Alcon Vision, LLC. v. Lens.com, Inc.
1:18-cv-00407
E.D.N.YNov 10, 2020Background
- At a July 6, 2020 discovery hearing the court ordered Lens.com to produce purchase orders, sales records, and supplier invoices for Alcon products (since 2014) and communications with suppliers (since 2012), plus certain customer communications.
- Lens.com voluntarily dismissed its antitrust counterclaims on August 5, 2020 and moved to vacate the July 6 discovery rulings; the court denied reconsideration on August 18 and extended the production deadline to August 21, 2020.
- Lens.com missed the deadline and produced limited materials: summary spreadsheets, about 64 exemplar invoices, restricted supplier transactional records (excluding some U.S. suppliers), and initially searched emails from only one custodian.
- Lens.com then sought to narrow or amend affirmative defenses and requested “clarification” of the court’s discovery orders (filed Aug. 31), and later produced additional spreadsheets and sales data.
- The court concluded Lens.com’s earlier productions were deficient but modified its prior orders to limit production to documents concerning the four allegedly infringing products (DACP, AOC, AOHG, O2 Optix) and to timeframes tied to alleged infringement.
- The court ordered completion of production by November 18, 2020, declined to hold Lens.com in contempt, but awarded Alcon reasonable fees and costs for litigating the Motion to Vacate, the Show Cause motion, and Lens.com’s clarification motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lens.com violated court discovery orders and should be held in contempt or sanctioned | Alcon argued Lens.com failed to comply with July 6 and Aug. 18 orders (missed deadline, incomplete production) and sought contempt | Lens.com said it produced documents (Aug 21–25), later produced more, and sought clarification because of burden and narrowed defenses | Court declined to find contempt but found wrongful noncompliance and awarded fees/costs to Alcon as sanction |
| Proper scope (products/time/suppliers) of required transactional records | Alcon sought all sales/purchase orders/invoices for Alcon products since 2014 and communications since 2012 | Lens.com said discovery related primarily to overseas/gray-market vendors and limited production accordingly; later narrowed defenses to exclude anticompetitive allegations | Court limited scope to four allegedly infringing products and to timeframes tied to each product’s alleged infringement; transactional records must include suppliers regardless of U.S. location |
| Whether summary spreadsheets suffice in lieu of underlying business records | Alcon argued spreadsheets are insufficient; requested underlying purchase orders and detailed sales records | Lens.com produced litigation-created spreadsheets and claimed burden to produce native transactional records | Court held spreadsheets cannot substitute for ordinary-course transactional records and ordered production of underlying documents by Nov. 18, 2020 |
| Proper remedy for noncompliance (fees vs. harsher sanctions) | Alcon sought contempt and sanctions for failure to comply | Lens.com urged compliance and clarification; argued burden and that narrowing defenses reduced relevance | Court exercised discretion under Rule 37: denied contempt, imposed monetary sanction (fees/costs) and ordered completion of production; left open further sanctions for continued noncompliance |
Key Cases Cited
- Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) (district court has broad discretion in fashioning sanctions for non-production)
- S.E.C. v. Razmilovic, 738 F.3d 14 (2d Cir. 2013) (court has wide discretion under Rule 37)
- Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130 (2d Cir. 2007) (sanctions must be just and commensurate with noncompliance)
- Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298 (2d Cir. 2009) (factors to consider when imposing discovery sanctions)
- Antonmarchi v. Consol. Edison Co. of N.Y., [citation="514 F.App'x 33"] (2d Cir. 2013) (application of Agiwal factors regarding sanctions)
- King v. Allied Vision, Ltd., 65 F.3d 1051 (2d Cir. 1995) (requirements for civil contempt: clear order, clear and convincing proof, lack of diligent attempt to comply)
- Monsanto Co. v. Haskel Trading, Inc., 13 F.Supp.2d 349 (E.D.N.Y. 1998) (discussing court's inherent contempt power)
- N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339 (2d Cir. 1989) (civil contempt aims to coerce compliance)
- Chevron Corp. v. Donziger, 296 F.R.D. 168 (S.D.N.Y. 2013) (sanctions should restore prejudiced party to position as if discovery had been produced)
- Mugavero v. Arms Acres, Inc., 680 F.Supp.2d 544 (S.D.N.Y. 2010) (awarding fees as lesser sanction for discovery failures)