Amy J. Eldridge (VSB # 77873) 

K&L Gates LLP 

1601 K Street NW 

Washington, DC 20006 

Telephone: (202) 778-9000

Facsimile: (202) 778-9100 

Email: amy.eldridge@klgates.com

and

David S. Catuogno (admitted pro hac vice)

K&L Gates LLP 

One Newark Center, 10th Floor 

Newark, NJ 07102 

Telephone: (973) 848-4000 

Facsimile: (973) 848-4001 

Email: david.catuogno@klgates.com

Counsel for Donlen Trust 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

In re: 

TOYS “R” US, INC. et al.,

1

 Debtors. 

Chapter 11 

Case No. 17-34665 (KLP) 

 (Jointly Administered)

WAYNE SERVICES LEGACY INC., 

 Plaintiff, 

v.

DONLEN TRUST, 

 Defendant. 

Adv. Pro. 19-03074 (KLP) 

1

 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s 

federal tax identification number, are set forth in the Order (I) Directing Joint Administration of 

Chapter 11 Cases and (II) Granting Related Relief (Docket No. 78). 

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DONLEN TRUST’S RESPONSE IN OPPOSITION TO WAYNE SERVICES’ 

MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND 

INCORPORATED MEMORANDUM 

Defendant Donlen Trust (“Donlen Trust” or the “Defendant”) by and through its counsel 

K&L Gates LLP, hereby responds to Plaintiff Wayne Services Legacy, Inc.’s (“Plaintiff” or 

“Wayne Services”) Motion to Compel Production of Documents (“Motion”) (dkt. no. 46) made 

pursuant to Federal Rule of Civil Procedure (“FRCP”) 37(a), which is made applicable to this 

proceeding by Federal Rule of Bankruptcy Procedure (“FRBP”) 7037. In what is quickly 

becoming a pattern, Plaintiff has brought yet another discovery dispute before the Court that could 

have been resolved between the parties. Plaintiff has ignored multiple and clear statements from 

Plaintiff in filing this Motion and, Defendant respectfully submits, presents discussions to the 

Court in a manner that lacks candor. Because Plaintiff failed to meet and confer in good faith, 

Plaintiff’s Motion should be dismissed or denied. 

 In support thereof, Defendant states as follows: 

BACKGROUND

1. On December 10, 2019, Donlen Trust completed production of the documents 

originally identified as responsive to Plaintiff’s requests for production. This included 

information related to the documents sought in Request Nos. 10 and 11, which sought “all” 

evidence or documents of payment and invoices. Dkt. no. 46 at 3. In their objections, 

Defendants indicated they would produce “documents sufficient to show” the information 

Plaintiff sought. Id. At 3-4. 

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2. Subsequently, Plaintiff sought additional evidence regarding some of the topics 

identified in those discovery requests, which Defendant provided on December 27, 2019, 

January 3, 2020.

3. Plaintiff sought still more information. To provide that information to Plaintiff, 

Defendant had to begin a process of creating documents for Plaintiff. 

4. While Defendant believes this goes beyond the scope of its discovery obligations, 

Defendant has worked extensively to engage productively in the discovery process and resolve 

any issues between the parties. 

5. Nonetheless, Plaintiff filed the subject Motion to Compel on January 3, 2020, 

even while it knew Defendant was going to additional lengths to provide information to Plaintiff 

when it asked. In addition, Plaintiff’s motion seeks documents exceeding the scope of those 

Donlen agreed to produce. See, Proposed Order, dkt. no. 46 at 12, #2. 

6. Further, Plaintiff neglected to inform the Court of the on-going process, or that 

Defendant had agreed to seek additional material for Plaintiff, and instead characterized this as a 

“refusal” to produce missing documents. Dkt. no. 46 at 6 ¶ 16. 

7. Plaintiff also falsely represented to the Court that Defendant “declined” to provide 

materials, and characterized them as “missing.” Dkt. no. 46 at 6 ¶ 16. 

8. In support of its motion, Plaintiff submitted e-mail chains with earlier dated 

communications, but excluded entirely the communications between the parties from January 2-3 

on this precise topic. A true and complete copy of that e-mail is Exhibit A to the declaration 

filed in support of this opposition. As reflected therein, Defendant highlighted for Plaintiff that 

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Defendant was “currently working” to gather additional material and had provided the exact 

commitment Plaintiff sought. Exhibit A at 2. 

9. Nonetheless, Plaintiff forged ahead with its unnecessary discovery motion 

practice, again certifying that it had complied with local rule 7026-1(H) and conferred in good 

faith to resolve the discovery matter prior to filing the instant motion. See, dkt. no. 46 at 8 ¶ 21. 

Defendant respectfully suggests to the Court that the e-mail communications Plaintiff chose to 

exclude demonstrates otherwise. 

10. Notwithstanding Plaintiff’s actions, Defendant maintained its commitment and 

provided yet more information to Plaintiff, in documents created for it, on January 8 and January 

15. Production cover letters for those documents are Exs. B and C to the supporting declaration. 

11. Plaintiff continues to seek additional information. While Defendant believes this 

information is duplicative and cumulative, and therefore unduly burdensome, as well as beyond 

the “documents sufficient to show” that Defendant agreed to produce, it is working to see if it 

can again create a document for Plaintiff. 

ARGUMENT AND BASIS FOR REQUESTED RELIEF 

PLAINTIFF’S MOTION SHOULD BE DISMISSED OR DENIED 

12. Dismissal is warranted because of Plaintiff’s failure to meet and confer in good 

faith. Local Rule 7026-1(H) requires counsel to confer “to decrease, in every way possible, the 

filing of unnecessary discovery motions.” In particular, Local Rule 7026-1(H) prohibits filing a 

motion concerning discovery matters until counsel has conferred with opposing counsel to 

explore “the possibility of resolving the discovery matters in controversy.” 

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13. Plaintiff manufactured the discovery dispute at issue by cutting short the meet and 

confer process. This does not evidence good faith. The Motion relies on, at best, partial email 

correspondence between the Parties to allege that Defendant refused to produce responsive 

documents to Plaintiff’s Request Nos. 10 and 11. However, the Parties’ complete 

correspondence demonstrates that Plaintiff failed to meet and confer in good faith, failed to 

reflect the extent to which Defendant had gone to satisfy Plaintiff’s requests, and even failed to 

accurately reflect to the Court what Defendants had produced or agreed to produce in response to 

Plaintiff Request Nos. 10 and 11. 

14. Courts recognize that where a party short-circuits the meet-and-confer process it 

“deprive[s] the parties of a meaningful opportunity to resolve their dispute without court 

intervention.” Blackrock Engineers, Inc. v. Duke Energy Progress, LLC, 7:15-CV-250-D, 2018 

WL 4409377, at *5 (E.D. NC Sept. 17, 2018). The court found that alone was a basis for 

dismissal. 

15. Similarly, where a party sought to engage with opposing counsel regarding the 

discovery schedule and deadlines for producing written discovery, and plaintiff’s counsel instead 

filed a motion for sanctions, the court found plaintiff’s counsel failed to engage in a good faith 

effort to resolve the issue and declined plaintiff’s request to assess the costs of brining the 

motion. Kemp v. Harris, 263 F.R.D. 293, 295 (D. Md. Sep. 22, 2009). As the court there noted, 

“this entire dispute could, and should, have been avoided had counsel cooperated in the conduct 

of discovery, as they are obligated to do.” Id. 

16. Here, Defendant has communicated to Plaintiff that it has been going above and 

beyond to meet additional requests by Plaintiff, and that to do so, it is having to create 

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documentation. Plaintiff failed to make a good faith effort to resolve the discovery dispute and 

instead filed the Motion without considering, or otherwise explaining why Defendant’s 

commitment (Exhibit A at 2-4) was insufficient. Instead, Plaintiff filed the Motion, wasting the 

Court’s and the parties’ time and resources. 

17. As in Blackrock, Plaintiff’s rush to engage in motion practice should result in 

dismissal of its Motion. And the Court should deny any request for compensation or other relief 

based on Plaintiff’s repeated short-circuiting of the good faith meet-and-confer requirements. 

18. This Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334. 

CONCLUSION 

For all of the foregoing reasons, Defendant Donlen Trust submits that the Court should 

DENY or DISMISS Plaintiff’s Motion in its entirety, and in no instance should the Court order 

Donlen to produce records exceeding the scope of those to which it agreed, as Plaintiff’s proposed 

order seeks. 

Respectfully Submitted, 

Dated: January 21, 2020 By: /s/ Amy J. Eldridge 

 Amy J. Eldridge, Esq. (VSB No. 77873) 

K&L Gates LLP

1601 K Street NW 

 Washington, DC 20006 

 Telephone: 202-778-9400 

 Fax: 202-778-9100 

 Email: amy.eldridge@klgates.com

 and 

David S. Catuogno (pro hac vice)

K&L Gates LLP

One Newark Center, 10th Floor 

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Newark, NJ 07102 

Telephone: (973) 848-4000 

Facsimile: (973) 848-4001 

Email: david.catuogno@klgates.com

Counsel for the Donlen Trust

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CERTIFICATE OF SERVICE 

I hereby certify that on January 21, 2020, I electronically filed the foregoing with the 

Clerk of Court using the CM/ECF system, which shall send notification of such filing (NEF) to 

all counsel of record, who are the individuals listed below: 

J.R. Smith 

Jennifer E. Wuebker 

HUNTON ANDREWS KURTH LLP 

Riverfront Plaza, East Tower 

951 East Byrd Street 

Richmond, Virginia 23219 

Telephone: (804) 788-8200 

Email: jrsmith@hunton.com 

 jwuebker@hunton.com

Dated: January 21, 2020 By: /s/ Amy J. Eldridge 

 Amy J. Eldridge, Esq. (VSB No. 77873) 

K&L Gates LLP

1601 K Street NW 

 Washington, DC 20006 

 Telephone: 202-778-9400 

 Fax: 202-778-9100 

 Email: amy.eldridge@klgates.com

Counsel for the Donlen Trust

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