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4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 PACIFIC LANDSCAPE MANAGEMENT, CASE NO. 2:23-cv-01005-JHC 8 INC., a Washington corporation, ORDER 9 Plaintiff, 10 v. 11 PACIFIC LANDSCAPE MANAGEMENT, LLC, an Oregon limited liability company, 12
Defendant. 13
14 I 15 INTRODUCTION 16 This matter comes before the Court on Plaintiff’s Motion to Compel and Defendant’s 17 Motion to Compel. Dkt. ## 67, 69. The Court has reviewed the materials filed in support of and 18 in opposition to the motions, the rest of the file, and the governing law. For the reasons 19 discussed below, the Court DENIES Defendant’s motion and GRANTS in part and DENIES in 20 part Plaintiff’s motion. 21
24 1 II 2 DISCUSSION A. Legal Standards 3 Rule 26 permits discovery into “nonprivileged matter that is relevant to any party’s claim 4 or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Information 5 need not be admissible into evidence to be discoverable. Id. In this context, relevance “is 6 defined very broadly.” Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir. 1998). And 7 district courts “have broad discretion in determining relevancy for discovery purposes.” 8 Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). 9 “A party seeking discovery may move for an order compelling an answer, designation, 10 production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). “[A]n evasive or incomplete disclosure, 11 answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 12 37(a)(4). The party that seeks discovery bears the burden of establishing that it requests relevant 13 information. Fed. R. Civ. P. 26(b)(1). Whereas the party resisting discovery must show 14 “discovery should not be allowed, and has the burden of clarifying, explaining, and supporting 15 its objections.” New Flyer Indus. Canada ULC v. Rugby Aviation, LLC, 2019 WL 2491901, at 16 *3 (W.D. Wash. June 14, 2019) (quoting Brown v. Warner, 2015 WL 630926, at *1 (W.D. 17 Wash. Feb. 12, 2015)). 18 B. Defendant’s Motion to Compel1 19 1. Interrogatory No. 5 20 Defendant’s Interrogatory No. 5 asks Plaintiff to “[s]tate with particularity all facts upon 21 which you base your allegations in Paragraph 18 of the Complaint.” Dkt. # 68-2 at 22. 22 23
1 Defendant also initially sought to compel documents responsive to Requests for Production 24 (RFPs) Nos. 7, 8, 19A, and 20A, but later withdrew these requests. Dkt. ## 67 at , 76 at 5-6. 1 Paragraph 18 of the Complaint alleges, “For approximately 20 years, [Defendant] operated in 2 Oregon and Clark County Washington, with full knowledge that [Plaintiff] had the prior – and, 3 therefore, superior – right to use [Plaintiff’s] Trademarks in Washington.” Dkt. # 1 at 5.
4 Plaintiff answered this interrogatory by describing a cease-and-desist letter sent to Defendant that 5 detailed the basis of its “superior trademark rights.” Dkt. # 68-2 at 23. Plaintiff also said the 6 parties entered negotiations, “which culminated in an agreement where the parties agreed 7 Defendant could operate in the Vancouver, Washington area under the name Pacific Landscape 8 Management, but would not compete beyond that region.” Id. 9 Defendant argues this answer is false and must be supplemented under Rule 26(e)(1) 10 because it contradicts Plaintiff’s position that Plaintiff does not have trademark rights in 11 southwest Washington. Dkt. # 67 at 7. Defendant also says this response “would give the jury 12 the false and mistaken belief that Plaintiff has ‘superior trademark rights’ in Southwest
13 Washington even though Plaintiff has explicitly rejected that position for the purpose of 14 salvaging its trademark infringement claims.” Id. at 7. Plaintiff counters that it has clarified its 15 common law trademark and trade name rights are limited to the Puget Sound region. Dkt. # 72 16 at 3, 8. But the answer does not mention the scope of Plaintiff’s rights under Washington or 17 federal law. Id. at 3. And Plaintiff adds that its response never included the qualifier “in 18 southwest Washington.” Id. So, according to Plaintiff, any contradiction is “entirely fabricated.” 19 Id. 20 Under Rule 26(e)(1), a party must supplement its discovery response “in a timely manner 21 if the party learns that in some material respect the disclosure or response is incomplete or 22 incorrect, and if the additional or corrective information has not otherwise been made known to
23 the other parties during the discovery process or in writing[.]” Fed. R. Civ. P. 26(e)(1) 24 (emphasis added). Defendant does not address the second part of this rule. In fact, Defendant 1 points to Plaintiff’s written materials to argue the response to this Interrogatory is contradictory. 2 Dkt. # 67 at 7. Thus, Rule 26(e)(1) does not apply because the additional information at issue 3 has already been made known to Defendant in writing. Defendant does not identify any other
4 rule that would require Plaintiff to provide more information in response to this Interrogatory. 5 So the Court will not compel Plaintiff to supplement its response to Interrogatory No. 5. 6 2. Interrogatory No. 6 7 Defendant’s Interrogatory No. 6 asks Plaintiff to “describe in detail each and every 8 incident of confusion that has occurred to consumers as a result of [Defendant’s] use of its name 9 and how you are sure it does not involve a different company operating with the terms or any 10 variation of ‘Pacific’ and ‘landscape.’” Dkt. # 68-2 at 23. Plaintiff’s initial answer provided 11 Defendant with 15 instances “where clients, vendors, providers, and other entities were confused 12 by Defendant’s misconduct.” Id. Because “[n]ew instances of confusion continue to occur each
13 week,” Plaintiff has supplemented its initial answer twice and has now provided Defendant with 14 188 instances of confusion. Id. at 23–48; Dkt. # 72 at 4. 15 Defendant argues that Plaintiff’s response is incomplete because it fails to address the 16 basis for Plaintiff’s knowledge that each of these instances of confusion is attributable to 17 Defendant. Dkt. # 67 at 8. Defendant further contends that it needs this information because 18 “there are so many companies operating in the Puget Sound area with names that include the 19 terms ‘Pacific’ and some form of ‘Landscape.’” Dkt. # 67 at 8. But Plaintiff says that is has 20 produced records concurrent with its responses, and these records speak for themselves. Dkt. # 21 72 at 9. 22 Plaintiff has provided records showing the instances of confusion. Dkt. # 68-2 at 23–48.
23 A review of the response also shows that, for almost all these instances, Plaintiff has explicitly 24 connected the confused party to Defendant. Id. To require Plaintiff to then explain how it is sure 1 the confusion did not arise from some other, third similarly named company would seek 2 duplicative information, be disproportionate to the needs of the case, and be unlikely to lead to 3 the discovery of admissible evidence. Defendant says it needs this information because “there
4 are so many companies operating in the Puget Sound area with names that include the terms 5 ‘Pacific’ and some form of ‘Landscape.’” Dkt. # 67 at 8 (emphasis added).
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4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 PACIFIC LANDSCAPE MANAGEMENT, CASE NO. 2:23-cv-01005-JHC 8 INC., a Washington corporation, ORDER 9 Plaintiff, 10 v. 11 PACIFIC LANDSCAPE MANAGEMENT, LLC, an Oregon limited liability company, 12
Defendant. 13
14 I 15 INTRODUCTION 16 This matter comes before the Court on Plaintiff’s Motion to Compel and Defendant’s 17 Motion to Compel. Dkt. ## 67, 69. The Court has reviewed the materials filed in support of and 18 in opposition to the motions, the rest of the file, and the governing law. For the reasons 19 discussed below, the Court DENIES Defendant’s motion and GRANTS in part and DENIES in 20 part Plaintiff’s motion. 21
24 1 II 2 DISCUSSION A. Legal Standards 3 Rule 26 permits discovery into “nonprivileged matter that is relevant to any party’s claim 4 or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Information 5 need not be admissible into evidence to be discoverable. Id. In this context, relevance “is 6 defined very broadly.” Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir. 1998). And 7 district courts “have broad discretion in determining relevancy for discovery purposes.” 8 Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). 9 “A party seeking discovery may move for an order compelling an answer, designation, 10 production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). “[A]n evasive or incomplete disclosure, 11 answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 12 37(a)(4). The party that seeks discovery bears the burden of establishing that it requests relevant 13 information. Fed. R. Civ. P. 26(b)(1). Whereas the party resisting discovery must show 14 “discovery should not be allowed, and has the burden of clarifying, explaining, and supporting 15 its objections.” New Flyer Indus. Canada ULC v. Rugby Aviation, LLC, 2019 WL 2491901, at 16 *3 (W.D. Wash. June 14, 2019) (quoting Brown v. Warner, 2015 WL 630926, at *1 (W.D. 17 Wash. Feb. 12, 2015)). 18 B. Defendant’s Motion to Compel1 19 1. Interrogatory No. 5 20 Defendant’s Interrogatory No. 5 asks Plaintiff to “[s]tate with particularity all facts upon 21 which you base your allegations in Paragraph 18 of the Complaint.” Dkt. # 68-2 at 22. 22 23
1 Defendant also initially sought to compel documents responsive to Requests for Production 24 (RFPs) Nos. 7, 8, 19A, and 20A, but later withdrew these requests. Dkt. ## 67 at , 76 at 5-6. 1 Paragraph 18 of the Complaint alleges, “For approximately 20 years, [Defendant] operated in 2 Oregon and Clark County Washington, with full knowledge that [Plaintiff] had the prior – and, 3 therefore, superior – right to use [Plaintiff’s] Trademarks in Washington.” Dkt. # 1 at 5.
4 Plaintiff answered this interrogatory by describing a cease-and-desist letter sent to Defendant that 5 detailed the basis of its “superior trademark rights.” Dkt. # 68-2 at 23. Plaintiff also said the 6 parties entered negotiations, “which culminated in an agreement where the parties agreed 7 Defendant could operate in the Vancouver, Washington area under the name Pacific Landscape 8 Management, but would not compete beyond that region.” Id. 9 Defendant argues this answer is false and must be supplemented under Rule 26(e)(1) 10 because it contradicts Plaintiff’s position that Plaintiff does not have trademark rights in 11 southwest Washington. Dkt. # 67 at 7. Defendant also says this response “would give the jury 12 the false and mistaken belief that Plaintiff has ‘superior trademark rights’ in Southwest
13 Washington even though Plaintiff has explicitly rejected that position for the purpose of 14 salvaging its trademark infringement claims.” Id. at 7. Plaintiff counters that it has clarified its 15 common law trademark and trade name rights are limited to the Puget Sound region. Dkt. # 72 16 at 3, 8. But the answer does not mention the scope of Plaintiff’s rights under Washington or 17 federal law. Id. at 3. And Plaintiff adds that its response never included the qualifier “in 18 southwest Washington.” Id. So, according to Plaintiff, any contradiction is “entirely fabricated.” 19 Id. 20 Under Rule 26(e)(1), a party must supplement its discovery response “in a timely manner 21 if the party learns that in some material respect the disclosure or response is incomplete or 22 incorrect, and if the additional or corrective information has not otherwise been made known to
23 the other parties during the discovery process or in writing[.]” Fed. R. Civ. P. 26(e)(1) 24 (emphasis added). Defendant does not address the second part of this rule. In fact, Defendant 1 points to Plaintiff’s written materials to argue the response to this Interrogatory is contradictory. 2 Dkt. # 67 at 7. Thus, Rule 26(e)(1) does not apply because the additional information at issue 3 has already been made known to Defendant in writing. Defendant does not identify any other
4 rule that would require Plaintiff to provide more information in response to this Interrogatory. 5 So the Court will not compel Plaintiff to supplement its response to Interrogatory No. 5. 6 2. Interrogatory No. 6 7 Defendant’s Interrogatory No. 6 asks Plaintiff to “describe in detail each and every 8 incident of confusion that has occurred to consumers as a result of [Defendant’s] use of its name 9 and how you are sure it does not involve a different company operating with the terms or any 10 variation of ‘Pacific’ and ‘landscape.’” Dkt. # 68-2 at 23. Plaintiff’s initial answer provided 11 Defendant with 15 instances “where clients, vendors, providers, and other entities were confused 12 by Defendant’s misconduct.” Id. Because “[n]ew instances of confusion continue to occur each
13 week,” Plaintiff has supplemented its initial answer twice and has now provided Defendant with 14 188 instances of confusion. Id. at 23–48; Dkt. # 72 at 4. 15 Defendant argues that Plaintiff’s response is incomplete because it fails to address the 16 basis for Plaintiff’s knowledge that each of these instances of confusion is attributable to 17 Defendant. Dkt. # 67 at 8. Defendant further contends that it needs this information because 18 “there are so many companies operating in the Puget Sound area with names that include the 19 terms ‘Pacific’ and some form of ‘Landscape.’” Dkt. # 67 at 8. But Plaintiff says that is has 20 produced records concurrent with its responses, and these records speak for themselves. Dkt. # 21 72 at 9. 22 Plaintiff has provided records showing the instances of confusion. Dkt. # 68-2 at 23–48.
23 A review of the response also shows that, for almost all these instances, Plaintiff has explicitly 24 connected the confused party to Defendant. Id. To require Plaintiff to then explain how it is sure 1 the confusion did not arise from some other, third similarly named company would seek 2 duplicative information, be disproportionate to the needs of the case, and be unlikely to lead to 3 the discovery of admissible evidence. Defendant says it needs this information because “there
4 are so many companies operating in the Puget Sound area with names that include the terms 5 ‘Pacific’ and some form of ‘Landscape.’” Dkt. # 67 at 8 (emphasis added). But the records 6 provided by Defendant show there are only two other companies in Washington State with these 7 terms included in its name, Pacific Landscape Maintenance Inc. and Pacific Northwest 8 Landscape Construction & Maintenance LLC.2 Dkt. # 53-1. Of these, only Pacific Northwest 9 Landscape Construction & Maintenance LLC has its principal office address in the Puget Sound 10 area. Id. at 3, 5. Thus, the Court denies Defendant’s request. 11 C. Plaintiff’s Motion to Compel3 12 1. Interrogatory No. 15 and RFP No. 21 13 Plaintiff’s Interrogatory No. 15 asks Defendant to “describe in detail the promotion, 14 marketing, and advertising” of its services in the Puget Sound region. Dkt. # 70-2 at 24. RFP 15 No. 21 seeks all records related to Interrogatory No. 15. Id. at 25. 16 One of Defendant’s employees, Thomas DiMeco, testified that Defendant does not 17 conduct “promotion, marketing, and advertising” activities. Id. at 5. He said that, instead, 18 Defendant generates business proposals, lunch and learn presentations, and other tangible items 19 to “educate” prospective clients about Defendant’s business. Id. For this reason, Defendant 20 argues that it is entitled withhold these materials. Dkt. # 74 at 3–7. In support of this argument, 21 22
2 Defendant identifies one other company, Pacific Landscaping & Maintenance LLC, but this 23 entity has been “administratively dissolved.” Dkt. # 53-1 at 4. 3 Plaintiff also initially sought to compel the production of documents responsive to Interrogatory 24 Nos. 20 and 21 and RFP Nos. 25 and 26, but later withdrew these requests. Dkt. ## 69 at 8, 77 at 6. 1 Defendant says that these materials do not fall within the Ninth Circuit’s definition of 2 “advertising” or “promotion” under the Lanham Act. Id. at 4. 3 A responding party must apply reason and common sense to assign ordinary meaning to
4 the terms and phrases used in discovery requests. See, e.g., Cache La Poudre Feeds, LLC v. 5 Land O’Lakes, Inc., 244 F.R.D. 614, 618 (D. Colo. 2007) (“Defendants had an obligation to 6 construe Plaintiff's discovery requests in a reasonable manner.”); Pulsecard, Inc. v. Discover 7 Card Servs., Inc., 168 F.R.D. 295, 310 (D. Kan. 1996) (“Respondents should exercise reason and 8 common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories.”). 9 The materials at issue fall within the scope of Plaintiff’s discovery requests. Defendant cannot 10 simply shoehorn the Ninth Circuit’s definition of “advertising” and “promotion” under the 11 Lanham Act into Plaintiff’s discovery requests to avoid its discovery obligations. And, even so, 12 the Lanham Act uses different language than Plaintiff’s discovery requests. See 15 U.S.C. §
13 1125(a)(1)(B) (using “commercial advertising or promotion” rather than “promotion, marketing, 14 and advertising”). Defendant similarly cannot say these materials are “educational” when, as it 15 describes them, they are intended to promote, sell, and distribute its services. Dkt. # 74 at 3–7; 16 see Merriam-Webster’s Dictionary (11th ed. 2025), https://www.merriam- 17 webster.com/dictionary/marketing (defining “marketing ” as “the process or technique of 18 promoting, selling, and distributing a product or service”). In addition, it is the essence of 19 discovery that the requesting party does not know all the information that is within the 20 responding party’s control. So the fact Plaintiff did not specifically request the business 21 proposals, lunch and learn presentations, and other tangible items does not relieve Defendant of 22 its obligations to produce these materials either.
23 Accordingly, Defendant must supplement its responses to Interrogatory No. 15 and RFP 24 No. 21. Defendant maintains it has produced representative samples of the business proposals 1 and all the lunch and learn presentations it was able to locate after a reasonable search, so, to the 2 extent Defendant has produced materials consistent with this opinion and RFP No. 21, no 3 reproduction of these materials is necessary. See Dkt. # 74 at 4–6. The parties should also find a
4 mutually agreeable date to inspect the other tangible items that are not readily susceptible to 5 copying, or Defendant can produce these items to Plaintiff in digital form. See id. at 7 6 (Defendant “remains willing to make those [tangible] materials available for inspection at any 7 mutually agreeable date.”); Dkt. # 77 at 5 (suggesting these items can be produced digitally). 8 2. Interrogatory No. 18 and RFP No. 28 9 Plaintiff’s Interrogatory No. 18 asks Defendant to: 10 Identify with particularity every instance You know of in which there was actual confusion between PLM-OR’s Mark and PLM-WA’s Mark, including all facts 11 relating to each such incident, including an identification of all persons and documents involved. This includes without limitation all instances of customer or 12 vendor misdirected phone calls, letters, payments, invoices, documents, employee or customer information, or emails. 13 Dkt. # 70-2 at 27. RFP No. 28 seeks “all Records evidencing or reflecting the factual basis, if 14 any, for denying the allegations contained in Paragraph 48 of [Plaintiff]’s Complaint, which 15 states: ‘[Defendant]’s use of its name and trademarks has caused actual customer confusion.’” 16 Defendant initially responded by saying it “is not aware of any instances of customer 17 confusion between [Defendant] and [Plaintiff]’s Marks.” Dkt. # 70-2 at 27. Defendant’s 18 employee testified that there is not “confusion”; instead, third parties just make “some mistakes.” 19 Dkt. # 69 at 7. Defendant later added that “actual confusion” is a legal term of art, so Plaintiff 20 “is asking the Court to order [Defendant] to admit, under oath and against its will, that simple 21 mistakes constitute trademark-relevant ‘actual confusion.’” Dkt. # 74 at 8. In response, Plaintiff 22 says this answer is inadequate because it did not define “actual confusion” as a legal term of art 23 in its discovery requests. Dkt. # 69 at 7. And Plaintiff suggests it is improbable Defendant has 24 1 not encountered any customer confusion, since it has recorded around 180 such instances. Id. at 2 6. 3 Defendant’s arguments miss the mark. Although “actual confusion” can be used as a
4 legal term of art, Plaintiff did not define these words in this way in its discovery requests. Dkt. # 5 70-2 at 27. Again, Defendant cannot avoid its discovery obligations by applying a legal 6 definition to a term when the discovery request did not define the term in that way. See Section 7 II.C.1, supra. What is more, although Defendant’s employee says, “there have been some 8 mistakes made by vendors” and he “would not characterize it as confusion,” he later concedes 9 this is, in fact, confusion: 10 Q. What other categories of mistakes are you referring to? A. I would say that from time to time there are instances where transactions that are 11 being made by our employees get identified as transactions on other vendors, not just [Plaintiff], but others. It happens. There’s confusion. 12 Dkt. # 70-3 at 12 (224:6–12). So Defendant cannot now say it is “not aware of any instance of 13 customer confusion between [Defendant] and [Plaintiff]’s Marks.” Dkt. # 70-2 at 27. 14 Defendant must supplement its responses to Interrogatory No. 18 and RFP No. 28. 15 3. Attorneys’ Eyes-Only Designation 16 The parties have entered a stipulated protective order to protect certain confidential 17 materials produced in discovery. Dkt. # 31. Under this order, six types of records can be 18 designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Id. at 2–3. 19 Materials designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” cannot be 20 disclosed to “the officers, directors, and employees (including in house counsel) of the receiving 21 party[.]” Id. at 4. 22 Plaintiff contends Defendant has overused this designation. Dkt. # 69 at 12. And 23 Plaintiff says it is imperative that Defendant produces un-designated versions of documents 24 1 bearing this designation so that Plaintiff can use them at trial. Id. But Defendant argues Plaintiff 2 has raised this issue only as to deposition exhibits. Dkt. # 74 at 11. And Defendant says it “has 3 no way of knowing exactly what documents Plaintiff intends to use at trial or for what purpose.”
4 Id. 5 Plaintiff has not provided the Court any of the documents it maintains are improperly 6 labeled HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. Without understanding 7 the contents of these materials, the Court cannot conclude they have been improperly designated. 8 Likewise, the protective order says, “Any use of Protected Material at trial shall be governed by 9 a separate agreement or order.” Dkt. # 31 at 3. Thus, Plaintiff’s concern about the use of these 10 materials at trial is speculative. 11 4. Reopen Rule 30(b)(6) Deposition 12 The Court “must allow additional time consistent with Rule 26(b)(1) and (2) if needed to
13 fairly examine the deponent or if the deponent, another person, or any other circumstance 14 impedes or delays the examination.” Fed. R. Civ. P. 30(d)(1). But “[r]epeated depositions are 15 generally disfavored, and the party seeking a court order to extend the examination, or otherwise 16 alter the limitations, is expected to show good cause to justify such an order.” PUMA SE v. 17 Brooks Sports, Inc., 2024 WL 4476767, at *6 (W.D. Wash. Oct. 11, 2024) (internal citations and 18 quotation marks omitted). 19 Plaintiff’s motion makes the conclusory statement, “Upon completing all production 20 required under this order, Defendant must make Mr. Demico available at Defendant’s expense 21 for Plaintiff to continue and complete the Defendant’s deposition under FRCP 30(b)(6).” Dkt. # 22 69 at 13. But the motion offers no citations to the record or case authority to support this
23 statement, nor does it argue there is good cause to conduct another deposition. See generally 24 Dkt. # 69. In fact, the motion does not mention the need to conduct another deposition of Mr. 1 Demico outside this single sentence. /d. Thus, this argument is waived because “[a]rguments 2 || made in passing and not supported by citations to the record or to case authority are generally 3 deemed waived.” United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (citing United 4 || States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006)). 5
7 As aresult, the Court DENIES Defendant’s motion. Dkt. #67. The Court GRANTS in
g || Part and DENIES in part Plaintiffs motion. Dkt. #69. Defendant must supplement its
9 discovery responses in accordance with this order within 14 days of its entry. 10 Dated this 9th day of July, 2025.
" Cok. 4, Chun 12 John H. Chun United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24