Dmarcian, Inc. v. DMARC Advisor BV

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00067-MR
DMARCIAN, INC., )
)
Plaintiff, )
)
vs. ) O R D E R
)
DMARC ADVISOR BV, )
f/k/a dmarcian Europe BV, )
)
Defendant. )
________________________________ )
THIS MATTER is before the Court on the Plaintiff’s Second Motion to
Compel [Doc. 279] and the Plaintiff’s Motion Seeking Additional Time to
Depose Defendant’s Expert [Doc. 282].
I. BACKGROUND
The Pretrial Order and Case Management Plan (“the CMO”) entered
in this case originally set a discovery deadline of February 28, 2023. [Doc.
133]. The CMO specifically states that the parties may stipulate to an
extension of the discovery completion deadline so long as such extension
expires no later than 14 days prior to the trial. [Id. at 4-5]. With regard to
motions to compel discovery, the CMO states that such motions must be
filed within the discovery period or they would be deemed waived. [Id. at 10].
Case 1:21-cv-00067-MR Document 354 Filed 04/22/24 Page 1 of 6

2
As the CMO explicitly states, the terms of the CMO are subject to
modification only by the Court “and may not be modified by agreements
among the parties.” [Id. at 20].
Following the entry of the CMO, the Court on motions of the parties
extended the discovery deadline on two occasions, with the final deadline
being set as December 1, 2023. [Docs. 207, 258].
On December 1, 2023, the parties filed a Stipulation indicating their
agreement to extend the period of fact discovery in order to complete certain
fact depositions during the week of December 4, 2023 and, potentially, the
week of December 11, 2023. [Doc. 277 at 2].
On December 8, 2023, the Plaintiff filed an unopposed motion to
extend the deadline for filing “expert discovery motions.” [Doc. 278 at 1].
The Court granted the Plaintiff’s motion, giving the Plaintiff until December
15, 2023 to file motions related to expert discovery. [Text-Only Order Dec.
11, 2023].
The Plaintiff filed the present Second Motion to Compel on December
15, 2023. [Doc. 279]. In the event that the Second Motion to Compel is
granted and additional source code and design/development documents are
produced, the Plaintiff seeks to depose the Defendant’s expert, Dr.
Eslamimher, for an additional two hours regarding this new production. [Doc.
Case 1:21-cv-00067-MR Document 354 Filed 04/22/24 Page 2 of 6

3
282]. The Defendant has filed Responses opposing both of the Plaintiff’s
Motions [Docs. 286, 287], and the Plaintiff has filed Replies [Docs. 306, 307].
Accordingly, these motions are ripe for disposition.
II. STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides, in pertinent
part, as follows:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its
likely benefit. Information within this scope of
discovery need not be admissible in evidence to be
discoverable.
Fed. R. Civ. P. 26(b)(1).
Under Rule 37 of the Federal Rules of Civil Procedure, “a party may
move for an order compelling disclosure or discovery.” Fed. R. Civ. P.
37(a)(1). “[T]he party or person resisting discovery, not the party moving to
compel discovery, bears the burden of persuasion.” Kinetic Concepts, Inc.
v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010). The decision to
grant or deny a motion to compel is generally an issue within the broad
Case 1:21-cv-00067-MR Document 354 Filed 04/22/24 Page 3 of 6

4
discretion of the trial court. See Lone Star Steakhouse & Saloon, Inc. v.
Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).
III. DISCUSSION
As noted above, the deadline for the filing of motions to compel
discovery expired upon the closing of the discovery period, December 1,
2023. Although the parties agreed amongst themselves to extend the period
of fact discovery beyond December 1st, this agreement did not extend the
deadline for the filing of motions to compel. While the Court granted the
Plaintiff an extension of time to file motions to address discrete issues
regarding expert discovery, such extension did not extend the deadline for
the filing of motions to compel on issues of fact discovery.
By the present motion, the Plaintiff seeks inter alia to compel: (1) the
production of emails and other documents from Hub Harmeling and TDX; (2)
the production of any additional customer contracts; and (3) the review of Mr.
Groeneweg’s old laptop for any responsive information. [See Doc. 281]. The
Plaintiff also moves the Court to compel the Defendant to produce a fully
prepared designee for a Rule 30(b)(6) deposition and to strike certain
affirmative defenses asserted by the Defendant. [Id.]. These, however, are
not issues of “expert discovery.” These are issues of fact discovery which
should have been addressed prior to the expiration of the discovery deadline.
Case 1:21-cv-00067-MR Document 354 Filed 04/22/24 Page 4 of 6

5
Thus, to the extent that the Plaintiff moves to compel discovery as to these
or any other factual discovery issues, the Plaintiff’s motion is denied as
untimely.
The only issue addressed in the Plaintiff’s Motion to Compel which is
remotely related to “expert discovery” is the Plaintiff’s request to compel a
more complete response to Request for Production (RFP) No. 60, which
requests documents related to the development of the C# platform. [Doc.
281 at 21]. The Plaintiff appears to contend that such documents are
necessary in order to fully depose the Defendant’s expert, Dr. Eslamimher.
[See Doc. 282].
In response to the Plaintiff’s motion, the Defendant states that it has
already conducted a reasonable, good faith search for documents
responsive to the Plaintiff’s request, and that it has made those materials
available either on the source code review computer or in document
productions made to the Plaintiff. [Doc. 286 at 10]. While the Plaintiff
contends that it “has reason to doubt the production is complete” [Doc. 281
at 22], it does not explain what that reason may be. The Court will not grant
a motion to compel based on sheer speculation. Accordingly, the Plaintiff’s
motion to compel further response to RFP No. 60 is denied.
Case 1:21-cv-00067-MR Document 354 Filed 04/22/24 Page 5 of 6

6
By way of a separate motion, the Plaintiff moves for additional time to
depose the Defendant’s expert, Dr. Eslamimher, in the event that the
Plaintiff’s motion to compel is granted and additional documents are
produced. [Doc. 282]. Because the Plaintiff’s motion to compel has been
denied in its entirety, the Plaintiff’s motion for additional time to depose the
Defendant’s expert is moot.
O R D E R
IT IS, THEREFORE, ORDERED the Plaintiff’s Second Motion to
Compel [Doc. 279] is DENIED.
IT IS FURTHER ORDERED that the Plaintiff’s Motion Seeking
Additional time to Depose Defendant’s Expert [Doc. 282] is DENIED AS
MOOT.
IT IS SO ORDERED.
Signed: April 22, 2024
Case 1:21-cv-00067-MR Document 354 Filed 04/22/24 Page 6 of 6