response to Graco's representations that it "routinely administers COB training" in order to protect "confidential information and trade secrets" . Id. at 19. PMC contends that Graco "only produced acknowledgment of receipts of a document entitled Code of Business Guidelines" but that such "an acknowledgment that an employee received the document is not responsive to this request". Id. Importantly, PMC references deposition testimony given by Graco's "30(b)(6) witness on training and records of such training" with respect to "electronic training logs...documenting what types of training...[each] employee...received" and the fact that "Graco maintains that it has produced all responsive documents". Id. Similarly, PMC references the "depositions of Graco's witnesses" and claims that it became clear "that Graco did not provide actual training to all of its employees". Id. Citing Smoothline, 2003 U.S. Dis. LEXIS 3085, at *2-5, 15 and Stasch, 2007 Bankr. LEXIS 1768, at *11-15, PMC argues that it is "entitled to a negative inference with respect to any attempt by Graco to rely upon the acknowledgment of receipts as constituting training". Id.

(c) Def.'s 3rd RFA nos. 157-158.

PMC notes that "request 157 asked Graco to admit that the former Gusmer Europe employees did not attend the COB training held post-acquisition as described in Graco's Responses to...Interrogatories". Id. at 20. Citing FED. R. CIV. P. 36(a)(4), PMC maintains that "Graco's answer to this request is incomplete and only partially responsive", as "Graco must admit that some of the employees did not attend said training" if "the entirety of the group of former Gusmer Europe employees did not attend the training". Id.

Separately, PMC notes that "request 158 asked Graco to admit that the former Gusmer Europe employees did not sign the COB Guidelines". Id. Citing FED. R. CIV. P. 36(a)(4), PMC maintains that "Graco's similarly incomplete and only partially responsive," as "Graco must admit that some of the employees did not sign said document" if "the entirety of the group of former Gusmer Europe employees did not sign the COB Guidelines". Id. at 20-21.

5. Graco should be required to provide more specific answers to interrogatories and further responses to requests for production related to or arising from Graco's breach of contract allegations.

(a) Def.'s 2nd RFP no. 146.

PMC notes that it "requested documents concerning Graco's post-acquisition valuation of the goodwill, trade secrets, technology, and customer relationships Graco acquired when it bought Gusmer" as same is "pertinent to [PMC's] antitrust claims and damages analysis". Id. at

21. Although Graco responded that it "has produced or will produce documents", PMC argues that "to date it seems that Graco has omitted all valuation documents for the years 2007-2010 as well as for most of 2006" and, at this time, "should be compelled to do so". Id.

(b) PMC 1st Interrogatories no. 1.

PMC notes that "this interrogatory asks Graco to provide a detailed description as to all instances where Graco negotiated for, paid consideration for, and entered into a non-compete contract or agreement with PMC, Commette, and Royo and to identify each document and witness that supports said contention". Id. Although Graco "responded by identifying two documents pursuant to Rule 33(d)", PMC maintains that "neither of these documents are responsive to this interrogatory nor meet the requirements of Rule 33(d)" as one is a "confidentiality agreement between Commette and Gusmer...[rather than] a non-compete agreement with Graco" while the other "is an agreement with Royo...[that] does not provide any information as to the negotiation of said agreement particularly with respect to...timeline, ...individuals involved, ...and consideration". Id. at 21-22. Importantly, PMC notes that in its opposition to PMC's August 13, 2010 letter brief, Graco identified "3 documents by Bates number relating to the drafting, terms, and execution of Royo's agreement"; however, PMC argues that "Graco is...obligated to supplement its response to the written discovery to include this information". Id. at 22. Similarly, PMC maintains that "Graco has not provided any description or document showing any non-compete agreement with PMC and has...omitted any written response in this regard". Id. PMC points out that "Graco's response...states it has a claim that PMC and Royo owed Graco a common law or other related duties but failed to provide any information as to the instances giving rise to this purported common law obligation, what the obligation consisted of, what the other related duties are, whether PMC and Royo agreed to or even knew about these obligations, who was involved or the dates giving rise to said obligations". Id. Citing FED. R. CIV. P. 33(d)(1), PMC argues that although "a party may exercise the option of specifying the records from which the answer to an interrogatory may be derived or ascertained, the specification must be in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could" and that, to date, Graco's response "remains grossly inadequate". Id. at 22-23.

6. Graco should be required to provide supplemental responses to Commette 1st and PMC 1st RFP.

PMC notes that "Graco has yet to serve a supplemental response to either Commette's or PMC's First Set of Requests for Production of Documents" and has "taken the position that it is not obligated to provide any written supplementation" although "numerous deficiencies...were discussed at length over the course of multiple meet and confer calls...and Graco represented it would supplement in an effort to correct...items at issue". Id. at 23. Citing FED. R. CIV. P.

34(b)(2)(B) and Armor Screen, 2009 WL 291160, at *3, PMC maintains that Graco's "written responses...are indecipherable and create impermissible ambiguities as to whether documents actually exist". Id. PMC argues that "based upon the ambiguity Graco created in its responses and its similar failure to commit one way or the other as to what it has and has not produced", PMC "cannot adequately ascertain whether Graco's production is complete" and its concerns are heightened by the fact that "Graco produced another twenty-five thousand pages over a period of weeks after the close of the discovery clean-up period". Id. at 23-24. As such, PMC "seeks an order compelling Graco to amend its written responses to the requests for production accordingly". Id. at 24.

7. Graco should be required to provide more specific answers to interrogatories and further responses to requests for production related to Graco's alleged damages.

PMC notes that its "damages-related requests (Def.'s 3rd RFP nos. 225-6 & 298-315) seek documents crucial to proving that Graco has suffered no harm based on PMC's alleged misconduct" and are "critical to proving that Graco has illegally brandished its power as a monopolist to drive its profits and market share higher in violation of antitrust laws". Id. PMC points out that it spent "significant time and energy conferring with Graco before even serving requests to ensure that the damages requests were clear and that Graco would timely produce responsive materials". Id. However, PMC maintains that "Graco's responses were wrought with baseless objections that directly contradict and undercut the parties' earlier agreements and understandings". Id.

(a) Def.'s 3rd RFP nos. 298-303 related to Graco's annual and quarterly income statements for 2002-2010.

PMC contends that "Graco attempts to avoid its obligations under these requests based upon its wavering and ever-changing terminology with respect to how it defines and organizes the division which is responsible for products which PMC has referred to as 'Fast Set'". Id. at 24. "Given that the parties explicitly discussed this terminology well in advance of the requests being propounded", PMC maintains that Graco's "objections are not well-founded" and that "it is without question that Graco can reasonably deduce the information PMC is seeking based upon the issues in the case and the product lines Graco's allegations are based upon". Id. at 24-25.

PMC further contends that Graco "tries to escape its obligations by taking a mechanical approach" and "arguing that it does not keep separate financial statements for the subdivision". Id. at 25. PMC maintains that "this does not absolve [Graco of] its obligations under the request", as "responsive documents would include...underlying income statements for each of the Consolidated Financial Statements and all income statements related to Graco's audited financials". Id. PMC further maintains that "to the extent...information is contained as part of another all-encompassing report or noted as a line item as part of Graco's overall financials, [Graco] is required to...produce those documents". Id.

PMC argues that "Graco impermissibly places the burden on PMC for not specifically identifying...documents by their proper title", stating that "PMC made a good faith effort to do just that" during meet and confers. Id. Citing FED. R. CIV. P. 34, Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353-54 (S.D.N.Y. 1973), In re Folding Carlton Antitrust Litigation, 76 F.R.D. 420, 424 (N.D. Ill. 1977), and SEC v. American Beryillium & Oil Corp., 47 F.R.D. 66, 68 (S.D.N.Y. 1968), PMC maintains that "a propounding party need not call out the document it is requesting by name so long as the description is reasonably understandable" and "Graco cannot deny that it knew what was being requested". Id. at 25-26. As such, PMC requests that the Court "order these documents be produced". Id. at 26.

(b) Def.'s 3rd RFP nos. 304-209 related to income statements and consolidated financial statements of GlasCraft, Gusmer, and Decker.

PMC notes that "Graco does not dispute that these documents are relevant and must be produced, but...has yet to represent that it has actually produced the responsive statements in its possession, custody, or control". Id. at 26. As such, PMC "seeks an order instructing Graco to supplement its responses accordingly". Id.

(c) Def.'s 3rd RFP no. 310 related to Graco's consolidated financial statements.

Although "Graco claims its 10-Ks are responsive to this request", PMC maintains that "10-Ks are not the same as Consolidated Financial Statements or audited statements" and that its "request is not limited to [Graco's] public filings". Id. PMC notes that "10-Ks are merely projections and estimates reflecting [a] company's expectations, while audited financial statements contain more precise and actual numbers rather than estimates". Id. PMC argues that it is "entitled to and needs information contained in audited statements and any other related Consolidated Financial Statements which contain relevant data such as scorecards, dashboards, or quarterly reviews" because same is "necessary to show...exactly what Graco's profits were on sales for each product group or Graco's actual costs for selling, marketing, and distributing the products". Id. at 26-27. As such, PMC seeks an order compelling "Graco to produce all responsive documents without further delay". Id. at 27.

(d) Def.'s 3rd RFP nos. 312-315 related to Graco's annual sales reports.

PMC contends that "Graco speciously claims that no responsive documents exist in the ordinary course of business" with respect to these requests, and that, as a result, it is "clear that Graco is placing improper limitations on its obligations...due to its focus on technicalities in identifying the division and products and by wholly ignoring the parties extensive negotiations, agreement and plans for collecting and producing damage-related documents...which includes documents not necessarily generated in ordinary day-to-day business". Id. Citing S.E.C., 47 F.R.D. at 68, PMC maintains that "Graco cannot deny that it understood what information PMC is seeking given that Graco's counsel explicitly acknowledged so" and that, "even where a responding party may have uncertainties, they are obligated to apply a reasonable interpretation in good faith and respond to the extent possible". Id.

Although Graco "will likely try to rely on the Access databases it...produced [in order] to argue [that] it has complied with this request", PMC maintains that "these databases are not responsive and do not fulfill Graco's discovery obligations under Rule 34". Id. Further, PMC states that it "has no way of knowing...Graco intended the databases to be responsive to these requests given that it expressly denies the existence of responsive documents in its written responses". Id. at 27-28. PMC argues that "the Access databases are indecipherable and meaningless without an extensive list of further information and corresponding legends...and even then are unlikely to be fully responsive to these requests". Id. at 28. Citing questions and inconsistencies that it has divined, PMC maintains that "Graco's delphic spreadsheet is designed to obscure...[rather than] reveal". Id.

Citing Adv. Comm. Notes to 1980 Amendment to FED. R. CIV. P. 33(d), Puerto Rico Aqueduct & Sewer Authority v. Clow Corp., 108 F.R.D. 304, 306 (D.P.R. 1985), and T.N. Taube Corp. v. Marine Midland Mortg. Corp., 136 F.R.D. 449, 454 (W.D.N.C. 1991), PMC argues that "records must be offered in a manner that permits the same direct and economical access that is available to the responding party" and that "if compilations and summaries exist...[they] should be made available". Id. at 28-29. Although Graco claims that "it has no responsive documents that show its sales of fast set products, dates of the sale, the number of units sold, the cost of producing each product, the customer for each purpose, or the revenue from the sale", PMC maintains that this is "nonsense" because "Graco tracks this data...[in order] to compile the financial information necessary to complete its 10-Ks or Consolidated Financial Statements...[and to] run its day-to-day operations". Id. at 29. PMC states that "without a court order compelling immediate discovery, and without that immediate production, PMC will be unable to properly defend its case and prosecute its counterclaims". Id.

(e) Def.'s 3rd RFP nos. 225-226 related to Graco's revenue and profits for all spray foam equipment for the past five years.

Although "Graco contends that it has produced documents responsive to these requests", PMC maintains that "despite reasonable and diligent search efforts...[it] has been unable to locate more than few isolated responsive documents". Id. at 29. PMC argues that "these documents are an integral part of [its] damage evaluation" and that "Graco should be ordered to identify, by Bates number, the documents it contends are responsive particularly in light of the fact that [Graco] did not produce searchable text Excel files". Id. at 29-30. PMC contends that "if Graco had in fact produced responsive documents, it would seem that [it] should have no objection to identifying said documents" and should "not be permitted to evade [its] obligations by its vague responses". Id. at 30.

(f) Def.'s 3rd Interrogatories nos. 26 & 33 related to Graco's sales and revenue data.

PMC notes that interrogatory no. 26 requires Graco to "identify the total sales and revenue for each discontinued product, which it identified in response to Interrogatory No. 25, for the years 2001 through 2007". Id. PMC points out that "Graco responds that it must ascertain whether the information is maintained in the ordinary course of business and agrees to respond under Rule 33(d) if it determines there are responsive documents", but maintains that "Graco mistakes this interrogatory as a request for production under Rule 34 -- which it is not". Id. PMC argues that "even if Graco determines it does not possess a document which sufficiently identifies the information sought, it is nonetheless still obligated to provide a substantive response to this interrogatory and should be ordered to do so". Id.

Separately, PMC notes that interrogatory no. 33 "is similarly deficient in that it omits each of the facets of the information expressly called for by the request, thereby depriving PMC of crucial damage-related information which [Graco] is obligated to provide in a form that is clear and comprehensible". Id. PMC points out that Graco's "initial response to this interrogatory...stated that no document existed and therefore [Graco] could not provide a response pursuant to Rule 33(d)". Id. at 30-31. PMC argues that Graco "wholly ignored the fact that its obligations extend beyond what it can reference by way of document" and maintains that "Graco's supplementation still is insufficient". Id. at 31. As such, PMC contends that "Graco should be ordered to substantively respond to these requests". Id.

8. Graco should be required to provide responses to requests for production related to documents dated before 2004 (Def.'s 3rd RFP nos. 213-214, 227, 235-237, 250-259, 261-262, 276, 289, 304-311).

PMC notes that Graco "has limited its discovery responses to the years 2004 through the present". Id. at 31. However, PMC has previously explained to Graco that it is "seeking documents dating back a few years prior to the Gusmer acquisition in February 2004...[in order] to set the landscape in terms of what the status quo was prior to Graco's acquisition". Id. PMC maintains that this information is "particularly relevant to [its] damages assessment", as "the data from the preceding years is necessary to provide an accurate picture as to what changed and what remained constant following the Gusmer acquisition as well as the later acquisitions of GlasCraft and Liquid Control". Id. PMC notes that "Graco remains unwilling to provide any information prior to 2004". Id.

9. Graco should be required to provide answers to interrogatories and responses to requests for production related to Distributor Agreements (Def.'s 3rd RFP nos. 229-234 and Def.'s 3rd Interrogatories no. 24).

PMC contends that "as part of its September 2, 2010 ruling, the Court ordered that each of the distributor agreements must be produced". Id. at 31. PMC argues that "distributor agreements are responsive to the requests that seek documents sufficient to identify which distributor agreements Graco had in effect at various times" and, therefore, that the September 2, 2010 ruling "should control these requests as well". Id.

PMC notes that "interrogatory no. 24 seeks information about Graco's distributors who complained about or questioned the quality, prices, or availability of Graco's Spray Foam equipment and products, or Graco's discontinuation of Spray Foam equipment and products after Graco's acquisition of Gusmer". Id. at 32. PMC maintains that "Graco's apparent failure to maintain a comprehensive system to track the complaints it receives does not absolve Graco of the requirement to respond to this interrogatory to the extent that it has information in its possession, custody, or control". Id. PMC contends that "the interrogatory calls for identification of all complaining/questioning distributors, not just the representative categories Graco has chosen to address", that "Rule 33(d) requires that the responding party specify the records that must be reviewed in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could", that "Graco's identification of representative categories is insufficient on its face in that it fails to include or provide Bates numbers for clearly responsive document sets", and that "Graco's identification of its customer service department is not sufficient to identify each person with knowledge of such complaints" but rather "each individual with knowledge needs to be identified with specificity". Id.

10. Graco should be required to provide responses to requests for production related to exclusivity with suppliers (Def.'s 3rd RFP nos. 272-273, 275, and 277).

PMC notes that "Graco's response to request for production no. 272 states that no responsive documents related to distributors or customers exist, but does not address suppliers". Id. at 33. Further, Graco "has advised that it will not produce documents regarding suppliers because it contends that suppliers are outside the scope of [this] litigation". Id. PMC argues that Graco's position is "untenable in light of PMC's antitrust counterclaims which directly encompass suppliers". Id. PMC notes that "Graco has taken a similar position with respect to request for production nos. 273, 275, and 277 and has now advised...that it is unwilling to respond to these requests". Id. PMC maintains that the "Court should require immediate production" with respect to all of these items. Id.

11. Graco should be required to provide answers to interrogatories and responses to requests for production related to presentations to investors and financial reporting (Def.'s 3rd RFP nos. 316-317 and Def.'s 3rd Interrogatories no. 32).

PMC contends that "despite Graco's unfounded objections, these documents relate to...[PMC's] counterclaims on a number of levels". Id. at 33. By way of example, PMC claims that it is entitled to know "what Graco presented as its financial or market strengths, what industries Graco claimed it has a presence in, ...[and] what type of presence Graco claimed it had" and that it is entitled to "Graco's presentation of business strategy or plans that would be contained in such well as any internal analysis or management discussion of the merits of such representations and plans". Id. at 33-34. PMC notes that "Graco has admittedly failed to even inquire as to the existence of [this] information yet claims that it is irrelevant without having seen it". Id. at 34.

PMC notes that "interrogatory no. 32 asks Graco to identify each document that shows, explains, or set forth Graco's Quarterly and Annual Income Statements and Annual Consolidated Financial Statements for the years 2002 through 2010". Id. PMC maintains that "Graco's response to this interrogatory is insufficient and disingenuous in light of the parties' extensive meet and confer discussions". Id. Specifically, PMC contends that "Graco's identification of certain...10-K forms and...publicly available Annual Reports and letters to shareholders is not sufficient to satisfy this interrogatory" as the interrogatory requests all statements, "not just publicly available ones". Id. PMC argues that "10-K statements are intentionally vague and general because they are public and...typically omit specific sensitive information which would be beneficial to competitors". Id. PMC states that it "needs additional internal information...because the internal documents may and should reflect different information than 10-Ks and annual reports" such as "what portion sales...relate to the products at issue". Id. at 34-35. PMC claims that it "has specifically asked for this information and Graco has simply regurgitated its position that everything is in the 10-K", a position that PMC contends "is false". Id. at 35. PMC requests that the Court order Graco "to fully respond". Id.

12. Graco should be required to provide responses to requests for production related to Graco's "natural acquisitions" (Def.'s 3rd RFP ...

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