Seattle Trademark Lawyer

On April 6, the Western District imposed discovery sanctions against the plaintiff in Mother, LLC v. L.L. Bean, Inc., No. 06-5540, an infringement case arising out of two competing hunting vests. Gig Harbor-based Mother alleges that the Maine outfitter’s vest infringes Mother’s trade dress and constitutes a false designation of origin. L.L. Bean denies the allegations.

L.L. Bean moved to compel based on documents Mother allegedly failed to provide in discovery, as well as Mother’s conduct during the deposition of Martin Grabijas, Mother’s president. In particular, L.L. Bean alleged it learned at Mr. Grabijas’ deposition that Mother had not provided financial records in an electronic form in response to L.L. Bean’s discovery requests—even though Mother’s lawyer previously had represented that “We have provided you with Mother’s entire set of business files. You now have everything Mother has.”

L.L. Bean also complained that Mother’s attorney made numerous improper objections, improper instructions not to answer questions about communications with a lawyer who did not represent Mother in the case and whose written communications were produced in discovery, and improperly terminated the deposition before the seven-hour limit had expired.

Chief Magistrate Judge J. Kelly Arnold largely sided with L.L. Bean. The court ordered Mother to produce all electronically-stored information regarding its finances; ordered Mother to make Mr. Grabijas available in Maine for three additional hours of deposition time; and ordered Mother’s counsel not to make any objections “without asserting a recognized privilege, or seeking a protective order from the court.”  The court also awarded L.L. Bean the reasonable expenses, including attorneys’ fees, that L.L. Bean incurred in bringing its motion.

Discovery orders like this are relatively rare in Western District trademark cases. We all can be thankful for that. There just is no excuse for playing games in discovery, or for being ignorant of the important role electronic evidence now plays. The court’s order illustrates that Western District judges have little patience for parties and lawyers who don’t follow the rules. Nor should they.