THE PENNSYLVANIA STATE UNIVERSITY, Plaintiff, v. PAUL L. PARSHALL, d/b/a SPORTS BEER BREWING COMPANY, Defendant Civil No. 4:19-CV-01299 United States District Court, M.D. Pennsylvania Filed January 20, 2021 Counsel Allison L. Ebeck, McGuireWoods LLP, Pittsburgh, PA, Lucy J. Wheatley, Pro Hac Vice, Claire H. Eller, McGuireWoods LLP, Richmond, VA, for Plaintiff. Jason H. Beehler, Kegler Brown Hill & Ritter, Columbus, OH, for Defendant. Wilson, Jennifer P., United States District Judge ORDER *1 Before the court is Plaintiff The Pennsylvania State University's (“Penn State”) motion for Rule 37(b) sanctions. (Doc. 58.) For the reasons that follow, the court will grant the motion in part and issue sanctions as described herein. BACKGROUND On March 20, 2020, following the court's procedures for addressing discovery disputes, Penn State submitted a letter outlining deficiencies in Parshall's responses to Penn State's interrogatories and requests for production. (Doc. 36.) Penn State argued that even after giving Parshall a chance to cure the defects, Parshall's responses to Penn State's discovery were still deficient. (Id.) On March 27, 2020, the court ordered that Parshall provide full and complete responses to Penn State's discovery as requested in Penn State's January 30, 2020 letter within 14 days. (Doc. 37.) The court granted Penn State leave to file a motion to compel if Parshall failed to provide appropriate responses in accordance with the court's order. (Id.) On April 10, 2020, Parshall filed a mostly illegible, two-page handwritten response titled “Answer to Exhibits C & D.” (Doc. 38.) On April 13, 2020, Penn State filed a motion to compel discovery, supporting brief, and exhibits arguing that Parshall's discovery responses were still grossly deficient and unresponsive. (Docs. 39–40.) Penn State also requested that Parshall be ordered to pay the attorneys' fees and costs incurred in filing the motion and the previous discovery dispute letter in accordance with Federal Rule of Civil Procedure 37(a)(5). (Doc. 40, p. 20.)[1] On April 21, 2020, Parshall filed a one-page, unreadable handwritten response titled “Answer to Plaintiff Questions,” where he provided one sentence answers to five discovery requests without producing any documents. (Doc. 43.) On May 1, 2020, Penn State timely filed a reply brief in support of its motion to compel asserting that Parshall's April 21, 2020 response neither addressed Penn State's motion to compel, nor adequately responded to its outstanding discovery requests. (Doc. 45.) On May 4, 2020, the court granted Penn State's motion to compel requiring Parshall to provide full and complete responses to Penn State's First Set of Requests for Interrogatories, Numbers 2, 3, 5, 7, 9–11, and 14, and Penn State's First Set of Requests for Production, as well as provide documents responsive thereto. (Doc. 46.) The court further awarded attorneys' fees and costs incurred in bringing the motion to compel and related proceedings. (Id. at 4.) The court ordered Penn State to provide an itemized bill for fees and costs by May 18, 2020. (Id.) Penn State submitted fees and costs on May 15, 2020, in accordance with the court's order. (Doc. 52.) On May 20, 2020, the court sanctioned Parshall in the amount of $9,493.00, and gave Parshall three months to pay the amount. (Doc. 54.) On June 18, 2020, Penn State filed the motion for sanctions before the court along with a brief in support thereof. (Docs. 58, 59.) Parshall filed a brief in opposition on June 29, 2020, that was handwritten and largely illegible. (Doc. 62.) The court issued an order accepting the filing but granted Parshall leave to refile his brief in opposition as a typed document so that the court could read and appropriately understand his arguments. (Doc. 64.) Parshall did not do so and Penn State filed a reply brief on July 20, 220. (Doc. 71.) *2 Meanwhile, on June 25, 2020, Parshall filed a motion for reconsideration of the court's sanctions order. (Doc. 60.) Although untimely, the court ruled on the motion on the merits, denying the motion. (Doc. 61.) On July 7, 2020, Parshall filed a notice of an appeal from the court's sanctions order. (Doc. 66.) While awaiting the Third Circuit's ruling, Penn State sought clarity with the court regarding how this case would proceed pending the Third Circuit's decision. (Doc. 72.) On August 17, 2020, the court provided the requested clarity to the parties, ruling that this matter would proceed on the merits while the Third Circuit rendered its decision on the court's sanctions order. (Doc. 75.) However, the court indicated that it would reserve ruling on Penn State's motion for sanctions until the Third Circuit issued its decision. (Id.) On January 6, 2021, the Third Circuit dismissed Parshall's appeal for lack of jurisdiction. (Doc. 92.) Accordingly, Penn State's motion for sanctions is now ripe for disposition. DISCUSSION Penn State argues that Parshall failed to comply with the court's orders to fully and completely respond to Interrogatories 2, 3, 5, 7, 9, and 14, as well as Penn State's request for production of documents, and details how it believes Parshall's responses are deficient. (Doc. 59, pp. 9–20.) As to Interrogatories 2, 3, 5, 7, and 9, the court finds that Parshall's responses are sufficient. Although Parshall's responses may not be as thorough or responsive as Penn State would like, Parshall has responded to these interrogatories adequately. However, the court finds that Parshall has not adequately responded to Interrogatory 14 or Penn State's request for production of documents. Penn State submits that Parshall provided a false response to Interrogatory 14 by failing to identify his Illinois registration of the alleged infringing marks, “making it feasible that he has declined to disclose other state registrations.” (Id. at 14–15.) Further, Parshall has represented that his application to the United States Patent and Trademark Office (“USPTO”) was provisionally granted, which is directly contradicted by the USPTO's public record stating that Parshall's application for “PENN STATE NITTANY BEER” is not final and Parshall must address the likelihood of confusion, false connection refusal, and disclaimer issues within six months of December 17, 2019. (Id. at 15; Doc. 59-7.) The court agrees with Penn State that Parshall's failure to provide a truthful and accurate response to Interrogatory 14 is in violation of the court's prior orders as well as the Federal Rules of Civil Procedure. Regarding Penn State's request for production of documents, the court previously ordered Parshall to search and produce responsive documents from his computer. (Doc. 59, pp. 15–16.) Penn State argues that Parshall has not searched for responsive emails or any other electronically stored information. (Id. at 16.) In arguing this, Penn State provides examples of documents that it believes are clearly missing and submits that the attorney Parshall utilized to assist in his discovery responses was not given access to Parshall's emails and did not believe Parshall searched his computer or emails. (Id. at 16–18; Doc. 59–2.) Additionally, Parshall uses his computer to operate his Sports Beer Brewing website, has represented that he has had his computer for twenty years, and communicates with Penn State's counsel via email. (Doc. 59, p. 18.) Parshall has not provided the court with any credible proof that establishes a genuine inability to search his computer for responsive documents. Thus, based on all of this information and the clear failure of Parshall to search his computer, the court finds that Parshall has not fully responded to Penn State's request for production of documents by failing to search for electronically stored information in violation of this court's orders and the Federal Rules of Civil Procedure. Accordingly, the court must impose sanctions against Parshall for his disregard of the court's March 27, 2020, and May 4, 2020 orders requiring compliance with Plaintiff's discovery requests and the Federal Rules of Civil Procedure. Rule 37(b)(2) provides that a party may be sanctioned if a party “fails to obey an order to provide or permit discovery,” and the court may issue further just orders to include the following sanctions: *3 (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). Penn State argues that the court should enter a default judgment against Parshall for his failure to comply with the court's orders. (Doc. 59, pp. 21–28.) The court is not persuaded that the harsh and final action of entering a default judgment is an appropriate sanction for Parshall's discovery violations. While Parshall's recalcitrance has created delays and difficulties in prosecuting this case, Parshall has not truly impeded Penn State's ability to move forward with its trademark infringement case. Thus, the court will not impose the sanction of a default judgment against Parshall for the instant discovery violations. Alternatively, Penn State argues that Parshall should be sanctioned through several adverse inference instructions and a preclusion order under Rule 37(b)(2)(A)(i) and (ii). First, Penn State submits that Parshall should be precluded from introducing any evidence in his defense that was in his possession prior to May 18, 2020, including his emails or documents on his computer, which was not produced to Penn State by that date. (Doc. 59, pp. 29–30.) The court finds that this is a reasonable and warranted sanction within the confines of Rule 37(b)(2)(A)(ii) because Parshall was given multiple opportunities to cure the defects in his responses through correspondence with Penn State's counsel and by court order. Second, Penn State avers that Parshall should be precluded from arguing that his state registrations are a defense to his infringement. Because Parshall has provided incomplete, at best, but potentially false responses regarding his state trademark registrations in response to Interrogatory 14, the could finds it appropriate to preclude Parshall from asserting that any state registrations not previously disclosed to Penn State are a defense to Penn State's claims. This, again, is in compliance with Rule 37(b)(2)(A)(ii) and an appropriate sanction that is proportionate to Parshall's discovery failures. The remaining sanctions requested by Penn State are for specific adverse inferences and preclusions for Parshall's purported failure to respond to Interrogatories 2, 3, 5, 7, and 9, as well as specific requests for production of documents. (Doc. 59, pp. 31–38.) Because the court did not find Parshall's responses to those interrogatories or request for production of documents deficient, it cannot impose sanctions, particularly in the form of an adverse inference, as requested by Penn State.[2] *4 Lastly, Penn State argues that it is entitled to costs and fees for the filing of its motion for sanctions. Rule 37(b)(2)(c) requires the court to order the “disobedient party ... to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” The court will reserve ruling on whether to order Parshall to pay Penn State's expenses pending the opportunity for Parshall to show cause why the court should not order the payment of expenses in accordance with Rule 37(b)(2)(C). CONCLUSION Accordingly, for the reasons stated herein, IT IS ORDERED THAT Penn State's motion for sanctions, Doc. 58, is GRANTED IN PART AS FOLLOWS: 1) The court finds that Parshall has failed to provide a truthful and accurate response to Interrogatory 14 in violation of the Federal Rules of Civil Procedure and this court's March 27, 2020, Doc. 37, and May 4, 2020, Doc. 46, orders. 2) The court finds that Parshall has failed to search for electronically stored information in violation of the Federal Rules of Civil Procedure and this court's March 27, 2020, Doc. 37, and May 4, 2020, Doc. 46, orders. 3) As sanctions for these failures, Parshall is precluded from introducing any evidence in his defense that was in his possession prior to May 18, 2020, including emails or documents on his computer, which was not produced to Penn State by that date; and is precluded from asserting that any state trademark registrations not previously disclosed to Penn State are a defense to Penn State's claims. 4) The court reserves ruling on Penn State's fee requests. Parshall shall show cause by February 3, 2021 why the court should not order the payment of costs and fees in accordance with the mandate in Federal Rule of Civil Procedure 37(b)(2)(C). Penn State may submit a response, including the specific costs and fees requested, by February 17, 2021. Footnotes [1] For ease of reference, the court utilizes the page numbers from the CM/ECF header. [2] The court notes that it found that Parshall's failure to search for electronically stored information was in violation of the court's prior orders. Because it is not known whether responsive documents would have been located in this search, the court cannot in good faith impose sanctions for a failure to produce certain documents that may or may not exist.