286 F.R.D. 288
E.D. Va.2012Background
- DuPont seeks post-judgment asset-related discovery from Kolon in aid of collection; motion renewed as MOTION TO COMPEL II after MOTION TO COMPEL I partial resolution.
- Court previously granted MOTION TO COMPEL I in part (May 11, 2012) focusing on Customer Information, and on ownership-related agreements; other requests denied.
- DuPont seeks Customer Information not only from Kolon Industries, Inc. and Kolon Corporation but also from related Kolon entities identified in Exhibits 1 and 2.
- Kolon contends it has complied post-verdict and that DuPont has already received sufficient information to enforce the judgment.
- DuPont has also pursued enforcement in SDNY, arguing Kolon’s statements there show control over Kolon network information; Kolon contends this is forum shopping.
- Court analyzes the scope and reach of post-judgment discovery, including control/possession concepts and corporate-structure considerations to determine which entities must produce information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the scope of post-judgment asset discovery is properly tailored | DuPont seeks broad asset information across related Kolon entities. | Kolon argues discovery should be limited to assets that aid judgment enforcement and avoid fishing for irrelevant data. | Yes; discovery must be targeted to assets that aid enforcement; broad fishing is disallowed. |
| Whether Customer Information from related Kolon entities must be produced | DuPont asserts control/ownership links allow production from entities listed in Exhibits 1–2. | Kolon contends only the directly named defendants bear production obligation; others not under judgment authority. | Kolon Industries, Inc. and Kolon Corporation must produce Customer Information for related entities with ownership links under Exhibit 2; Exhibit 1 entities partially compelled. |
| What constitutes control/possession for nonparties under Rule 34 and related case law | Control exists where Kolon can obtain documents from related entities; ownership/consolidation show control. | Control is limited; nonparties should not be forced to produce without clear authority. | Control evidenced by ownership, consolidation, and related financial structures; production required from the related entities. |
| Whether ownership documents and agreements regarding Kolon entities are discoverable | Documents showing ownership in Kolon-related entities are relevant to enforcement. | Only ownership documents that show an ownership interest of Kolon in other entities are within scope. | MOTION TO COMPEL II granted to the extent of producing ownership-related documents (e.g., stock certificates, shareholder agreements, etc.). |
| Whether the corporate restructuring (spin-off) affects substitution or continuation of the action | Rule 25(c) considerations apply; the action should reach the reorganized entities. | No substitution motion filed; original party remains Kolon Industries, Inc. | Rule 25(c) governs continuation; the restructured entities may be compelled under the same action where appropriate. |
Key Cases Cited
- Bush v. Ruth's Chris Steak House, Inc., 286 F.R.D. 1 (D.D.C. 2012) (test for agency/ability to obtain documents from nonparties)
- Steele Software Systems v. DataQuick Information Systems, Inc., 237 F.R.D. 561 (D.Md. 2006) (factors for evaluating production from related non-parties)
- Afros S.P.A. v. Krauss-Maffei Corporation, 113 F.R.D. 127 (D.Del. 1986) (nonparty document production considerations)
- Caisson Corp. v. County Western Building Corp., 62 F.R.D. 331 (E.D. Pa. 1974) (broad scope of post-judgment discovery for asset tracing)
- Libaire v. Kaplan, 760 F.Supp.2d 288 (E.D.N.Y. 2011) (wide latitude in post-judgment discovery)
- ClearOne Communications, Inc. v. Chiang, 276 F.R.D. 402 (D. Mass. 2011) (liberal discovery standard for aiding judgment execution)
- Fed. R. Civ. P. 69(a)(2), (rule) () (source of post-judgment discovery authority)