Case 0:09-md-02059-RHK-JJK Document 65 Filed 08/19/09 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

In re: Multidistrict Litigation

Activated Carbon-Based Hunting No. 09-md-2059 (RHK/JJK)
Clothing Marketing and Sales Practices
Litigation

ORDER ON MOTION FOR

THIS DOCUMENT RELATES TO DISCOVERY SANCTIONS
Buetow, et al. v. A.L.S. Enterprises, Inc. et
al., Civ. No. 07-3970 (RHK/JJK)

This matter is before the Court on Plaintiffs’ Motion to Compel, Motion to

Amend the Pretrial Scheduling Order, and Motion for Discovery Sanctions (Doc.

No. 212), to the extent that the motion requests sanctions for Defendants’ alleged

abuses of the discovery process and to the extent that certain requests were not

ruled on at the August 13, 2009 hearing on Plaintiffs’ motion. 1 Based on further

review of the record, the Court denies Plaintiffs’ request for sanctions because

the circumstances here make an award of expenses or sanctions improper.

At the August 13, 2009 hearing, the Court commented on several peculiar

aspects of the parties’ submissions, some of which were of Plaintiffs’ doing. For

instance, Plaintiffs failed to comply with District of Minnesota Local Rule 37.2,

1
At the August 13, 2009 hearing on Plaintiffs’ motion, the Court denied
Plaintiffs’ request for sanctions to the extent that it related to Interrogatories 12
and 14 of Plaintiffs’ Third Set of Interrogatories and various requests in Plaintiffs’
First Request for Production of Documents. (Doc. Nos. 238 and 239, Buetow v.
A.L.S. Enterprises, Inc., et al., Civ. No. 07-3970 (RHK/JJK).) The Court took the
matter of sanctions not ruled on at the hearing under advisement. (Id.)
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which requires a specification of the discovery in dispute, and a verbatim

recitation of the request and objection concerned, in the motion itself or in a

supporting memorandum. The parties should be aware that the Court requires

strict adherence to Local Rule 37.2 not out of a sense of rigid formalism, but as a

matter of efficient resolution of discovery disputes. This is precisely the reason

the Court has included a reference to Local Rule 37.2 in the Practice Pointers

and Preferences for Magistrate Judge Jeffrey J. Keyes, which are available on

the website for the Minnesota Chapter of the Federal Bar Association,

http://www.fedbar.org/minnesota.html#pointers. Any future discovery motion in

this case (and indeed in any of the other matters pending before the Court in the

multidistrict litigation of which this case is a part) must adhere to Local Rule 37.2

so that the Court has a clear picture of the specific discovery in dispute, the

precise response or objection made, and the basis for considering the response

or objection improper. The parties should also be aware that our local rules

provide “[f]ailure to comply with a local rule may be sanctioned by any

appropriate means needed to protect the parties and the interests of justice.”

D. Minn. Loc. R. 1.3.

Further examination of the record also discloses that Defendants correctly

asserted at the August 13, 2009 hearing that Plaintiffs have not specifically

requested sanctions for any discovery dispute other than the request for

sanctions that the Court denied at the hearing. Federal Rule of Civil Procedure

37(a)(5) does not explicitly require a party to request sanctions for each

2
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discovery violation it asserts in order to obtain the expenses incurred in bringing

a successful motion to compel, but Plaintiffs’ failure in this regard, at the very

least, takes the sting out of their outrage about Defendants’ conduct.

Although the Court has decided not to award any expenses or discovery

sanctions in connection with Plaintiffs’ motion, Defendants’ response to the

motion draws the Court’s concern as well. In particular, Defendants provided no

credible justification for their refusal to provide Plaintiffs with the insurance

agreements under which an insurance business may be liable to satisfy all or

part of a possible judgment. See Fed. R. Civ. P. 26(a)(1)(A)(iv). At the August

13, 2009 hearing, Defendants asserted that because the claims they submitted to

their insurers as part of this litigation were denied, no disclosure pursuant to

Federal Rule 26(a)(1)(A)(iv) was required. It should be noted that Defendants’

memorandum was anything but clear with respect to whether claims had been

submitted at all, had been submitted and denied, or whether Plaintiffs were

adequately informed that this was the basis for Defendants’ refusal to disclose

the insurance agreements. In any event, Defendants provided no support for

reading the disclosure requirements in such a narrow way as to exclude from

their purview insurance agreements under which a claim was initially denied. As

a result, the Court ordered all the insurance policies produced.

Further, as the Court stated at the hearing, Defendants’ memorandum

opposing Plaintiffs’ motion begins with a lengthy recitation of the merits of

Plaintiffs’ claims—matters that are completely irrelevant to the resolution of

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Plaintiffs’ motion. Unless the reference to these irrelevant matters was intended

to distract the Court from the discovery dispute at issue, the strategy behind the

submission of such a memorandum entirely escapes the Court. All parties

should limit their memoranda and argument to the matters before the Court.

Accordingly, IT IS HEREBY ORDERED that:

1. To the extent it requests sanctions for Defendants’ alleged abuses of

the discovery process, and to the extent such requests were not ruled on at the

August 13, 2009 hearing, Plaintiffs’ Motion to Compel, Motion to Amend the

Pretrial Scheduling Order, and Motion for Discovery Sanctions (Doc. No. 212), is

DENIED.

Date: August 19, 2009

s/ Jeffrey J. Keyes
JEFFREY J. KEYES
United States Magistrate Judge