E.I. DuPont De Nemours & Co. v. Kolon Industries, Inc.

286 F.R.D. 288, 2012 WL 4759136, 2012 U.S. Dist. LEXIS 144735
District Court, E.D. Virginia·Decided October 5, 2012·No. Civil Action No. 3:09cv058·Published·Cited by 11 cases

Opinion

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on the RENEWED MOTION TO COMPEL ASSET-RELATED DISCOVERY (Docket No. 2011) (“MOTION TO COMPEL II”) filed by E.I. DuPont de Nemours and Company (“DuPont”). For the reasons below, the motion will be granted in part and denied in part.

BACKGROUND

1. Proceedings in the Eastern District of Virginia

Previously in this matter, DuPont sought certain information from Defendant Kolon [290]*290Industries, Inc. (“Kolon”) in aid of execution of the Judgment entered against Kolon and on behalf of DuPont.1 Kolon objected to providing much of the requested discovery. The parties were instructed to attempt to resolve their differences and, on February 10, 2012, the Court directed the parties to participate in another meet and confer proceeding to attempt to resolve the remaining disputes over the information sought by DuPont in its MOTION TO COMPEL ASSET-RELATED DISCOVERY (Docket Nos. 1718 & 1722) (“MOTION TO COMPEL I”) and thereafter to file a joint status report that listed the remaining areas of disagreement that required Court intervention, if any. In compliance with the February 10, 2012 Order, the parties filed a Joint Status Report (Docket Nos. 1952 & 1956).

In the Joint Status Report, the parties reported that certain matters did not require Court intervention, and MOTION TO COMPEL I was thereafter denied as moot as to those matters. However, the parties also reported that certain other matters required Court intervention. Those matters, referred to by the short-hand notations used by the parties, were: (1) Customer Information; (2) Real Property in the United States; (3) Agreements between Kolon Industries and its Parents and Subsidiaries/Affiliates; and (4) Information regarding Kolon Industries Business Teams. By Memorandum Opinion and Order issued on May 11, 2012 (Docket Nos. 2005 & 2006), MOTION TO COMPEL I was granted in part and denied in part as to those matters.

The Court granted MOTION TO COMPEL I respecting Customer Information to the extent that the discovery sought “the identity of a customer ... when Kolon holds a receivable from that customer or the customer otherwise holds Kolon assets.” (Mem. Op., May 11, 2012, at 6.) The Court denied MOTION TO COMPEL I respecting additional Customer Information that did not fit within that description, finding that such additional Customer Information was “not relevant to aiding execution of the judgment.” (Id.)

The Court also granted MOTION TO COMPEL I respecting Agreements between Kolon Industries and its Parents and Subsidiaries/Affiliates, specifically granting Request for Production No. 6, which requested:

All documents, including, without limitation, stock certificates, shareholder agreements, partnership agreements, joint venture agreements, or other evidence of ownership, relating to any ownership interest Kolon holds or has held in any corporation, limited liability company, partnership, limited partnership, joint venture, association or other business entity during the relevant time period.

(Mem. Op., May 11, 2012, at 8-9.) The Court denied MOTION TO COMPEL I “as to contracts and/or agreements that are not within Request for Production No. 6.” (Id. at 9.)

Both topics are once again before the Court in MOTION TO COMPEL II. DuPont contends that, since the Court’s May 11, 2012 Order, “Kolon has either refused to produce the information, or has engaged in a selected production.” (DuPont’s Mem. Supp. at 2.) Kolon contends, on the other hand, that it has complied with its post-verdict discovery obligations and that DuPont has received “more than enough information to allow it to go forward with efforts to collect the money judgment entered against Kolon.” (Kolon’s Mem. Opp’n at 1.)

2. Proceedings in the Southern District of New York

DuPont has also been trying to enforce the judgment against Kolon in the Southern District of New York (“the SDNY Proceeding”).2 [291]*291DuPont contends that Kolon’s statements and positions in the SDNY Proceeding are relevant to proceedings here because, DuPont says, Kolon has demonstrated in the SDNY Proceeding “that it can and does possess and have control over relevant information about the entire Kolon network of affiliated entities.” (DuPont’s Mem. Supp. at 8.) To prove that point, DuPont lists many statements made by Kolon in court and in two declarations in support of Kolon’s “Opposition to DuPont’s Turnover Application” filed in the SDNY. (DuPont’s Mem. Supp. at 9-10 & n. 5.) These statements include:

• As a preliminary matter, Kolon Corporation is merely a holding company for its various subsidiaries.
• Kolon Corporation holds investment assets.
• Kolon Corporation does not “do business” in the traditional sense that it does not itself buy and sell products and has no relationship with New York whatsoever, including no agency relationship with KUSA [Kolon USA] and [Kolon] I’Networks.
• While, as a holding company, Kolon Corporation owns approximately 57% of Kolon Global, this is not enough to show agency in the absence of any other evidence whatsoever that Kolon Global is the agent of the holding company.
• Kolon Industries, Kolon Global, and Kolon I’Networks Corp. (before it was acquired by Kolon Global) are all sister companies (only related by virtue of having a common parent holding company) and do not interfere with or have control over one another’s businesses.
• Kolon Industries and Kolon Corporation do not currently and have never had an agency relationship with Kolon I’Networks Corp. or Kolon Global.
• Kolon Industries is the parent company of KUSA but there is no agency relationship.
• Kolon Industries does not have control over KUSA’s marketing or operational policies.
• KUSA has an arm’s-length business relationship with Kolon Industries whereby if KUSA experiences a shortage in inventory, KUSA sends a purchase order to Kolon Industries to purchase products.

(DuPont’s Mem. Supp. at 9-11, & Ex. 12.) DuPont points out that, notwithstanding statements made in this case that it lacks control of Kolon USA, Kolon was able to make certain affirmative statements about Kolon USA including that “KUSA is financially solvent.” (DuPont’s Mem. Supp. at 11.)

DISCUSSION

1. Legal Standard

As noted previously, a judgment creditor may obtain discovery from any person, including the judgment debtor, as provided in the Federal Rules of Civil Procedure or in applicable state procedures, and the Court has the authority to compel the production of post-verdict information “[i]n aid of the judgment or execution” of that judgment. Fed. R.Civ.P. 69(a)(2) (cited in Mem. Op., May 11, 2012, at 2.)

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E.I. DuPont De Nemours & Co. v. Kolon Industries, Inc., 286 F.R.D. 288, 2012 WL 4759136, 2012 U.S. Dist. LEXIS 144735 (E.D. Va. 2012).

286 F.R.D. 288 (E.I. DuPont De Nemours & Co. v. Kolon Industries, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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