United States District Court, W.D. Washington, Seattle
BEAUTYKO LLC; LINOI LLC; SHOP FLASH USA INC.; BEAUTYKO USA INC.; AND BENNOTI USA INC., Plaintiffs,
AMAZON FULFILLMENT SERVICES, INC., Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SANCTIONS
AND ORDERING AMENDED ERRATA
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Amazon Fulfillment
Services, Inc. (“Amazon”)'s Motion for
Sanctions. Dkt. #71.
October 18, 2016, Amazon took the deposition of Avi Sivan,
principal of Plaintiff companies. Dkt. #69
(“Declaration of Vanessa Power”) at ¶ 2.
Discovery closed on November 11, 2016. Dkt. #20. On March 23,
2017, Plaintiffs notified Amazon via letter that they had
learned of “certain inaccuracies in Mr. Sivan's
deposition testimony.” Dkt. #69-2. Plaintiffs explained
that Mr. Sivan “seeks to correct his deposition
testimony” and that an “amended errata will
follow.” Id. After mediation and months of
settlement discussions, Dkt. #69 at ¶ 3, the amended
errata was never produced. On July 18, 2017, Plaintiffs'
counsel sought leave to withdraw. Dkt. #50. On July 31, 2017,
the Court heard Amazon's telephonic Motion to Compel
production of the amended errata, and delayed ruling until
Plaintiffs acquired new counsel. See Dkt. #56.
Court held a second telephonic hearing on August 30, 2017.
Dkt. #61. Amazon summarized the situation thusly:
“…we previously had a telephonic Motion to
Compel the amended errata of Beautyko's principal Avi
Sivan, and Your Honor deferred ruling on that and gave
Plaintiffs an opportunity upon securing new counsel to either
have that motion amended or to file a response.” Dkt.
#69-3 (transcript of hearing) at 2:6-11. Plaintiffs' new
counsel responded with “I do think that in terms of an
actual response to the Motion to Compel, we are comfortable
saying that there will be some sort of correction or
supplementation made to Mr. Sivan's deposition testimony.
And so to the extent that the request was for an order from
you directing that to occur, that will happen.”
Id. at 5:7-12. The Court then stated that it would
give Plaintiffs' counsel “until September
6th… to decide what you're going to do in this and
then how you're going to respond to the motion that's
currently out there…. if for whatever reason we miss
that deadline, the Court will seriously considered [sic]
imposing the types of sanctions as indicated by [Amazon's
counsel].” Id. at 6:17-7:2.
September 6, 2017, Plaintiffs produced to Amazon a
declaration signed by Mr. Sivan entitled “Deposition of
Avi Sivan Errata and Supplement.” Dkt. #69-1. The
declaration does not serve the technical purpose of an errata
in that it does not strike or specifically correct testimony
from a deposition line-by-line. Instead, the declaration is
made to “clarify the record” and
“supplement deposition testimony with respect to
certain questions.” Id. at ¶3.
now argues that this declaration is insufficient and that
Plaintiffs should be sanctioned for violation of a court
order. See Dkt. #68. The Court agrees that
Plaintiffs' supplemental declaration is not an amended
errata. Amazon was clearly seeking an amended errata in its
telephonic motion, and Plaintiffs' declaration strikes
the Court as less than sufficient to satisfy Amazon's
requested relief. As it stands, Amazon was prejudiced by
Plaintiffs' promise to produce an amended errata that has
yet to materialize. However, the Court cannot find that
Plaintiffs have violated a court order. According to the
transcript, the Court was satisfied with Plaintiffs'
response that they would provide “some sort of
correction or supplementation made to Mr. Sivan's
deposition testimony.” Amazon did not object to this
phrasing. The Court ended the telephonic proceedings by
ordering Plaintiffs to respond with a correction or
supplementation by a certain deadline. The Court stated that
if Plaintiffs completely failed to respond it would consider
sanctions. Plaintiffs did not completely fail to respond, and
in fact produced essentially what they promised.
all of the above, the Court will deny this Motion and instead
order Plaintiffs to produce, no later than Monday, October 6,
2017, an amended errata correcting Mr. Sivan's deposition
testimony line-by-line. This amended errata must conform to
the requirements of Rule 30(e).
Court has reached this conclusion with minimal reliance on
the parties' extensive briefing. Considering especially
the Response and Reply briefs, the Court is dismayed that
this small discovery issue, allowed well after the deadline
for discovery motions, has grown into both a request for a
discovery “do-over” and an attempted trial on the
merits of this case.
suggestion that Mr. Sivan's deposition be reopened now,
nearly a year after the close of discovery, is unreasonable.
See Dkt. #77 at 5. Amazon's eager agreement does
not create good cause. See Dkt. #82 at 4-5. Mr.
Sivan can explain any discrepancies in his prior testimony on
the witness stand, and Amazon will have plenty of material
for cross-examination. The Court will not allow this case to
move backwards, and any prejudice to the parties caused by
the passing of court deadlines is due solely to the actions
and inactions of the parties and their counsel.
parties also improperly delve into the merits of this
case. Plaintiffs interpret this Motion as
“a misplaced attempt to sidestep what Amazon cannot
prove at trial: the existence of any contractual terms
actually breached by the Plaintiff entities…”
Dkt. #77 at 1. Plaintiffs then attempt to convince the Court
of the nonexistence of such contractual terms by
citing to interrogatory responses and attaching over 1,
000 pages of documents under seal. Id. at 6-7;
Dkt. #81. Not only do Plaintiffs fail to separate these
documents into individual exhibits or cite to them by page
number, Plaintiffs do not cite to these documents at
all in briefing. This strikes the Court as litigation in
bad faith. Amazon takes the bait, e.g. by arguing
that it “defies logic and basic principles of contract
law” for Plaintiffs to “take the position that
unless the Contract expressly states that a ‘new
item' must be a ‘new item, ' it is permissible
for Beautyko to sell Amazon duplicate items but call them all
unique.” Dkt. #82 at 3-4. The parties can save these
merits arguments for the jury. Because the Court did not and
will not rely on the 1, 000 plus pages of sealed documents,
the Court need not rule on the pending Motion to Seal (Dkt.
#79) and will deny it as moot, and strikes the sealed
documents from the record.
reviewed the relevant briefing and the remainder of the
record, the Court hereby finds and ORDERS that:
Plaintiffs shall produce to Amazon an amended errata of Mr.
Sivan's deposition testimony, as stated above, no
later than 5:00 p.m. on Monday, October 2, 2017.
Plaintiffs' sealed documents (Dkt. #81) are STRICKEN ...